New Jersey Section 2C:64-3 – Forfeiture procedures

New Jersey’s Asset Forfeiture Laws: An Overview for Legal Professionals

What is Asset Forfeiture?

Asset forfeiture refers to the government’s ability to seize property associated with criminal conduct. This includes the proceeds of crime as well as tools or facilities used to commit crimes. The purpose is to disrupt criminal enterprises by removing their resources and economic incentives.

New Jersey’s forfeiture laws are outlined in Title 2C, Chapter 64 of state statutes. This covers both criminal and civil forfeiture processes. Criminal forfeiture occurs following a criminal conviction, while civil forfeiture happens through a separate civil action against the property itself.

Key Forfeiture Statutes

The main New Jersey statutes governing asset forfeiture are:

• 2C:64-1 – Defines property subject to forfeiture, including proceeds traceable to criminal offenses, tools used in crimes, firearms, and more. Lists exceptions as well.
• 2C:64-2 – Establishes burdens of proof for forfeiture and allows seized property to be retained pending the forfeiture action.
• 2C:64-3 – Outlines procedural requirements for civil forfeiture actions brought by the state. Details notice requirements, verifications, time limits, etc.
• 2C:64-4 – Covers seizure of property for evidence pending a criminal prosecution. Allows pre-conviction forfeiture when prosecutors establish probable cause.
• 2C:64-5 – Describes how forfeited property can be retained for official use or disposed/sold after forfeiture. Sets rules for distribution of forfeiture proceeds.
• 2C:64-6 – Provides an “innocent owner” defense for civil forfeiture when owners establish they did not consent to or have knowledge of the criminal use of their property.
• 2C:64-7 – Prevents forfeiture of property transferred to a bona fide purchaser who did not know of any act or omission subjecting the property to forfeiture.

Key Procedural Requirements

Civil Forfeiture Process

For civil forfeiture under 2C:64-3, the state must:

• File a verified complaint within 90 days describing the seized property and reasons it is subject to forfeiture.
• Give notice to all persons with a known interest in the property.
• Follow notice procedures for in rem civil actions under court rules.
• Allow interested parties to file claims contesting the forfeiture.

Courts will then determine if the seizure violated due process or if the state met its burden to establish the property’s forfeitability.

Criminal Forfeiture Process

Section 2C:64-4 allows pre-conviction seizure of property for evidence in criminal cases. Following a conviction, the state can then seek criminal forfeiture of assets linked to the crime. This requires prosecutors to establish beyond a reasonable doubt that the property was subject to forfeiture under 2C:64-1.

Burdens of Proof

For civil forfeiture, the state has the initial burden to establish probable cause for seizure. Claimants can then defeat forfeiture by showing by a preponderance of evidence that the property is not subject to forfeiture. For criminal forfeiture, the state must prove forfeitability beyond a reasonable doubt.

Property Subject to Forfeiture

Under 2C:64-1, the following may be subject to forfeiture:

• Proceeds traceable to criminal activity, including money, securities, negotiable instruments and more.
• Tools or facilities used or intended to be used in furtherance of an unlawful activity, including equipment, computers, software, conveyances, etc.
• Firearms unlawfully possessed, used for an unlawful purpose, or used in violation of certain restraining orders.
• Contraband per se, such as illegal drugs, child pornography, untaxed cigarettes, etc.
• Burglar’s tools possessed with intent to use in an unlawful manner.

There are exceptions where forfeiture is limited or not allowed, such as for common carriers or stolen property returned to innocent owners.

Implications for Legal Professionals

Asset forfeiture can have major implications for those facing criminal charges or regulatory enforcement actions. Key issues legal professionals should understand include:

• Pre-Trial Asset Restraints – Prosecutors may seek pretrial asset restraints or protective orders to preserve property subject to forfeiture. This can impact defendants’ access to needed resources.
• Plea Bargaining – Forfeiture may enter into plea negotiations, with defendants potentially agreeing to forfeit assets in exchange for reduced charges or penalties.
• Sentencing Factors – Judges may consider forfeiture during sentencing, viewing it as an additional consequence along with fines, fees and incarceration.
• Innocent Owners – Uninvolved property owners may have valid “innocent owner” defenses. Legal assistance can be key to recovering their assets.
• Tax Implications – Forfeited assets and discharge of indebtedness from forfeited property may trigger tax liabilities if not handled properly.

With the right legal strategy, some outcomes may be negotiable. But asset forfeiture can be complex, making experienced legal advice essential.

Conclusion

Asset forfeiture gives law enforcement powerful tools to disrupt criminal enterprises. But New Jersey’s forfeiture laws also impacts property rights and due process. For legal professionals, understanding key statutes, burdens of proof, procedural rules and defense strategies is crucial in protecting client interests. Careful navigation of forfeiture processes can help mitigate consequences and recover assets where appropriate.