STATE OF NEW JERSEY v. ONE 2001 MERCEDES BENZ CL 500, VIN NO. WDBPJ75JX1-A009787

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1229-05T51229-05T5

A-1230-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ONE 2 001 MERCEDES BENZ CL 500,

VIN NO. WDBPJ75JX1-A009787,

Defendant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ONE 2 001 MERCEDES BENZ CL 500,

VIN NO. WDBPJ75J31-A008822

Defendant.

 

Submitted May 23, 2006 - Decided August 15, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-2343-04 and L-2256-04.

Lord & Whalen and Richard W. Berg, attorneys for appellant in Docket Nos. A-1229-05T5 and A-1230-05T5 (Robin Kay Lord and Mr. Berg, of counsel and on the brief in both appeals).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent in Docket Nos. A-1229-05T5 and A-1230-05T5 (Sean D. McMurtry, Mercer County Assistant Prosecutor, of counsel and on the brief in both appeals).

PER CURIAM

We consolidate these two appeals for the purpose of addressing them in this single opinion. In each appeal, one or more individuals attempted to challenge the sufficiency of a vehicle forfeiture complaint by filing a motion in lieu of an answer. In each, the Law Division judge concluded that in the absence of filing a verified answer that affirmatively asserted an interest in the subject vehicle, these individuals could not be heard. We reverse and remand.

We first summarize the facts as set forth in the record relating to the criminal investigation that led to the seizure of each of the vehicles. The following facts relate to the issues on appeal in A-1229-05T5 (the "Ford appeal"). According to the forfeiture complaint, on or about June 15, 2004, Sergeant Richard Frascella of the Mercer County Prosecutor's Office met with a confidential informant and received information that Tracy Mason was delivering large quantities of cocaine to drug dealers in Trenton. The informant also told Frascella that Mason had been arrested while driving a black Mercedes Benz, which the informant said had been purchased with the proceeds of Mason's illegal drug activity. Frascella learned that when Mason had been stopped, driving a 2 001 Mercedes Benz CL 500 with license plate RDJ15Y, he did not have a valid driver's license, there was an outstanding warrant for his arrest, he had $3,100 in his wallet, and he had marijuana on his person.

Frascella also learned that the vehicle with that license plate was a Mercedes Benz CL 500, VIN No. WDBPJ75JX1-A009787, that was owned by Martin Ford. He discovered that Ford bought the car on May 10, 2004 for $60,000 and $3,600 in sales tax. However, income tax records showed Ford had limited earnings, as did Mason. Ford had a prior conviction for possession of cocaine in 1992 and Mason had a conditional discharge in March 2004 for failure to make a lawful disposition of a controlled dangerous substance. Ford told Frascella that he had not paid for the car and that it was only registered in his name because Mason did not have a valid driver's license. Frascella met with the car salesman who told him that in March 2004, Mason offered $60,000 for the car and paid for it with seven cash payments. He also told Frascella that Ford and Mason had contacted him, and had asked him to lie to the authorities about the purchase and to take the title back so that it would appear that Ford had only made partial payment for the car.

On September 15, 2004, the Mercer County Prosecutor's Office filed a forfeiture complaint, which set forth all of the foregoing factual assertions. At or about the same time, the Prosecutor's Office issued a summons directed to Martin Ford and Tracy Mason and served the summons and complaint on them. On September 30, 2004, the appellants filed a motion to dismiss the complaint in lieu of answer.

The following facts relate to the issues in A-1230-05T5 (the "Williams complaint"). According to the forfeiture complaint, in February 2004 Sergeant Richard Frascella received information from a confidential informant that two brothers, Bobby and Brandyn Williams, were distributing large quantities of cocaine in Trenton and that Brandyn Williams had recently purchased a Mercedes Benz. In May 2004, another confidential informant told Frascella that the Williams brothers were selling a large amount of cocaine in Trenton. The second informant told Frascella that Brandyn Williams drove a 2 001 Mercedes Benz CL 500, license plate number SF740Y, that had been purchased with the proceeds from the cocaine sales. Frascella contacted the Division of Motor Vehicles and learned that Belinda Gates, also known as Belinda Williams, was the registered owner of a vehicle with that license plate. The car was a 2 001 Mercedes Benz CL 500, VIN No. WDBPJ75J31-A008822, which had been purchased from D.R.Z. Motors, Inc. of Bridgeton, N.J. on January 29, 2004 for $65,190. The car salesman told Frascella that the transaction was completed after three meetings, during which he received a series of checks, one for $25,000, one for $15,000, and two totaling $20,000. The salesman reported that Gates signed the bill of sale, but that he gave Brandyn Williams the title to the car.

The Williams complaint also asserted that neither Gates nor Brandyn Williams had reported income in any significant amounts. Finally, the complaint set forth Brandyn Williams's criminal history, identifying convictions in 2003 for unlawful possession of a handgun and in 2004 for possession of a controlled dangerous substance with the intent to distribute.

On June 4, 2004, detectives from the Mercer County Prosecutor's Office seized the Williams vehicle pursuant to a court order. In September 2004, the Mercer County Prosecutor's Office served Belinda Gates and Brandyn Williams with a summons and complaint that contained the foregoing factual assertions and that sought forfeiture of the Mercedes Benz. On October 21, 2004, appellants' attorney filed a motion to dismiss in lieu of an answer.

In each of the forfeiture actions, appellants filed a motion challenging the sufficiency of the complaint in lieu of an answer. In the motion directed to the Ford complaint, the claimants challenged the sufficiency of the forfeiture complaint on a variety of statutory and constitutional grounds. First, they argued that there was insufficient information in the complaint to support the theory of "derivative contraband" asserted as the basis for forfeiture. See N.J.S.A. 2C:64-1a. Second, they asserted that the complaint failed to supply evidence of an indictable crime or a direct, "proximate and substantial" causal relationship between such a crime and the property. See State v. Seven Thousand Dollars, 136 N.J. 223, 235 (1994). Third, they contended that the allegations did not meet the statutory test for a money laundering offense, which was asserted as the basis for the forfeiture. See N.J.S.A. 2C:21-25. Fourth, they argued that the State had impermissibly relied on speculation as to the source of the funds used to buy the car. Fifth, they argued that the complaint was insufficient because it was not supported by a verification based on personal knowledge. See N.J.S.A. 2C:64-3b. Finally, they asserted that requiring claimants to file an answer and preventing them from utilizing the motion in lieu of answer to test the sufficiency of the complaint would violate their constitutional rights as protected by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as their parallel rights under the New Jersey State Constitution, see N.J. Const. art. I, 1, 7, and the common law. See State v. Reed, 133 N.J. 237, 250-51 (1993).

The essence of the arguments raised in the Williams motion was that the complaint was legally insufficient in three respects. First, relying on N.J.R.E. 101(a)(2), they argued that the complaint failed as a matter of law because it relied on inadmissible allegations made by unidentified informants. Second, relying on our definition of the meaning of "unlawful activity" in the forfeiture statute, see State v. One 1994 Ford Thunderbird, 349 N.J. Super. 352, 370 (App. Div. 2002), they argued that the complaint was insufficient because it failed to identify an indictable crime. Third, citing Seven Thousand Dollars, supra, 136 N.J. at 238, they argued that the complaint was insufficient because it failed to demonstrate that there was a "direct causal connection" between the alleged crime and the seized vehicle, relying instead on speculation about the source of the funds used by Gates and Williams based on their limited reported income.

The two motions were assigned to the same Law Division judge. He declined to entertain any of the substantive arguments. Rather, he concluded that the forfeiture statute, which provides that a claimant "shall file and serve his claim in the form of an answer . . . [which] shall be verified . . ." and which "shall" set forth the nature of the claimant's interest in the vehicle, see N.J.S.A. 2C:64-3d, precluded resort to a motion in lieu of answer otherwise permitted in the rules. See R. 4:6-2. In reaching his conclusion, he pointed out that, unlike other complaints, as to which a particular defendant is so identified in the initiating pleading, the forfeiture complaint is an in rem proceeding. Allowing individuals who have not first affirmatively asserted, in a verified answer, the nature and extent of their interest in the res, he reasoned, would open the door so as to permit complete strangers, with no legitimate interest in the property, to make claims by way of motion practice.

Our analysis of the statute and the record on appeal compels us to reverse and remand. First, although the forfeiture statute refers to a requirement that a claimant file a verified answer setting forth that individual's interest in the res which is the subject of the complaint, nothing in that language presumes to preclude use of a motion in lieu of an answer to test the sufficiency of the allegations of the complaint in the first instance. In reaching this conclusion, we note, but decline to reach, the assertion made by appellants that the Legislature lacks the power, under our Constitution, see N.J. Const. art. VI, 2, 3, to preclude resort to the ordinary rules of court. See State v. Leonardis, 73 N.J. 360, 368 (1977); Winberry v. Salisbury, 5 N.J. 240, 245, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Rather, we interpret the forfeiture statute to require that in order to assert a claim to the res, one must do so in a verified answer. That statutory requirement, however, does not relieve the State from its obligation to file a complaint that sets forth the factual basis for the cause of action so as to state a claim on which relief may be granted. Nor does it preclude a putative claimant from electing to test the legal sufficiency of that complaint by a motion prior to "fil[ing] a claim" by way of verified answer.

Second, we do not share the motion judge's concern that "any stranger" may file a motion seeking to dismiss a forfeiture complaint. Nor, for that matter, would we permit such a result. Rather, we note that each of the appellants was specifically identified by the State, both in the body of each complaint and through the issuance of summonses served on each appellant along with the forfeiture complaint, as an individual who the State believed had an interest in the vehicle which was the subject of the forfeiture proceeding. Limiting permission to attack the sufficiency of the forfeiture complaint by way of motion in lieu of answer to individuals who are identified on the summons or in the body of the complaint, we think, will avoid the possibility, however remote, that "any stranger" might seek to challenge a forfeiture complaint.

Having concluded that the appellants, each of whom was identified in the relevant summons and in the body of the complaint as having an interest in the vehicle that was the subject of each of the two forfeiture complaints, were permitted to file and be heard on a motion to dismiss the complaint in lieu of an answer, we reverse and remand for further proceedings. In light of our conclusion, we do not consider whether any of the substantive arguments raised in those motions has any merit.

Reversed and remanded.

 

The specific information about their reported income that is set forth in the complaint is not relevant to the issues on appeal.

The specific information about their reported income that is set forth in the complaint is not relevant to the issues on appeal.

In light of our disposition of these appeals, we need not set forth the entire procedural history of these complaints as it is not relevant to the issues before us at this time.

(continued)

(continued)

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A-1229-05T5

August 15, 2006