STATE OF NEW JERSEY VS. SCOTT GEDDES (14-05-0625, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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
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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.
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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."
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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,
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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.
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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
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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.
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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).
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"[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.
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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
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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.
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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.
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