By: Robert (Bob) Bianchi, Esq.:
The New Jersey Forfeiture law allows for a person’s assets to be seized and forfeited by New Jersey Police and New Jersey Prosecutors.
Typically, when a person is arrested in New Jersey for a crime, any money, property, or other assets that are linked to that crime may be seized by NJ police and NJ Prosecutors. The prosecutor may file a complaint within 90 days of the seizure to permanently have those assets forfeited by the person they were taken from. There are instances when police and prosecutors may seize and move to forfeit property and/or money without an arrest or criminal charge.
The seizure and use of these funds by NJ prosecutors and NJ police agencies have come under significant scrutiny. Prosecutors and police are using this law more and more with greater frequency to seize cars, homes, furnishings, businesses, and other significant assets, some of which may not have been connected to any criminal activity.
For example, many times criminal activity by one person (in a house or car for instance) and where the owners had nothing to do with the crime, can be forfeited. Many have claimed that this practice is unfair and punishes innocent, non-offending people that had nothing to do with the crime. They also claim that police and prosecutors are now targeting people for low-level, minor offenses, but who have significant assets, simply to seize the assets so that they can later use those assets for their own agency’s use. They suggest as budgets are being cut and downsized prosecutors are turning to aggressive forfeiture practices to make up for the difference.
It must be understood that under NJ law, the forfeiture law is a civil case, and is a separate legal proceeding from the criminal case. The standard of proof needed by the prosecutor to prove the assets seized were connected to a crime so that they may be seized is by a “preponderance of the evidence,” not beyond a reasonable doubt which is the standard to find a person guilty of a criminal offense. “Preponderance of the evidence” means that it is “more likely than not” that the assets were part of a criminal enterprise.
Many times plea deals in NJ criminal cases require that some or all of the assets seized are agreed to be forfeited in order to benefit from a more favorable plea agreement. This practice has also come into question as often a criminal defendant is pressured to allow assets that may have had no connection to a crime to be surrendered in exchange for a “good deal.” And, it is said to disproportionately affect lower socio-economic defendants who do not have such assets, and therefore, cannot bargain assets away in exchange for better plea deals.
You can access how this all plays out in a good article by NJ.com where former NJ Prosecutor and now criminal defense attorney Robert (Bob) Bianchi, Esq., is extensively quoted: http://www.nj.com/politics/index.ssf/2015/11/nj_cops_seize_millions_a_year_re.html
Below is the verbatim NJ Forfeiture law.
© 2015 Robert (Bob) Bianchi, Esq.
New Jersey Law 2C:64-3: Forfeiture Law When Assets Are Seized by NJ Police and NJ Prosecutors
a. Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.
b. The complaint shall be verified by oath or affirmation. It shall describe with reasonable particularity the property that is the subject matter of the action and shall contain allegations setting forth the reason or reasons the article sought to be or which has been seized is contraband.
c. Notice of the action shall be given to any person known to have a property interest in the article. In addition, the notice requirements of the Rules of Court for an in rem action shall be followed.
d. The claimant of the property that is the subject of an action under this chapter shall file and serve his claim in the form of an answer in accordance with the Rules of Court. The answer shall be verified by oath or affirmation and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee or attorney, it shall state that he is duly authorized to make the claim.
e. If no answer is filed and served within the applicable time, the property seized shall be disposed of pursuant to N.J.S.2C:64-6.
f. If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable. Upon application of the State or claimant, if he be a defendant in a criminal proceeding arising out of the seizure, the Superior or county district court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by an entry of final judgment.
g. Any person with a property interest in the seized property, other than a defendant who is being prosecuted in connection with the seizure of property may secure its release pending the forfeiture action unless the article is dangerous to the public health, safety, and welfare or the State can demonstrate that the property will probably be lost or destroyed if released or employed in subsequent criminal activity. Any person with such a property interest other than a defendant who is being prosecuted, prior to the release of said property shall post a bond with the court in the amount of the market value of the seized item.
h. The prosecuting agency with approval of the entity funding such agency, or any other entity, with the approval of the prosecuting agency, where the other entity’s law enforcement agency participated in the surveillance, investigation or arrest which is the subject of the forfeiture action, may apply to the Superior Court for an order permitting use of seized property, pending the disposition of the forfeiture action provided, however, that such property shall be used solely for law enforcement purposes. Approval shall be liberally granted but shall be conditioned upon the filing of a bond in an amount equal to the market value of the item seized or a written guarantee of payment for property which may be subject to return, replacement or compensation as to reasonable value in the event that the forfeiture is refused or only partial extinguishment of property rights is ordered by the court.
i. If the property is of such nature that substantial difficulty may result in preserving its value during the pendency of the forfeiture action, the Superior or county district court may appoint a trustee to protect the interests of all parties involved in the action.
j. Evidence of a conviction of a criminal offense in which seized property was either used or provided an integral part of the States proofs in the prosecution shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property was utilized in furtherance of an unlawful activity.