Opinion
DOCKET NO. A-0242-14T4
03-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STUDIO 45 DISCOTHEQUE, INC. and EDUARDO GONZALEZ, Defendants-Appellants.
Tomas Espinosa, attorney for appellants. Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Andrea Hellinghausen, Assistant Prosecutor, on the brief). Sheffet & Dvorin, attorneys for respondent City of Union City, join in the brief of respondent State of New Jersey.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4600-10. Tomas Espinosa, attorney for appellants. Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Andrea Hellinghausen, Assistant Prosecutor, on the brief). Sheffet & Dvorin, attorneys for respondent City of Union City, join in the brief of respondent State of New Jersey. PER CURIAM
Appellants challenge the denial of their motion to compel the State of New Jersey to return bar equipment, and other items. The items were seized by police during their execution of a search warrant for the premises leased by appellant Studio 45 Discotheque Inc. ("Studio 45"), a business entity located on Bergenline Avenue in Union City. The Police obtained the warrant after they had responded to reports of a fight in front of the premises, an "after-hours dance club", and learned that alcohol was reportedly being sold there without a license.
Studio 45 operated under a "luncheonette license" at the time of the execution of the warrant; its retail liquor license had been revoked years earlier.
Appellant Eduardo Gonzalez ("Gonzalez"), the owner and operator of Studio 45, was subsequently indicted on various fourth-degree offenses for the distribution and sale of alcoholic beverages without a license, contrary to N.J.S.A. 33:1-50a-c. He was found guilty on all charges by a jury. We affirmed his convictions on appeal. State v. Gonzalez, No. A-5981-11 (App. Div. October 25, 2013).
N.J.S.A. 33:1-50 describes the offenses listed in the indictment as "misdemeanors." By adopting the Code of Criminal Justice codified in Title 2C, New Jersey formally abolished all common law crimes. N.J.S.A. 2C:1-5. Thus, a reference to "misdemeanor" in any other statute is construed to refer to a fourth-degree offense. See N.J.S.A. 2C:1-4(d). --------
While the criminal action was pending, the State filed a complaint against Gonzalez and Studio 45 seeking forfeiture of the items seized pursuant to the warrant. The State did not prosecute that action, causing it to be dismissed on June 26, 2012. Prior to our ruling on his appeal, Gonzalez petitioned the Law Division for an order releasing the seized property. On January 11, 2013, the Law Division denied the motion, and explained that because the "criminal matter is presently on appeal, all evidence shall continue in possession of [the] State[.]"
The State subsequently moved to reinstate its forfeiture action, but that motion was denied on December 7, 2012. Approximately seventeen months after the denial of the State's motion to reinstate, appellants petitioned the Law Division once again for release of the seized property. This petition was opposed by both the State and Hudson County. The Law Division judge denied appellants' petition, and stated, in pertinent part:
The State candidly acknowledges that it filed a forfeiture action on August 23, 2010, I believe, that it was ultimately dismissed on June 26th [of] 2012. The State notes that it is not retaining the items in evidence as pursuant to a forfeiture action. [T]he State argues that the items in evidence are not sought to be seized as part of a conversion to [S]tate ownership of the evidence.
Rather the State has acted under the [Attorney General G]uidelines to retain the property for a period of five years from the date of the conviction to the expiration of the sentence, whichever is later, as is required by [Directive] 2011-1. . . .
Now in this case the defendant merely reargues the same points that were made and
that were rejected at oral argument on the original motion. The predicate of the defendant's argument as this is a forfeiture action. Now as noted by the State, it is not. It is, however, rather adherence to a guideline requiring the retention of evidence. . . .
The defendant cites no authority requiring the return of evidence within the guidelines period, other than a discussion as to the force and effect of a guideline. As the Court was guided in the prior decision with a clear mandate of the guidelines, and for the reasons and policy justifications that the Court recognizes as persuasive, but what the defendant has chosen to characterize in his papers as in his words . . . "lame," . . . "patently wrong reasoning," . . . and . . . "represented an irrational decision," . . . by the Court.
No further justification other than these general platitudes are submitted in order to seek the relief here. These are unpersuasive to the Court and without merit. And the record will speak for itself, and will, I believe, reflect the fact that the original decision was made supported by the clear mandate of the guidelines.
Appellants argue that the forfeiture statue, N.J.S.A. 2C:64-1 to -9, controls, and that the statute establishes two broad categories of property subject to forfeiture: (1) prima facie contraband and (2) other kinds of property, such as property utilized in furtherance of unlawful activity. They argue that because the seized property is not prima facie contraband, the State cannot retain possession without a court order. We disagree.
Although we are not confronted with a forfeiture issue on this appeal, we shall briefly address the statute in order to clarify the point for appellants. In general, "forfeiture refers to the divestiture without compensation of title to property used to further criminal activity." State v. 1979 Pontiac Trans Am, 98 N.J. 474, 479 (1985). "The theory of forfeiture is based on the misuse of the property rather than resulting from the commission of an offense by its owner or user." State v. Seven Thousand Dollars, 136 N.J. 223, 233 (1994) (citation omitted). These "proceedings are often viewed as the only adequate means to protect against a particular offense" and "as a means of encouraging owners to be more responsible in lending their personal property." 1979 Pontiac Trans Am, supra, 98 N.J. at 480-81.
The Code of Criminal Justice authorizes forfeiture proceedings pursuant to N.J.S.A. 2C:64-1 to -9. The statute creates two categories of property subject to forfeiture: (1) prima facie contraband and (2) derivative or non-prima facie contraband. Seven Thousand Dollars, supra, 136 N.J. at 233 (citing N.J.S.A. 2C:64-1). "Prima facie contraband is automatically forfeited once seized by the State;" but "to enforce forfeiture of derivative contraband[,] the State must bring a civil action within ninety days of the seizure against the property sought to be forfeited." Ibid. (citing N.J.S.A. 2C:64-3a).
In a civil forfeiture proceeding, the State must prove by a preponderance of the evidence a direct, causal connection between the seized property and the unlawful activity. Id. at 234-35. In other words, "[t]o be subject to forfeiture, the property must be used 'in furtherance of,' 'to facilitate the perpetration of,' or as 'an integral part of' the illegal act." Id. at 234 (quoting N.J.S.A. 2C:64-1). Finding a direct, causal connection is a fact-specific determination. Id. at 235. If the State carries its burden, it obtains title to the disputed property.
The problem for appellants is that this is not a forfeiture action. That action was dismissed on June 26, 2012. The State sought to reinstate the forfeiture action, but that application was denied on December 7, 2012. Therefore, the statute does not govern this proceeding as there is no forfeiture action.
Appellants nonetheless persist in the argument that the seized property is "derivative contraband" under the forfeiture statute, and that the property should be returned, as the forfeiture action has been dismissed. In making this argument, appellants keep pounding on the wrong door.
The State is not holding the seized property pursuant to the forfeiture statute; rather, the seized property is being held temporarily pursuant to Attorney General Guidelines (the "Guidelines") for the Retention of Evidence that have been in effect since 2011. The State does not seek to terminate appellants' rights in the property, but to retain the seized property for a limited period, pursuant to the Guidelines. Thus, the question is whether the Guidelines lawfully justify retention of the seized property.
The Guidelines were issued on January 6, 2011, by then-Attorney General Paula T. Dow as part of Directive 2011-1. Att'y Gen. Guidelines for the Retention of Evidence (Jan. 6, 2011). Its purpose is "to provide for the retention of evidence in criminal cases to protect public safety and the interests of crime victims and their families, and to afford to those who are serving a sentence for a crime the opportunity to challenge their convictions, in appropriate cases." Ibid. The Directive represents the combined policies of the Office of the Attorney General and the various offices of the County Prosecutors throughout the State and was adopted pursuant to the Criminal Justice Act, which provides for general supervision over the County Prosecutors by the Attorney General as the chief law enforcement officer of the State. Ibid. (citing N.J.S.A. 52:17B-98, -103).
In general, the "Guidelines apply to all indictable offenses handled in Superior Court." Ibid. There are specific timeframes for the retention of evidence, depending upon the type of crime involved. Ibid. In this case, the relevant provision, Section 5b, denominated "Other Evidence," provides as follows:
In cases where the defendants were convicted and no appeals or post-conviction relief motions are pending, after a period of 5 years from the date of conviction or upon the defendants' expiration of sentence, whichever comes later, a request for destruction authorization may be submitted. If there is a legal owner of said evidence who is not a defendant, no forfeiture proceedings are pending or have been concluded and there are no appeals of said forfeiture action pending and the ownership has not been granted to a law enforcement agency by court order, said property shall be returned to the legal owner of same, rather than being authorized for destruction.
[Ibid.]
Whether one views the Guidelines as merely a suggested best-practice or as a mandatory requirement - see O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 382-83 (App. Div. 2009) (holding that the Attorney General's "Use of Force Policy," which requires the completion and maintenance of Use of Force Reports by police departments, carries the force of law for police entities, based on the Attorney General's authority under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117 (the "Criminal Justice Act"), to adopt guidelines, directives, and polices that are binding on local police agencies.); but cf. State v. Henderson, 208 N.J. 208, 278 (2011) (holding that the Attorney General Guidelines "are a series of recommended best practices," but that "it remains the Court's obligation to guarantee that constitutional requirements are met, and to ensure the integrity of criminal trials.") - we see no reason on this record to challenge their application. Given that a defendant generally has five years after a conviction to file an application for post-conviction relief, R. 3:22-12, the Guidelines appear reasonably related to a legitimate State concern and thus represent a proper exercise of the executive function.
Finally, we briefly address the procedure employed by appellants to obtain relief. The civil action for forfeiture brought by the State had been dismissed at the time appellants moved under that docket number to obtain affirmative relief. We fail to understand the mechanism by which a party may move for affirmative relief in an action that has been dismissed. The proper procedure for the title-holder, presumably Studio 45, would have been to file a complaint seeking return of the seized property. See State v. Howery, 171 N.J. Super. 182, 184 (App. Div. 1979). This procedure also has the virtue of creating a proper record on which to adjudicate any dispute as to ownership and release of the property held by the State.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION