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State v. Franklin Savings Account Number 2067

December 7, 2006

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANKLIN SAVINGS ACCOUNT NUMBER 2067, HELD IN THE NAME OF ROY A. SILVER, SR., WITH AN APPROXIMATE BALANCE OF $6,558.88, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Salem County, L-144-05.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 4, 2006

Before Judges Skillman, Holston, Jr. and Grall.

The State appeals from a final order dismissing its complaint for forfeiture of Franklin Savings Account No. 2067 (account 2067). That account is held in the name of Roy A. Silver, Sr. The trial court granted Silver's motion to quash the State's subpoena for bank records, precluded further discovery and concluded that the State's evidence was inadequate to establish grounds for forfeiture. The court also required the State to pay costs and counsel fees in the amount of $1038.

In the context of this case, the State's violation of Rule 4:14-7(c) did not prejudice Silver or deprive him of the protection that the rule affords. Despite the inconsequential nature of the State's discovery violation, the court imposed a sanction that was tantamount to a dismissal of the State's case with prejudice. Because entry of that order was a mistaken exercise of discretion, which works an injustice, we reverse.

This forfeiture action was commenced following a criminal investigation by law enforcement officers of the State of Delaware. On February 22, 2005, the grand jurors for the Superior Court of New Castle County returned an indictment charging Silver with racketeering, receipt of stolen property and tax evasion. On March 18, 2005, the State of New Jersey applied for an order authorizing seizure and restraint of account 2067. That application was supported by affidavits from an investigator of this State and an officer involved in the investigation that led to the Delaware indictment. The affidavits included a reference to a $19,000 deposit to account 2067. A judge of the Superior Court of New Jersey determined that the affidavits established probable cause to believe that account 2067 was subject to forfeiture pursuant to N.J.S.A. 2C:64-1. Specifically, the judge determined that there was probable cause to believe that account 2067 was an integral part of, utilized in furtherance of, or contained proceeds of unlawful activity - receipt of stolen property, N.J.S.A. 2C:20-7; fencing, N.J.S.A. 2C:20-7.1; and money laundering, N.J.S.A. 2C:21-25. The judge entered an order that authorized seizure of the account and required the bank to give the State access to the records.

Pertinent to the issues on this appeal, the order of March 18, 2005, provides: "[T]he holder of the property shall . . . provide to representatives of the New Jersey Division of Criminal Justice all records respecting the captioned property, whenever requested during normal business hours . . . ." By letter dated March 22, 2005, the State forwarded a copy of this order to Silver. Silver did not challenge the order.

On June 7, 2005, the State filed a civil complaint seeking forfeiture of account 2067. Paragraph ten of that complaint includes an express reference to the March 18, 2005 order.

Silver retained an attorney and filed an answer and an amended answer.

On September 9, 2005, the State issued a subpoena and, by letter of the same date, sent Silver's attorney a copy of the subpoena. The subpoena commanded the bank to produce at depositions "[a]ny and all records of Franklin Savings Bank account number 2067, held in the name of Roy A. Silver, Sr. . . . ." The subpoena also advised: "Sending clear copies of the front and back of said documents prior to the [scheduled date and time of the oral deposition noticed herein] will constitute compliance with this subpoena."

On September 14, 2005, Silver's attorney notified the State that its subpoena did not comply with the Rules of Court. He referred the deputy attorney general to Rule 4:14-7(c), which provides:

The subpoena shall state that the subpoenaed evidence shall not be produced or released until the date specified for the taking of the deposition and that if the deponent is notified that a motion to quash the subpoena has been filed, the deponent shall not produce or release the subpoenaed evidence until ordered to do so by the ...


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