STATE OF NEW JERSEY VS. SCOTT GEDDES (14-05-0625, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 23, 2020
• Docket: A-2713-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2713-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT GEDDES, a/k/a SCOTT D. GEDDES,

Defendant-Appellant. _______________________

Submitted October 20, 2020 – Decided December 23, 2020

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 14-05-0625.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Deputy Public Defender, of counsel and on the briefs).

Mark Musella, Bergen County Prosecutor, attorney for respondent (Ian C. Kennedy, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals the denial of his motion to compel the State of New

Jersey to return items that were seized when he was arrested in 2014 for

impersonating a law-enforcement official and other crimes. We agree that the

motion should have been denied, not for the reasons expressed by the motion

judge, but because it was procedurally improper, and on that limited basis we

affirm.

While investigating a car accident, police officers noticed defendant's

parked car, which was decorated to look like an unmarked law-enforcement

vehicle. When questioned by one of the officers, defendant identified himself

as a law-enforcement officer and produced an identification card indicating he

was an officer. After defendant failed to provide other information regarding

his law-enforcement job, the officer asked him to exit his vehicle and took from

defendant a loaded revolver, a knife, and six rounds of bullets. In defendant's

wallets, the officers found identification cards in defendant's name from other

law-enforcement agencies, a handcuff key, a Miranda warning card, and a Los

Angeles Police Department "get out of jail free" card. With defendant's consent,

one of the officers searched his vehicle and found bags containing clothing, a

A-2713-18T3 2 bag containing "an extensive amount of badges," and a bullet-proof vest.1 The

officers brought defendant to their station, where he confessed that he was not a

police officer, and impounded his vehicle.

Defendant was charged with unlawful possession of a handgun without a

permit, N.J.S.A. 2C:39-5(b); possession of a handgun by a certain person not to

possess weapons, N.J.S.A. 2C:39-7(a); impersonating a law-enforcement

officer, N.J.S.A. 2C:28-8(b); possession of a false government-issued

identification, N.J.S.A. 2C:21-2.1(d); knowingly exhibiting a false government-

issued document, N.J.S.A. 2C:21-2.1(e); possession of certain prohibited

weapons, N.J.S.A. 2C:39-3(c); and the disorderly persons offense of possession

of handcuffs, N.J.S.A. 2C:39-3(k). Pursuant to a plea agreement, defendant pled

guilty to one count of second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b), and agreed to forfeit "the weapon in question and any ammunition

that was seized."

Defendant was sentenced to five-years imprisonment with three years of

parole ineligibility. The remaining charges were dismissed. During the

1 During oral argument before the motion judge, the assistant prosecutor identified other seized items that were not referenced in the complaint: knives, police notepads, a radio, and a baton. In its appellate brief, the State references handcuffs and a gas mask. A-2713-18T3 3 sentencing the assistant prosecutor noted "one other stipulation": "[h]e's got to

forfeit all the weapons that they found." The sentencing judge confirmed with

both counsel that additional stipulation: as part of the plea agreement defendant

would forfeit "all weapons." Defense counsel did not object and thanked the

court. The judgment of conviction provided that defendant was to "forfeit

weapons." Defendant did not move to correct or amend that judgment.

When he completed his prison sentence, defendant contacted the police

department to retrieve the property and was told that the prosecutor's office had

to authorize the release of any seized evidence. In a 2018 email to a member of

the prosecutor's office, defense counsel stated that defendant understood that he

could not recover "weapons or weapons related items," which she identified as

"handgun, holster, ammo belt pouch and bullets," or law-enforcement

"identification cards that have his name on it" and that defendant was "mainly

looking for the badges."2 She asked for an appointment to inspect the property

so defendant could identify what he wanted returned. According to counsel, she

2 During oral argument, defense counsel represented to the motion judge that defendant "is willing to accept the fact that some of these badges could constitute contraband, but not all" and indicated that defendant had "conceded" that "[a]nything with his name and picture, associated with the badge in on e of those fold outs" could be "misconstrued as contraband." She represented that defendant "only wanted the badges that did not have . . . the fold out, his name, his picture." A-2713-18T3 4 was advised that the prosecutor's office intended to prepare an inventory of the

items and to determine what, if anything, it would release to him. She received

no further communication regarding the inventory effort.

In this closed criminal case defendant moved to compel "the Immediate

Release of Personal Property." Defendant did not support that motion with his

certification, but with the certification of his attorney, who represented that

defendant "only wanted his personal property and was not seeking a return of

any contraband." Neither defendant nor his counsel identified what constituted

his "personal property" and what was contraband. Defense counsel also

asserted, without personal knowledge and contrary to Rule 1:6-6, that "[s]ome

of these items have sentimental value and cannot be replaced." She did not

identify what those items were. Other than his counsel's statement and a

reference to her email, defendant did not identify the specific items he wanted

returned to him. Citing the Attorney General Guidelines for the Retention of

Evidence (Guidelines), the State asserted that defendant was not entitled to

recover the property because it was evidence of defendant's unlawful effort to

impersonate a police officer. In reply, defendant argued that that dismissed

charge could not be the basis for the State's retention of the seized property,

A-2713-18T3 5 noting that the State had not asked defendant to forfeit the property in the plea

agreement.

Although the State in its opposition to defendant's motion had not

referenced New Jersey's forfeiture statute, N.J.S.A. 2C:64-1 to -9, the motion

judge "interpret[ed] the State's general argument as an implicit invocation" of it.

While recognizing that the State had "declined to seek forfeiture of the property"

and acknowledging that "these are not forfeiture proceedings," the motion judge

nevertheless found based on the "interplay between the forfeiture statute . . . and

the Guidelines," that defendant "is not permitted to recover any property seized

. . . that was an integral part of, or used in furtherance of, the unlawful activity

of impersonating a police officer" and denied defendant's motion.

Defendant appeals, arguing that the forfeiture statute did not and could

not prevent the return of the property because the State had not instituted a civil

action for forfeiture within ninety days of the seizure, pursuant to N.J.S.A.

2C:64-3(a). Alternatively, defendant contends that none of the seized property

was prima facie contraband and that the motion judge erred in finding the State

had established under N.J.S.A. 2C:64-1(a) that the badges and bullet-proof vest

were an integral part of defendant's commission or intended commission of the

crime of impersonating a police officer and, thus, were derivative contraband.

A-2713-18T3 6 In response, the State concedes that it is not holding the property as

evidence and no longer relies on the Guidelines to prevent its return. The State

now asserts that except for defendant's "personal clothing," the remaining seized

items are or "may also be" prima facie or derivative contraband. The State

faults defendant for seeking on appeal the return of items he had not sought in

his motion or had forfeited in his plea agreement. The State asserts that the

motion judge properly forfeited prima facie contraband, which the State

contends includes false law-enforcement credentials, and, if the badges are not

prima facie contraband, the motion judge properly found that the badges and

bullet-proof vest were derivative contraband. The State excuses its failure to

file timely a forfeiture action regarding the derivative contraband, which

defendant raised for the first time on appeal, as something that "should yield to

the State's paramount interest in public safety," while faulting defendant for not

filing a civil replevin action under N.J.S.A. 2B:50-1 to -5 and Rules 4:61-1 to -

5. The State for the first time in this appeal argues that defendant's 2018 motion

somehow rendered any State forfeiture action concerning its 2014 seizure of

property duplicative, thereby justifying the State's failure to file its action. The

State correctly notes that "the record lacks any development of the reasons for

the State not filing," attributing that deficiency to defendant's failure to raise

A-2713-18T3 7 below the State's failure to comply with the ninety-day filing deadline set forth

in N.J.S.A. 2C:64-3.

In reply, defendant now contends that he is entitled to the return of all

seized property, except what was forfeited in the plea agreement, which he limits

to the handgun and ammunition, disregarding the additional stipulation as to the

forfeiture of "all weapons" reached at sentencing and memorialized in the

judgment of conviction and his counsel's 2018 email and representations to the

moving judge stating that defendant sought the return only of badges that did

not bear his name. He asserts that none of the items he seeks is prima facie

contraband, contending, with no support in the record and no specifics as to

which items he is referencing, that he "possessed these items as a hobby." He

faults the State for not bringing a forfeiture action and for not meeting its burden

of proof under the forfeiture statute and excuses his failure to file a replevin

action.

A defendant has a right not to be deprived of property without due process

under the Fourteenth Amendment. State v. Melendez, 240 N.J. 268, 272, 277

(2020). Given that constitutional right, "[a]s a general rule, forfeiture statutes

are disfavored and are strictly construed against the State." Id. at 278.

A-2713-18T3 8 New Jersey's forfeiture statutory scheme, N.J.S.A. 2C:64-1 to -9, creates

two categories of property subject to forfeiture: (1) prima facie contraband and

(2) derivative or non-prima facie contraband. State v. Seven Thousand Dollars,

136 N.J. 223, 233 (1994). The Legislature expressly designated certain items as

prima facie contraband, including "firearms which are unlawfully possessed."

N.J.S.A. 2C:64-1(a)(1). Non-prima facie or derivative contraband, such as

"property which has been, or is intended to be, utilized in furtherance of an

unlawful activity" or "which has become or is intended to become an integral

part of illegal activity," also may be subject to forfeiture. N.J.S.A. 2C:64-1(a)(2)

to (3).

"Prima facie contraband is automatically forfeited once seized by the

State." Seven Thousand Dollars, 136 N.J. at 233; see also N.J.S.A. 2C:64-2;

Melendez, 240 N.J. at 279. The State does not have to initiate a judicial

proceeding for the forfeiture of prima facie contraband. Dragutsky v. Tate, 262

N.J. Super. 257, 260-61 (App. Div. 1993); see also Melendez, 240 N.J. at 278-

79 (finding that the State "may" file a forfeiture action regarding prima facie

contraband, but is not bound by the timeframe set forth in N.J.S.A. 2C:64 -3);

State v. One Wrist Sling Shot, 230 N.J. Super. 498, 503-04 (App. Div. 1989).

A-2713-18T3 9 "[T]o enforce forfeiture of derivative contraband[,] the State must bring a

civil action within ninety days of the seizure against the property sought to be

forfeited." Seven Thousand Dollars, 136 N.J. at 233; see also N.J.S.A. 2C:64-

3(a); Melendez, 240 N.J. at 279. In that action, "the State must prove by a

preponderance of the evidence that the derivative contraband seized 'was

connected to unlawful activity.'" Melendez, 240 N.J. at 280 (quoting Seven

Thousand Dollars, 136 N.J. at 233).

Because the State does not have to file a forfeiture action regarding prima

facie contraband, a claimant who seeks the return of prima facie contraband has

to file a replevin action. Dragutsky, 262 N.J. Super. at 263. The State "should

have an opportunity to present evidence to establish that the property seized

constitutes prima facie contraband." One Wrist Sling Shot, 230 N.J. Super. at

505. Where the State has not instituted foreclosure proceedings for derivative

contraband under N.J.S.A. 2C:64-3, a claimant who seeks the return of

derivative contraband may file a replevin action, which is "the correct form of

procedure." State v. Cavassa, 228 N.J. Super. 204, 210 (App. Div. 1988); see

also State v. Howery, 171 N.J. Super. 182, 184 (App. Div. 1979) (finding that

"proper procedure which defendant should have followed was to file a complaint

seeking replevin of the property"); State v. One 1976 Pontiac Firebird, 168 N.J.

A-2713-18T3 10 Super. 168, 177-78 (App. Div. 1979). A defendant may file a motion for the

return of property in a criminal case if his "claim raise[s] no disputed issues."

Cavassa, 228 N.J. Super. at 210-11.

In defendant's claim, nearly everything is disputed. It isn't even clear what

items the State seized and what items defendant wants returned. The State has

not provided an inventory of the seized items but instead submitted a photograph

too blurry for a detailed examination of the items depicted, which do not appear

to be all of the items seized. The descriptions of the items seized presented in

the complaint, at oral argument, and in the State's appellate brief are not

consistent. Defendant has been inconsistent in referencing the items he wants

returned, ranging from irreplaceable items of sentimental value (which

defendant does not identify) to badges without his name to everything but the

handgun and bullets. Defendant asserts that none of the items is prima facie

contraband. The State contends that some are or "may also be" prima facie

contraband.

We agree that defendant's motion should have been denied but not for the

reasons articulated by the motion judge. Defendant's motion was procedurally

improper. Instead of filing this motion in a criminal case that had been closed

since his 2014 sentencing, defendant should have filed a complaint in the Law

A-2713-18T3 11 Division specifying and seeking the seized property he wants returned. Instead

of denying defendant's motion as being procedurally improper, the motion judge

erred in attempting to decide a forfeiture action even though the State ha dn't

filed one and had not relied on the forfeiture statute in opposing defendant's

motion. On the sparse and murky record before her, the motion judge should

not have considered the motion substantively. Unlike Cavassa, this case does

not involve a "claim [that] raised no disputed issues" and, thus, is not appropriate

for "economical" motion practice in the closed criminal case. 228 N.J. Super.

at 210-11.

A full and fair proceeding in a case brought by defendant would allow the

parties to determine the exact nature of the items defendant seeks to have

returned to him and the items the State seeks to retain, whether any of those

items constitute prima facie or derivative contraband, and whether the State has

any viable defense to the return of derivative contraband given that it did not

file a forfeiture case pursuant to N.J.S.A. 2C:64-3.3 Through that procedure, the

3 As in Dragutsky, we "need not deal with the question whether the State, if barred by the ninety-day requirement of N.J.S.A. 2C:64-3a, may nevertheless employ one of the procedures provided by N.J.S.A. 2A:37 to escheat abandoned property." 262 N.J. Super. at 264. A-2713-18T3 12 parties can create a proper record on which to adjudicate any dispute as to

ownership and release of the property held by the State.

Although we affirm the end result of the motion judge's decision – the

denial of the motion – the substance of her decision should not be given any res

judicata effect including as to defendant's right to the return of seized property,

the State's right to retain that property, or what constitutes prima facie or

derivative contraband. In whatever procedurally proper matter that may follow

this decision, the parties will then have a full opportunity to develop and provide

support regarding their respective entitlement to the retention or return of the

seized property and a judge can decide the issues presented on a fully developed

record.

Affirmed.

A-2713-18T3 13