cdTOCtest

N.J. Super. 209 (App. Div. 1983). Similarly, unsworn
statements of persons allegedly involved in the illegal
activity are insufficient to establish that the property is
forfeitable. State v. One 1979 Pontiac Sunbird, 191 N.J.
Super. 578, 581-582 (App. Div. 1983).

c. Notice

Notice of the action must be given to any person
known to have a property interest. N.J.S.A. 2C:64-3c.
Traditional notice requirements for in rem actions must
be met. To take advantage of provisions applicable to
service upon absent potential claimants in in rem actions,
see R. 4:4-5, the State must conduct a “diligent inquiry”
to confirm that a claimant can not be served in New
Jersey. Id. Further, to take advantage of provisions for
service by publication alone, the State must confirm by
“diligent inquiry” that the place where a claimant
ordinarily receives mail is unknown and unascertainable.
R.. 4:4-5(c).

d. Answer

Once served with a copy of the complaint, a notice,
and a summons, a claimant must respond with a verified
answer stating his or her interest in the property, and if
the answer is made by an agent, establish that the agent
is authorized to make the claim. N.J.S.A. 2C:64-3d; R.
4:5-3. Technically, if no answer contesting the
complaint is timely filed, the property is forfeited.
N.J.S.A. 2C:64-3e. A final judgment by default,
however, confirming that the property has been forfeited
should be sought pursuant to R. 4:43. If judgment is
sought by motion, see R. 4:43-2(b), the court in its
discretion may conduct an evidentiary hearing to test the
State’s allegations.

e. Use Orders

Any person with a property interest in the seized
property, other than a defendant who is being prosecuted
in connection with the seized property, may secure its
release while the forfeiture action is pending unless the
article is dangerous or unless the State can demonstrate
that the property will be lost, destroyed or employed in
subsequent criminal activity. N.J.S.A. 2C:64-3g. In
addition, the State can decline to release evidence
pending criminal prosecution. N.J.S.A. 2C:64-4. A
person seeking such release of property pending forfeiture
proceedings must post a bond with the court equal to the
market value of the property. N.J.S.A. 2C:64-3g.

If the property is not released to a claimant pending

disposition of the forfeiture action the prosecuting

agency, with the approval of the entity funding it, may

apply to the Superior Court for an order permitting use

of the property. N.J.S.A. 2C:64-3h. The prosecuting

agency must file a bond equal to the market value of the

seized property or a written guarantee of payment in the

event forfeiture is ultimately denied. N.J.S.A. 2C:64-3h.

f. Trustee

If the seized property is difficult to maintain or

preserve pending forfeiture, the court may appoint a

trustee. N.J.S.A. 2C:64-3i. Questions arise about the

extent of control to be given to the fiduciary and about the

cost. Control may progress from mere oversight to full

receivership, and cost may be borne initially by the

government to be recouped if and when final judgment

is obtained. See, e.g., United States v. Ianniello, 824 F.2d

203 (2d Cir. 1987) (federal RICO fiduciary).

g. Trial

The forfeiture statute always has specified that if an

answer were timely filed, the Superior Court would

schedule a summary hearing as soon as practicable.

N.J.S.A. 2C:64-3f. That is to say, the statute did not

require a jury trial in civil in rem forfeiture cases involving

derivative contraband. In State v. One 1990 Honda

Accord, 154 N.J. 373 (1998), the Supreme Court held

that jury trials were provided in forfeiture cases when the

constitution of 1776 was adopted and that jury trials

therefore were required now.

2. Guilty Pleas and Parallel Proceedings

Forfeiture may be incorporated into a plea agreement

as part of the plea or as a separate consent order. A plea

agreement may, of course, include the sentence that will

be imposed. R. 3:9-3(a). In addition, N.J.S.A. 2C:43-

2d specifically provides that an order confirming

forfeiture may be made part of a criminal sentence. As

with any right subject to waiver by reason of guilty plea,

the defendant should be questioned by the trial court to

ascertain that he is voluntarily and intelligently waiving

his right to contest a civil forfeiture action brought by the

State.

In Libretti v. U.S., 516 U.S. 29, 116 S.Ct. 356, 133

L.Ed.2d 271 (1995), however, the Court held that rule

requiring inquiry into whether there is a factual basis for

guilty plea does not require such inquiry into a plea