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State of New Jersey v. John Brek


May 22, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 09-11-01260.

Per curiam.


Argued October 4, 2011 -

Before Judges Payne and Hayden.

Defendant John Brek appeals from an October 19, 2010 Law Division order denying his motion for the return of weapons and other personal property seized by the State during a consent search of his home. Having considered the record and the applicable law, we reverse and remand to the trial court for the return of defendant's property.

The facts that gave rise to this controversy are not in dispute. In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice-President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.

Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President's plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant's work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12-3b, receiving stolen property, N.J.S.A. 2C:20-7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f(1). A restraining order was issued barring defendant from any contact with the President or his family.

Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant's possession when he was arrested at his place of employment.

While defendant was incarcerated, he was evaluated by two mental health professionals. The prison counselor who examined defendant in early November 2009 found:

Despite current situation and incarceration, the inmate appeared relatively well-adjusted and psychiatrically stable at this time. The inmate appeared mildly anxious, which seemed appropriate for his current situation. He was able to contract for safety with this writer and did not appear to be a danger to himself or others.

The prison psychiatrist concurred with the finding that defendant was stable and was not a risk to himself or others.

Shortly thereafter, psychologist Dr. Robert Daley evaluated defendant in the jail at the request of defense counsel. Dr. Daley determined that, other than the anxiety defendant was feeling from being in jail, he had no other significant, severe, or incapacitating mental disorder. Review of the relevant history and examination of Mr. Brek, including psychological testing, fails to reveal evidence of significant maladaptive personality traits or patterns of dysfunctional behavior . . . . There is no significant history of impulsive, hostile or explosive behavior.

In the opinion of the undersigned, Mr.

Brek is not now nor has he ever been a danger or threat to himself or anyone else.

The relevant history indicates good ego strength, which is the ability to deal with unpleasant or difficult realities without becoming symptomatic or dysfunctional in any significant fashion. There is no psychiatric reason to preclude the return of his firearms or of his licenses to possess and use them.

On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant's conjectures at the lunch truck, N.J.S.A. 2C:33-4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.

On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor "concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat." The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which "the State concede[d] he passed." Nonetheless, based upon "the whole totality of the circumstances," the State opposed the return of the weapons. In denying defendant's motion, the trial judge, without providing any legal basis, ruled:

[W]e live in a very different time [since September 11, 2001] and in a very different world; we don't engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything. . . . Mr. Brek's character is not at issue. At no time has the State - at least to my knowledge - brought . . . [Mr.] Brek's character into this. . . . I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek's application for the return of his weapons.

This appeal followed.

We first address our standard of review. We defer to the trial court's fact-findings, especially those influenced by matters such as observations of the character and demeanor of a witness that are not transmitted by the record. State v. Locurto, 157 N.J. 463, 474 (1999). Thus, we will not disturb a trial court's fact-findings "unless those findings would work an injustice." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

On appeal, defendant contends that, by retaining his property, the State is interfering with his Second Amendment right to bear arms and has taken his property without due process in violation of the Fifth Amendment. Because the State did not have any legal basis to keep the property, defendant contends he is entitled to have it returned.

The State asserts that it was entitled to retain defendant's property as defendant violated the law by his illegal activities, including possession of a stolen gun and hollow point bullets. Thus, the State contends that "forfeiture of the weapons and other personal property was proper" as "defendant's entire conduct can be credibly viewed as being a threat to the public health, safety and welfare." The State acknowledged at oral argument, however, that it had not filed a forfeiture action and suggested a remand to the trial court to allow the State to do so.

We begin by restating the basic principle that forfeitures are not favored in the law. State v. 1979 Pontiac Trans Am, 98 N.J. 474, 481 (1985); State v. One 1985 Ford Bronco, 261 N.J. Super. 643, 646 (App. Div. 1993). Forfeiture of property seized by the State must be done pursuant to the Forfeiture Statute, N.J.S.A. 2C:64-1 to -9. Further, the statute must be strictly construed against the State and "in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994) (citations omitted).

A forfeiture is an in rem action brought against two types of property, prima facie contraband and derivative contraband. Id. at 232-33. Prima facie contraband includes firearms unlawfully possessed, carried, acquired or used. N.J.S.A. 2C:64-1(a)(1). Derivative contraband includes property that has been or "is intended to become an integral part of illegal activity," or "proceeds of illegal activities." N.J.S.A. 2C:64-1(a)(2),(3),(4).

Unlike prima facie contraband, derivative contraband is not automatically forfeited to the State. N.J.S.A. 2C:64-3. To obtain a forfeiture of derivative property, the State must bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64-3a. In that action, the State must prove by a preponderance of the evidence that there is a "proximate and substantial" causal connection between the property and an indictable offense. Seven Thousand Dollars, supra, 136 N.J. at 234-35; see also One 1985 Ford Bronco, supra, 261 N.J. Super. at 647.

We have noted that the obligation to conduct forfeiture proceedings "in conformity with time requirements is of constitutional dimension." State v. Cavassa, 228 N.J. Super. 204, 210 (App. Div. 1988). We have also recognized that an unjustified delay in bringing forfeiture proceedings results in "the deprivation of property during the intervening period [which] constitutes a denial of due process." State v. One Ford Van Econoline, 154 N.J. Super. 326, 336 (App. Div. 1985). The State need not seek forfeiture of every potential derivative contraband, but "if the State does seek forfeiture of non-prima facie contraband, it must proceed by a civil action. Failure to do so deprives the State of its right to retain the articles." Dragutsky v. Tate, 262 N.J. Super. 257, 261 (App. Div. 1993).

It is not disputed that the property seized by the State that defendant requests be returned was lawfully acquired, that plaintiff had obtained the necessary permits to purchase the firearms, and that defendant's possession of the firearms and other weapons in his residence was lawful. Thus, the State has alleged no facts before the trial judge or on appeal that would give rise to a claim of prima facie forfeiture. N.J.S.A. 2C:64-1a(1). Consequently, the State could only seek derivative forfeiture of defendant's property, for which it was required to bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64-3a.

Not only has the State failed to file a timely civil action, it has provided no extenuating circumstances to request an equitable extension of time. More importantly, the State does not make a claim or allege any facts to demonstrate that the property seized meets the statutory definition of derivative contraband, N.J.S.A. 2C:64-1a. Nowhere in the record does the State allege that the property at issue was used in furtherance of a crime, as an integral part of an illegal activity, or as the proceeds of illegal activity.

Instead, the State argued that forfeiture was appropriate because defendant's possession of hollow point bullets and a stolen rifle had shown that he was a threat to the public health, safety and welfare. The State compared the forfeiture of defendant's property to the revocation or denial of a firearms permit if a person is found to be a threat. N.J.S.A. 2C:58-3. The trial judge, without referencing any statute, also used this analogy. We reject this argument as inapposite. This action does not involve the application for or revocation of a firearms permit under N.J.S.A. 2C:58-3, which is based upon a different statutory scheme than the Forfeiture Act. Furthermore, the property held by the State consists of many items, such as knives and bows and arrows, not covered by the firearms law.

Based upon the record before us, we cannot uphold the trial judge's finding that the State had the right to retain defendant's property as it was not based upon the required procedure in the Forfeiture Statute. Under that law, the State was required to file a civil action for forfeiture within ninety days of the seizure of the property. N.J.S.A. 2C:64-3a. The State neither made the requisite filing nor proffered extenuating circumstances for an extension of that time limitation. Even when requesting a remand for a forfeiture hearing, the State did not contend that requisite facts existed to prove the elements for prima facie or derivative contraband under N.J.S.A. 2C:64-1a. Accordingly, as the State had not moved timely under the Forfeiture Act, defendant is entitled to have his property returned to him.

Reversed and remanded to the trial court for proceedings in accordance with this opinion. We do not retain jurisdiction.


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