State v. Howery

New Jersey Superior Court App Division

State v. Howery

408 A.2d 445, 171 N.J. Super. 182, 1979 N.J. Super. LEXIS 970

CourtNew Jersey Superior Court Appellate Division

DecidedNovember 9, 1979

StatusPublished

Cited by4 cases

This text of 408 A.2d 445 (State v. Howery) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Howery, 408 A.2d 445, 171 N.J. Super. 182, 1979 N.J. Super. LEXIS 970 (N.J. Ct. App. 1979).

Pincite

Opinion

BY THE COURT.

Defendant was convicted on February 22, 1974 under Indictment 787 — 72 for possession of a controlled dangerous substance (count 1) and possession of burglary tools (count 2). Subsequently he was convicted under another indictment and is presently confined. He filed a motion seeking the return of $135.89 and 11 assorted knives that had been seized under a search warrant which was executed June 30, 1972. The motion came on for hearing on October 20, 1978, at which time there was a discussion on the record in which the trial judge, defendant and the assistant prosecutor participated. The hearing was extremely informal, and no testimony under oath was adduced. At the conclusion of the hearing the motion was denied.

Presumably, the motion was made under R. 3:5-7(e). Although there was no motion to suppress the evidence made at any time, we presume that this motion was brought under the assumption that it was authorized by R. 3:5-7(e). That assumption was incorrect. A motion for the return of property seized can only be made under that rule in conjunction with a motion to suppress.

Since the charge against defendant did not result in an acquittal or other final determination in his favor, the motion could not be brought under N.J.S.A. 2A:152-10.

[184]*184The proper procedure which defendant should have followed was to file a complaint seeking replevin of the property. State v. Hughes, 138 N.J.Super. 298, 301 (Law Div. 1975); cf. State v. Sherry, 86 N.J.Super. 296, 306 (App.Div.1965) (Sullivan, J. A. D., dissenting), rev’d 46 N.J. 172 (1965).

Since the proceedings in the criminal cause were improper, the order appealed from is vacated and the motion dismissed without prejudice to defendant proceeding by way of replevin, subject to whatever defenses the parties who may be defendants in that action have. No costs.

Free access — add to your briefcase to read the full text and ask questions with AI

BY THE COURT.

Defendant was convicted on February 22, 1974 under Indictment 787 — 72 for possession of a controlled dangerous substance (count 1) and possession of burglary tools (count 2). Subsequently he was convicted under another indictment and is presently confined. He filed a motion seeking the return of $135.89 and 11 assorted knives that had been seized under a search warrant which was executed June 30, 1972. The motion came on for hearing on October 20, 1978, at which time there was a discussion on the record in which the trial judge, defendant and the assistant prosecutor participated. The hearing was extremely informal, and no testimony under oath was adduced. At the conclusion of the hearing the motion was denied.

Presumably, the motion was made under R. 3:5-7(e). Although there was no motion to suppress the evidence made at any time, we presume that this motion was brought under the assumption that it was authorized by R. 3:5-7(e). That assumption was incorrect. A motion for the return of property seized can only be made under that rule in conjunction with a motion to suppress.

Since the charge against defendant did not result in an acquittal or other final determination in his favor, the motion could not be brought under N.J.S.A. 2A:152-10.

[184]*184The proper procedure which defendant should have followed was to file a complaint seeking replevin of the property. State v. Hughes, 138 N.J.Super. 298, 301 (Law Div. 1975); cf. State v. Sherry, 86 N.J.Super. 296, 306 (App.Div.1965) (Sullivan, J. A. D., dissenting), rev’d 46 N.J. 172 (1965).

Since the proceedings in the criminal cause were improper, the order appealed from is vacated and the motion dismissed without prejudice to defendant proceeding by way of replevin, subject to whatever defenses the parties who may be defendants in that action have. No costs.

Cite This Page — Counsel Stack

Bluebook (online)

408 A.2d 445, 171 N.J. Super. 182, 1979 N.J. Super. LEXIS 970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howery-njsuperctappdiv-1979.

Opinion

Related

Cite This Page — Counsel Stack