September 9, 2019
certification to the Superior Court, Appellate Division,
whose opinion is reported at 454 N.J.Super. 445 (App. Div.
B. Lasota, Assistant Deputy Public Defender, argued the cause
for appellant/cross-respondent (Joseph E. Krakora, Public
Defender, attorney; Laura B. Lasota, of counsel and on the
Stephanie Davis Elson, Assistant Prosecutor, argued the cause
for respondent/cross-appellant (Esther Suarez, Hudson County
Prosecutor, attorney; Kerry J. Salkin and Nicole D. DePalma,
Assistant Prosecutors, on the briefs).
Alexander Shalom argued the cause for amicus curiae American
Civil Liberties Union of New Jersey (American Civil Liberties
Union of New Jersey Foundation, attorneys; Alexander Shalom,
Liza Weisberg, and Jeanne LoCicero, on the brief).
Valeria Dominguez, Deputy Attorney General, argued the cause
for amicus curiae Attorney General of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Valeria Dominguez, of
counsel and on the brief).
RABNER, C.J., writing for the Court.
appeal, the Court considers whether a defendant's answer
to a civil forfeiture complaint can be introduced against him
in a related criminal trial.
course of an investigation into drug sales by defendant Luis
Melendez, police executed a search warrant in November 2010
at an apartment where an informant had purchased drugs from
defendant. The search focused on a bedroom where drugs,
weapons, and items bearing defendant's name were found,
along with $2900 in cash. An officer arrested defendant and
seized $28 in his possession. Defendant was charged with
various narcotics and weapons offenses, and a public defender
represented him at a bail hearing.
later, the same office prosecuting the criminal case against
defendant filed a civil forfeiture complaint. The complaint
named defendant and sought to forfeit the $2928 in cash; it
alleged the funds were proceeds of illegal activities for
which defendant had been charged criminally. Defendant was
served with a copy of the complaint; the State did not serve
a copy on the attorney who represented defendant in the
parallel criminal proceeding. A summons attached to the
complaint notified defendant that the State "has filed a
lawsuit against you," and that "[i]f you dispute
this complaint, you or your attorney must file a written
answer or motion and proof of service . . . in the county
listed above within thirty-five (35) days
from the date you received this summons."
days after defendant received the civil forfeiture complaint,
a grand jury returned an indictment that charged him with
thirteen drug and weapons offenses.
April 2011, defendant represented himself and filed an answer
to the forfeiture complaint. He objected to the forfeiture of
the $2928 and asserted that he had proof that the "funds
were not part of or derived from any criminal activity,"
but rather "were the balance of [defendant's] inmate
account while serving federal incarceration time. Therefore,
they are not subject to forfeiture." Defendant attached
a copy of a U.S. Treasury check to the answer. Ultimately,
the court dismissed the civil forfeiture case for lack of
State moved to admit defendant's answer to the forfeiture
complaint at his criminal trial to "show a nexus
between" defendant and the contraband found in the
apartment. Over defendant's objection, the trial court
granted the motion.
trial, the court took judicial notice of the civil forfeiture
action against defendant and the $2928 seized, and of
defendant's answer. The prosecutor read aloud to the jury
defendant's answer to the civil forfeiture complaint.
Defendant was convicted of the ten counts submitted to the
jury; three counts had been dismissed.
Appellate Division affirmed defendant's convictions on
all counts except one charge that has since been dismissed.
454 N.J.Super. 445, 454, 459 (App. Div. 2018). The court
found no Fifth or Sixth Amendment violation but
"conclude[d] that the entire chain of events in
connection with the forfeiture case violated principles of
fundamental fairness." Id. at 471. As a result,
the court found that defendant's answer in the forfeiture
case should not have been introduced in his criminal trial.
Ibid. Because of other evidence, the court
nevertheless concluded the error was harmless. Id.
Court granted defendant's petition for certification
limited to whether it was error to admit defendant's
answer from the civil forfeiture action. ____ N.J. ____
(2018). The Court also granted the State's
cross-petition, which raised related questions. 236 N.J. 48
Under the reasoning of Garrity v. New Jersey, 385
U.S. 493 (1967), a defendant's statements in an answer to
a civil forfeiture action cannot be introduced in a parallel
criminal proceeding in the State's case in chief. Like
the Appellate Division, the Court finds the error was
harmless in light of other strong evidence connecting
defendant to the apartment. The Court also agrees that
criminal defendants who have been served with civil
forfeiture complaints are entitled to enhanced notice of
certain issues. The Court outlines several points about
notice and refers the matter to the Civil and Criminal
Practice Committees for further review.
Civil forfeiture proceedings implicate a person's due
process rights and invoke certain protections that apply to
criminal matters. The Court reviews the language and
structure of the civil forfeiture statute and finds that they
convey a straightforward meaning: anyone who seeks to claim
property that is subject to forfeiture must file and serve a
claim to the property "in the form of an answer,"
and the answer must state the claimant's "interest
in the property." N.J.S.A. 2C:64-3(d). If an answer is
not timely filed, the property is forfeited. Id. at
-3(e). If an answer is filed, the case proceeds in court.
Id. at -3(f). In short, the statute requires a
claimant to file an answer to defend against a forfeiture
action. The last sentence in subsection (f) allows claimants
to apply for a stay but does not provide for the filing of a
stay motion alone; an answer must be filed first to assert a
claim. (pp. 12-15)
framework of the civil forfeiture statute raises concerns
under the United States Supreme Court's ruling in
Garrity, which reversed the convictions of officers
who were given a choice "either to forfeit their jobs or
to incriminate themselves" in the course of an
investigation into their alleged misconduct. 385 U.S. at 497.
The Court likened the practice to the interrogations it
reviewed in Miranda and found the officers'
statements "were infected by . . . coercion."
Ibid. As a result, the Court held the statements
were not voluntary and could not be admitted at a later
criminal proceeding. Id. at 498, 500. (pp. 15-16)
the defendants in Garrity, claimants in a civil
forfeiture action who are defendants in a parallel criminal
case also face an untenable choice: to forfeit their property
or incriminate themselves. To defend against a forfeiture
complaint, claimants who are also criminal defendants
must file an answer that states their interest in
the property. In other words, to assert their constitutional
right not to be deprived of property without due process,
they have to link themselves to alleged contraband and give
up their constitutional right against self-incrimination. Or
they can refuse to answer and lose their property. Under the
reasoning in Garrity, a defendant's choice to
file an answer under those circumstances is not freely made.
It is fraught with coercion. A criminal defendant's
statements in an answer to a civil forfeiture complaint thus
cannot be considered voluntary. As a result, they cannot be
introduced in the State's direct case in a later criminal
proceeding. (pp. 17-18)
Court does not decide in this appeal whether a defendant can
be impeached if he testifies at a later criminal trial and
contradicts statements he made in a forfeiture action, and it
does not consider whether Simmons v. United States,
390 U.S. 377 (1968), would apply to the circumstances
presented here. Nor does the Court reach defendant's
other arguments under the Fifth or Sixth Amendments or the
doctrine of fundamental fairness. Defendant's civil
forfeiture answer was obtained in violation of a
constitutional right and could therefore not be admitted
under N.J.R.E. 803(b)(1) as a statement by a party-opponent.
Court agrees with the Appellate Division that criminal
defendants served with a civil forfeiture complaint should
receive enhanced notice about certain issues. Defendants
should be advised of the following: (1) they may wish to
consult with a lawyer about how best to proceed; (2) the
State may not use any statements made in an answer to a
forfeiture complaint in its case in chief in a related
criminal case; and (3) defendants may file a motion to stay
the civil forfeiture action under N.J.S.A. 2C:64-3(f).
Whenever practicable, the State should also serve a courtesy
copy of the forfeiture complaint on defense counsel when a
companion criminal case is pending, so that counsel can offer
basic legal advice or make a referral. To comply with the
Appellate Division's ruling, the State began providing
other defendants in civil forfeiture actions with enhanced
written notice. The notice tracks the Appellate
Division's guidance and reasoning, but the Court has now
modified that reasoning and reaches its conclusion based on
Garrity rather than fundamental fairness. The Court
refers the matter to the Clerk of the Superior Court to
consider any changes to the standard form summons now in use.
The Court also refers these issues to the Civil and Criminal
Practice Committees for their consideration. (pp. 20-21)
the reasons stated above, it was error for the State to
introduce defendant's answer to the forfeiture complaint
at his criminal trial. In light of other evidence that
connected defendant to the back bedroom of the apartment,
where the evidence was seized, that error was harmless. (pp.
judgment of the Appellate Division is AFFIRMED and
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON
and TIMPONE join in CHIEF JUSTICE RABNER's opinion.
appeal, we consider whether a defendant's answer to a
civil forfeiture complaint can be introduced against him in a
related criminal trial.
defendant's arrest on drug and weapons charges, the State
filed a civil forfeiture action against $2928 in cash. The
police found most of the money during a search of an
apartment. In the criminal case, the State alleged that the
cash -- as well as drugs, drug paraphernalia, and a handgun
also found in the apartment -- belonged to defendant.
faced a dilemma about whether to answer the civil complaint.
Under the forfeiture statute, a claimant must file an answer
and assert an "interest in the property." N.J.S.A.
2C:64-3(d). That step, however, can incriminate a defendant
in a related criminal case. On the other hand, if a defendant
fails to respond to a forfeiture complaint, he risks losing
without the benefit of an attorney, defendant filed an
answer. He asserted that the cash belonged to him and came
from a lawful source. The State, in turn, introduced that
answer in defendant's criminal trial to try to link him
to the incriminating items found in the apartment.
Appellate Division concluded the answer should not have been
admitted under the doctrine of fundamental fairness.
State v. Melendez, 454 N.J.Super. 445, 475 (App.
Div. 2018). We agree with that outcome for different reasons.
faced an untenable situation -- forced to choose between his
Fifth Amendment right against self-incrimination and his
right not to be deprived of property in the forfeiture matter
without due process. Under the reasoning of Garrity v.
New Jersey, 385 U.S. 493 (1967), defendants cannot be
compelled to give up their Fifth Amendment protections in
that way. We therefore hold that a defendant's statements
in an answer to a civil forfeiture action cannot be
introduced in a parallel criminal proceeding in the
State's case in chief.
the Appellate Division, we find the error was harmless in
light of other strong evidence connecting defendant to the
apartment. Accordingly, we affirm and modify the judgment of
the Appellate Division.
agree with the Appellate Division that criminal defendants
who have been served with civil forfeiture complaints are
entitled to enhanced notice of certain issues. We outline
several points about notice and refer the ...