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Dragutsky v. Tate

Decided: February 19, 1993.

LEONARD E. DRAGUTSKY, PLAINTIFF-APPELLANT,
v.
HERBERT H. TATE, ESSEX COUNTY PROSECUTOR, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Essex County.

Pressler, R.s. Cohen and Muir, Jr. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

This is a civil action against the Essex County Prosecutor seeking the return of $6,485.76 seized from plaintiff when he was arrested in 1987. The action was dismissed as untimely. We reverse.

Plaintiff and a friend were arrested in a car in Bloomfield. The friend was driving and plaintiff was the passenger. We cannot tell from the fragmentary record what led to the arrest. All we know is that plaintiff and his friend were both charged with the disorderly persons offense of possessing CDS or a CDS analog and failing "to voluntarily deliver the substance to the nearest law enforcement officer," N.J.S.A. 2C:35-10c. The friend was found guilty in the Municipal Court. Plaintiff was given a conditional discharge. See N.J.S.A. 2C:36A-1.

When he was arrested, plaintiff was carrying cash in the amount of $6,485.76. In an affidavit, plaintiff says his friend was driving him to take his auto driver's examination, and the money, "was to be used to purchase a vehicle upon [his] passing the aforementioned driving examination." The money was transferred after seizure to the Essex County Prosecutor's Office. The Office declined to return the money to plaintiff "because it was believed that the money was connected with narcotics activity."

There the matter stood until plaintiff started this action in replevin. The Law Division dismissed it on the ground that it was barred by a three-year statute of limitations contained in the forfeiture statute. We disagree with that reading.

The statute subjects to forfeiture all "prima facie contraband," which is CDS, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, and untaxed cigarettes. N.J.S.A. 2C:64-1a(1). In addition to prima facie contraband, the statute also permits forfeiture of all property used or intended to be used "in furtherance of an unlawful activity, including conveyances and real estate," N.J.S.A. 2C:64-1a(2); property which has become or is intended to become "an integral part of illegal activity," N.J.S.A. 2C:64-1a(3); and proceeds of illegal activities, including property or money obtained as the result of the sale of prima facie contraband, N.J.S.A. 2C:64-1a(4).

N.J.S.A. 2C:64-1b makes it crystal clear that prima facie contraband and property posing an immediate threat to public health, safety or welfare may be seized without process, and that all other property subject to forfeiture may be seized as evidence for a criminal prosecution or by process issued by any court of competent jurisdiction, except when such seizure would not be inconsistent with constitutional law. Seizure, however, is not the end of the story. It is not equivalent to forfeiture.

Forfeiture of prima facie contraband after completion of the criminal proceeding, subject to the rights of innocent

other persons, does not require a judicial proceeding. Forfeiture of other property, however, requires the State to initiate a civil action within ninety days of the seizure. N.J.S.A. 2C:64-3a. State v. Cavassa, 228 N.J. Super. 204, 549 A.2d 458 (App.Div.1988). It is an in rem action against the property itself. Notice must be given to all persons known to have an interest in the property. N.J.S.A. 2C:64-3c. Notice requirements for in rem actions must be satisfied. See R. 4:4-5; 4:26-5.

It is noteworthy that the statute as originally adopted contained no deadline for the State to file the forfeiture action. L. 1978, c. 95. A 1979 amendment established a thirty-day deadline, L. 1979, c. 344, ยง 3. In 1981, the statute was again changed to give the ...


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