NJ When Do Assets Need To Be Forfeited In A Criminal Case?

NJ Criminal Asset Forfeiture

In New Jersey criminal cases, prosecutors can seek forfeiture of assets connected to illegal activity through criminal or civil proceedings. Criminal forfeiture allows confiscating property after convicting the owner of a crime. Civil forfeiture is controversial for allowing asset seizure without convictions. Understanding when and how forfeiture applies in NJ criminal matters is important for defendants and property owners.

Criminal vs. Civil Forfeiture

There are two main types of asset forfeiture law enforcement can pursue[1]:

• Criminal forfeiture – Happens through criminal prosecution of the asset owner. Requires conviction on related charges, then assets are forfeited as part of sentencing.
• Civil forfeiture – Happens through a civil lawsuit directly against the property itself, not the owner. Doesn’t require criminal conviction and has looser standards.

Criminal forfeiture relies on convictions to trigger asset seizure. Civil forfeiture is controversial for allowing forfeiture despite dropped charges or acquittal of the owner[2].

NJ Criminal Forfeiture Laws

In New Jersey, criminal forfeiture is authorized by statute 2C:64-1a. Key provisions include:

• Applies after owner is convicted of certain offenses like drug crimes, corruption, gang activity.
• Prosecutor must give notice they are seeking forfeiture as part of sentencing.
• Court holds a hearing to determine what assets should be forfeited.
• Standard of proof is beyond a reasonable doubt.
• Forfeited assets go to the state, not law enforcement.

Criminal forfeiture requires the higher standard of proof of beyond reasonable doubt, since it follows a criminal conviction[3].

When Criminal Forfeiture Applies

Prosecutors typically seek criminal forfeiture when[1]:

• The asset owner is convicted of crimes authorizing forfeiture.
• There is proof linking assets to criminal activity.
• Forfeiture is authorized under the statute of conviction.
• Seeking maximum penalties against convicted criminals.

It provides an additional punishment and way to disgorge illicit profits after securing a conviction.

Criminal vs. Civil Forfeiture Differences

Criminal and civil forfeiture differ significantly[2]:

• Criminal – Follows a conviction; beyond reasonable doubt standard; assets go to the state.
• Civil – No conviction required; preponderance standard; assets often go to law enforcement.

Some argue civil forfeiture undermines due process and should require convictions like criminal forfeiture[4].

Challenging Criminal Forfeiture

Ways defendants can challenge criminal forfeiture include[5]:

• Contesting the forfeiture at the sentencing hearing.
• Arguing the assets had a legitimate origin and use.
• Disputing the accuracy of prosecutors’ evidence.
• Filing an appeal of the forfeiture order.

But after a conviction, defeating forfeiture is an uphill battle. Avoiding forfeiture earlier in the case is often better.

Strategies Against Forfeiture

Key strategies in forfeiture cases include[1]:

• Seeking dismissal of charges triggering forfeiture.
• Challenging probable cause for seizures.
• Disputing prosecutorial evidence linking assets to crimes.
• Asserting legal exemptions like “innocent owner.”
• Filing mitigation arguments to limit forfeiture amounts.

This aims to prevent convictions and weaken the basis for forfeitures in the first place.

Using Assets for Legal Fees

New Jersey allows using seized assets to fund a criminal legal defense, with court approval[6]. But prosecutors often oppose this, leading to litigation over releasing funds.

Conclusion

Fighting criminal forfeiture can be an uphill battle once charges triggering forfeiture lead to conviction. But an experienced criminal defense lawyer can often negotiate to minimize or avoid forfeiture using a variety of legal strategies. Consulting qualified legal counsel early when charges are filed is key to protecting property from wrongful seizure.

Citations

[1] When Do Assets Need To Be Forfeited In A Criminal Case?

[2] Full Overview of Asset Forfeiture Cases in NJ

[3] Asset Forfeiture in New Jersey | What You Should Know

[4] New Jersey Is Now The 16th State To Require Convictions For Civil Forfeiture

[5] The Use of Civil Asset Forfeiture in New Jersey Is Broken

[6] Criminal Forfeiture and the Sixth Amendment Right to Counsel of Choice