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State v. Two Thousand Two Hundred Ninety-Three Dollars ($2

Superior Court of New Jersey, Appellate Division

April 24, 2014

STATE OF NEW JERSEY, Plaintiff-Respondent,

 Argued March 4, 2014

Approved for Publication July 17, 2014.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-6978-09.

Rachel E. King argued the cause for appellant James Baker ( Appellate Litigation Clinic Earle Mack School of Law at Drexel University, attorneys; Amy Montemarano, on the brief).

Thomas Haluszczak, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey ( Grace H. Park, Acting Union County Prosecutor, attorney; Mr. Haluszczak, of counsel and on the brief).

Before Judges MESSANO, HAYDEN and ROTHSTADT. The opinion of the court was delivered by MESSANO, P.J.A.D.


Page 261

[436 N.J.Super. 500] MESSANO, P.J.A.D.

James Baker appeals from the Law Division's order of April 18, 2012, that denied his motion for the return of certain property, specifically $2293 (the monies) seized by the State of New Jersey (the State). We set forth the procedural history.

On April 16, 2009, the State filed a complaint in the Law Division, Special Civil

Page 262

Part, seeking forfeiture of the monies. See N.J.S.A. 2C:64-3(a). The complaint alleged that the monies, along with eighty-five glassine envelopes of suspected heroin and other drug paraphernalia, were seized on January 22, 2009, during the execution of a search warrant by the Elizabeth Police Department. The complaint demanded a jury trial. Attached to the complaint was a lab report and supporting documentation demonstrating the substance seized was heroin.

Baker filed an answer pro se. He alleged that the State actually seized " approximately $2,800," which was money " he receive[d] from side work with his friend[s]," and he further denied that drugs were ever sold from his house or car, the [436 N.J.Super. 501] locations for which the search warrant had been issued. Baker attached two documents that allegedly supported his claim to the monies. A trial was scheduled for June 8, but the State sought and was granted a stay of the proceedings pending resolution of the criminal charges. See N.J.S.A. 2C:64-3(f).

Baker was subsequently indicted and charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree possession heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. A jury found Baker guilty of all charges, and on January 6, 2012, the judge sentenced him to a five-year term of incarceration with a thirty-month parole disqualifier.

The record does not disclose if the stay of trial was ever vacated. Nevertheless, on April 18, 2012, Baker filed a pro se motion seeking the return of the monies; he requested oral argument. The certification supporting the motion essentially reasserted the claims in the answer Baker originally filed in 2009.

The State opposed the motion, relying upon N.J.S.A. 2C:64-3(j).[1] The prosecutor asserted that the monies were " on [Baker's] person [when] he was arrested and charged with the crimes for which he has been duly found guilty, monies which were found in close proximity to significant quantities of heroin." The assistant prosecutor also stated:

[T]he State respectfully . . . asserts . . . that it has no burden to proceed with at this time. The State is entitled to a rebuttable presumption that . . . [the] monies are tainted by criminal activity. It is up to . . . Baker to come forward and affirmatively prove that such funds are legitimate. His alleged bank statements only show random deposits of cash from no verifiable legitimate source of funds and/or employment for the year 2009.

[436 N.J.Super. 502] The clerk of the court mailed notices to both parties on May 2, 2012, informing them that the hearing on Baker's motion was scheduled for May 16, 2012. The notice to Baker was sent to " N-S-P P.O. BOX 2300, NEWARK, NJ 07114," the address Baker used when he filed his motion. On May 7, the prosecutor wrote to the assistant civil division manager, advising of defendant's incarceration. He asked " whether you will still proceed or adjourn the matter upon . . . Baker's release from prison." The record does not reveal whether the court responded.

On the same day, the notice to Baker was returned to the court with the markings,

Page 263

" RETURN TO SENDER[; ] INSUFFICIENT ADDRESS[; ] UNABLE TO FORWARD." There is no indication in the record that the court ...

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