V. FORFEITURE
The racketeering statute also provides for criminal
forfeiture penalties. N.J.S.A. 2C:41-3b. The forfeiture
provision is not restricted to the interest in an enterprise,
but may include profits and proceeds derived from
racketeering. United States v. Russello, 464 U.S. 16 (1983).
The State must prove that “but for” a defendant’s
racketeering, defendant would not have acquired the asset
or property the State seeks to forfeit; thus, a jury can
determine that only a portion of the defendant’s interest in
property resulted from illegal gain. State v. Sparano, 249
N.J. Super. 411, 426-27 (App. Div. 1991). There need not
be a “direct” connection between racketeering profits and
the acquired property sought to be forfeited, so long as the
State proves that the property was acquired by funds
equivalent to the fruits of the criminal activity. Id.
VI. INVESTIGATIVE INTERROGATORIES
N.J.S.A. 2C:41-5, which allows the Attorney General
to use investigative interrogatories under the racketeering
statute, is constitutional. Matter of Doe, 294 N.J. Super.
108 (Law Div. 1996), aff’d, 302 N.J. Super. 255 (App.
Div.), certif. denied, 151 N.J. 468 (1997), cert. denied, 523
U.S. 1096 (1998). The authority of the Attorney General
to investigate suspected criminal activity can only be
circumscribed by a court if specific demands infringe on
the legally protected rights of individuals. Matter of Doe,
302 N.J. Super. at 261.
VII. SEVERANCE
In State v. Garafola, 226 N.J. Super. 657 (Law Div.
1988), the assignment judge, while acknowledging that all
27 members of a racketeering enterprise may be indicted
and tried together, determined that the “inordinate length
and complexity” inherent in such a trial warranted
severance in the interests of fairness. The court accordingly
ordered that seven defendants -- the three public officials
and four “core” indictees -- be tried first. In reaching its
decision, the court considered: the estimated time needed
for presentation of the State’s case (at least four months);
the need for adjournment should any one of the
defendants, their counsel or the jurors become ill; the
physical problems attendant to accommodating 27
defendants and their counsel; the near impossibility of
obtaining a representative jury for a very lengthy trial, and
the “[o]verriding” concern that jurors will be unable to
comprehend, remember and evaluate evidence amassed
over a long period of time.
REMOVALREMOVALREMOVALREMOVALREMOVAL
(See also, FORFEITURE and MISCONDUCT
FROM OFFICE, this Digest)
I. FORFEITURE OF OFFICE REQUIRED FOR
THE COMMISSION OF AN OFFENSE
A. Statutory ProvisionsThe forfeiture of office statute, N.J.S.A. 2C:51-2, was
last amended in 1995 and affords courts the authority to
remove a person from their public office. State v. Roth, 95
N.J. 334, 357 (1984).B. ConstitutionalityThe statute constitutionally provides for a person’s
removal from any public office or position even if the state
constitution allows alternative methods of removal as to
that office, i.e., a state senator. State v. Pitman, 201
N.J.Super. 21, 25 (App. Div. 1985); State v. Musto, 187
N.J.Super. 264, 269, 282-06 (Law Div. 1982), aff’d, 188
N.J.Super. 106, 107-08 (App. Div. 1983).Removal from office is a civil remedy, or penalty, that
is a collateral consequences of conviction; it does not
constitute cruel and unusual punishment under the federal
and state constitutions. State v. Timoldi, 277 N.J.Super.
297, 298-01 (App. Div. 1994), certif. denied, 142 N.J. 449
(1995); see State v. Lazarchick, 314 N.J.Super. 500, 531
(App. Div.), certif. denied, 157 N.J. 546 (1998); State v.
Lee, 258 N.J.Super. 313, 317 (App. Div. 1992); Ayars v.
New Jersey Dep’t of Corrections, 215 N.J.Super. 223, 228
(App. Div. 1991); Old Bridge Public Workers and
Sanitation Union v. Township of Old Bridge, 231 N.J.Super.
205, 209 (App. Div. 1989); State v. Baber, 256 N.J.Super.
240, 245 (Law Div. 1992). Removal also does not violate
double jeopardy principles since it does not punish a public
office holder, and also is not a bill of attainder. Ayars v. New
Jersey Dep’t of Corrections, 251 N.J.Super. at 229-30.C. Offenses for Which Forfeiture May Be Required- Disorderly Person Offenses
The first sentence in N.J.S.A. 2C:51-2 make clear that
the disabilities therein enumerated can be invoked based
upon a conviction for “an offense.” Clearly, a conviction
for a crime is not required (expert for that portion of
subsection a(1) which specifically refers to “crimes”), and
disorderly persons offenses can suffice. No conflict exists
between this section and N.J.S.A. 2C:1-4b, which provides