                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4929-11T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,                  APPROVED FOR PUBLICATION
v.
                                                    July 17, 2014
TWO THOUSAND TWO HUNDRED
                                               APPELLATE DIVISION
NINETY-THREE DOLLARS ($2,293)
IN UNITED STATES CURRENCY,

     Defendant.
_______________________________________________________

         Argued March 4, 2014 – Decided April 24, 2014

         Before Judges Messano, Hayden and Rothstadt.

         On appeal from the Superior Court of New
         Jersey, Law Division, Special Civil Part,
         Union County, Docket No. DC-6978-09.

         Rachel   E.  King  argued  the   cause  for
         appellant James Baker (Appellate Litigation
         Clinic Earle Mack School of Law at Drexel
         University, attorneys; Amy Montemarano, on
         the brief).

         Thomas   Haluszczak,   Jr.,  Special   Deputy
         Attorney General/Acting Assistant Prosecutor,
         argued the cause for respondent State of New
         Jersey (Grace H. Park, Acting Union County
         Prosecutor, attorney; Mr. Haluszczak, of
         counsel and on the brief).

         The opinion of the court was delivered by

MESSANO, P.J.A.D.
      James Baker appeals from the Law Division's order of April

18,   2012,    that    denied    his    motion    for     the   return    of   certain

property, specifically $2293 (the monies) seized by the State of

New Jersey (the State).           We set forth the procedural history.

      On April 16, 2009, the State filed a complaint in the Law

Division, Special Civil Part, seeking forfeiture of the monies.

See N.J.S.A. 2C:64-3(a).              The complaint alleged that the monies,

along with eighty-five glassine envelopes of suspected heroin

and other drug paraphernalia, were seized on January 22, 2009,

during the execution of a search warrant by the Elizabeth Police

Department.      The complaint demanded a jury trial.                     Attached to

the   complaint       was   a   lab    report   and    supporting    documentation

demonstrating the substance seized was heroin.

      Baker filed an answer pro se.                   He alleged that the State

actually      seized    "approximately         $2,800,"    which    was    money     "he

receive[d] from side work with his friend[s]," and he further

denied that drugs were ever sold from his house or car, the

locations for which the search warrant had been issued.                           Baker

attached two documents that allegedly supported his claim to the

monies.    A trial was scheduled for June 8, but the State sought

and was granted a stay of the proceedings pending resolution of

the criminal charges.           See N.J.S.A. 2C:64-3(f).




                                           2                                   A-4929-11T3
     Baker     was   subsequently         indicted        and    charged       with    third-

degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree

possession of heroin with intent to distribute, N.J.S.A. 2C:35-

5b(3); and third-degree possession heroin within 500 feet of a

public housing facility, N.J.S.A. 2C:35-7.1.                          A jury found Baker

guilty   of    all   charges,       and      on   January        6,    2012,    the      judge

sentenced     him    to    a    five-year        term    of     incarceration         with     a

thirty-month parole disqualifier.

     The record does not disclose if the stay of trial was ever

vacated.      Nevertheless, on April 18, 2012, Baker filed a pro se

motion   seeking     the       return   of    the       monies;       he   requested       oral

argument.      The certification supporting the motion essentially

reasserted the claims in the answer Baker originally filed in

2009.

     The State opposed the motion, relying upon N.J.S.A. 2C:64-

3(j).1      The     prosecutor      asserted        that      the      monies    were       "on

[Baker's] person [when] he was arrested and charged with the

crimes for which he has been duly found guilty, monies which

1
  That section provides: "Evidence of a conviction of a criminal
offense in which seized property was either used or provided an
integral part of the State's proofs in the prosecution shall be
considered in the forfeiture proceeding as creating a rebuttable
presumption that the property was utilized in furtherance of an
unlawful activity." N.J.S.A. 2C:64-3(j).




                                             3                                        A-4929-11T3
were    found    in     close   proximity    to   significant      quantities   of

heroin."    The assistant prosecutor also stated:

            [T]he State respectfully . . . asserts . . .
            that it has no burden to proceed with at
            this time.     The State is entitled to a
            rebuttable presumption that . . . [the]
            monies are tainted by criminal activity. It
            is up to . . . Baker to come forward and
            affirmatively prove that such funds are
            legitimate.    His alleged bank statements
            only show random deposits of cash from no
            verifiable legitimate source of funds and/or
            employment for the year 2009.

       The clerk of the court mailed notices to both parties on

May 2, 2012, informing them that the hearing on Baker's motion

was scheduled for May 16, 2012.              The notice to Baker was sent to

"N-S-P P.O. BOX 2300, NEWARK, NJ 07114," the address Baker used

when he filed his motion.            On May 7, the prosecutor wrote to the

assistant       civil     division    manager,     advising     of   defendant's

incarceration.          He asked "whether you will still proceed or

adjourn the matter upon . . . Baker's release from prison."                     The

record does not reveal whether the court responded.

       On the same day, the notice to Baker was returned to the

court    with    the     markings,    "RETURN     TO   SENDER[;]     INSUFFICIENT

ADDRESS[;] UNABLE TO FORWARD."               There is no indication in the

record that the court took any further action.

       On May 16, in appellant's absence, the prosecutor appeared

before the judge, and the following colloquy occurred:




                                         4                               A-4929-11T3
COURT: Unfortunately, [Baker is] not here
and the reason he's not here is because he
is in jail.

    . . . .

    So we have to deal without him.

PROSECUTOR:          Well,     yes,     Judge,
unfortunately.

COURT: [Baker] gives me no proof . . . that
the $[2293] is other [sic] than anything to
do with his private life.

PROSECUTOR:   Well, he hasn't provided any
proof, Judge.

COURT:   There's no proof at all.

    . . . .

     And there's a presumption that if
you're arrested and you've got money on you,
that that money comes from a drug deal, I
would imagine.

    . . . .

PROSECUTOR:  [Baker] failed his burden of
proof and I stand on the evidence admitted
in the criminal case.    And, accordingly,
would ask [y]our [h]onor to dismiss his
motion.

COURT:   That's what I’m going to do.

    . . . .

    The motion is denied.

    . . . .

     For the reasons that you have stated
and I have stated.




                      5                          A-4929-11T3
The prosecutor then marked three exhibits, which included an

expert     witness      report       from   Detective          Martin    Lynch,   Lynch's

curriculum      vitae    and     a    currency      seizure      report.       The     judge

examined     the     documents,         entered         them     into    evidence,      and

concluded they showed "clearly that the drugs and the money were

related    to   each     other."        The       judge   entered       the   order   under

review.2

     Baker's       essential         argument      is     that    he    was   denied    due

process because he failed to receive any, much less adequate,

notice of the motion hearing.                 He also contends that the judge

erred in applying the presumption contained in N.J.S.A. 2C:64-

3(j), and that a remand is necessary for a trial on the State's

complaint.      In large part, we agree that Baker was denied the

opportunity to contest the essential allegations contained in




2
  The order is clearly interlocutory because it only denied
Baker's motion and did not enter final judgment in favor of the
State.   See R. 2:2-3(a)(1) (providing for appeal as of right
only "from final judgments of the Superior Court trial
divisions").   At oral argument before us, both parties agreed
that, although final judgment was not entered, they viewed the
order denying Baker's motions as dispositive of all claims in
the case, and the State acknowledged that it was proceeding on
the assumption that the order effectively granted it a judgment
of forfeiture regarding the monies.         Under these unique
circumstances, we exercise our discretion and consider Baker's
notice of appeal as a timely-filed motion for leave to appeal,
which we grant nunc pro tunc. See Pressler & Verniero, Current
N.J. Court Rules, comment on R. 2:2-4 (2014).



                                              6                                   A-4929-11T3
the complaint.          Therefore, we reverse and remand the matter for

trial.

       We digress briefly to explain the statutory scheme that

permits    the     State        to     seek    forfeiture      of    the    monies.           A

forfeiture action is brought not against the owner of a res, but

instead    against        the     res      itself.      State       v.   Seven       Thousand

Dollars, 136 N.J. 223, 232-33 (1994).                       However, our courts have

recognized that certain constitutional protections attach to the

owner.      See     id.      at      239    ("[T]he    legal    fiction         of    in   rem

proceedings against the property cannot obscure the fact that

forfeiture really sanctions the owner of the property.").                                  The

Forfeiture Statute, N.J.S.A. 2C:64-1 to -9, must be strictly

construed against the State "in a manner as favorable to the

person whose property is to be seized as is consistent with the

fair   principles       of      interpretation."            Seven    Thousand        Dollars,

supra,    136    N.J.     at    238     (citations     omitted).          The    Court     has

recognized       "the    criminal          character   of    forfeiture         proceedings

despite    its    adoption        of     the   civil   burden       of   proof,      and   has

impressed on civil forfeiture proceedings certain protections

normally     associated           with      criminal    trials."           Id.       at    239

(citations omitted); see also State v. One 1990 Honda Accord,

154 N.J. 373, 393 (1998) (holding that the right to a jury trial

applies to forfeiture cases).




                                               7                                     A-4929-11T3
       "In New Jersey, as elsewhere, [t]he essential components of

due process are notice and an opportunity to be heard."                             First

Resolution Inv. Corp. v. Seker, 171 N.J. 502, 513-14 (2002)

(alteration in original) (internal quotation marks and citation

omitted).      We have held "[d]ue process requires that deprivation

of    property    by    state    action     be    preceded        by   notice    and    an

opportunity to be heard."            Twp. of Jefferson v. Block 447A, Lot

10, 228 N.J. Super. 1, 4 (App. Div. 1988) (citation omitted).

In other settings involving the deprivation of property rights,

the   United     States    Supreme      Court     has      held   "the   government's

knowledge     that     notice    pursuant      to    the    normal     procedure       was

ineffective trigger[s] an obligation on the government's part to

take additional steps to effect notice."                     Jones v. Flowers, 547

U.S. 220, 230, 126 S. Ct. 1708, 1716, 164 L. Ed. 2d 415, 428

(2006); see also Twp. of Brick v. Block 48-7, Lots 34, 35, 36,

202    N.J.    Super.     246,    254    (App.      Div.     1985)     (remanding        to

determine     whether,     based   in      part     upon    the    return   of     mailed

notice, government officials had actual knowledge that notice of

impending foreclosure suit would likely not be delivered).

       Our research has not revealed, nor have the parties cited,

any New Jersey case that specifically deals with the issue of

inadequate       notice     and      its       effect       thereupon       forfeiture

proceedings arising from a criminal prosecution.                       However, other




                                           8                                     A-4929-11T3
jurisdictions    have     considered             the    issue     directly,     some     in

circumstances    where,    as        here,       the    government     knew     that   the

notice provided was actually not received.                        In United States v.

One Toshiba Color Television, 213 F.3d 147, 149-50 (3d Cir.

2000), the court set aside a forfeiture judgment, finding that

mailed notice to the inmate was inadequate absent demonstration

that the procedures at the facility were "reasonably calculated

to deliver the notice to the intended recipient."                             In another

federal forfeiture case, Rodriguez v. Drug Enforcement Admin.,

219 Fed. Appx. 22 (1st Cir. 2007), the court held that "if the

government knew or had reason to know that the notice would not

reach the appellant then notice was inadequate."                               Id. at 23

(citing Flowers, supra, 547 U.S. at 230, 126 S. Ct. at 1716, 164

L. Ed. 2d at 428); see also Volpe v. United States, 543 F. Supp.

2d 113, 119-20 (D.Mass. 2008) (setting aside forfeiture because

the written notice of seizure was returned with the marking

"addressee unknown," and government failed to make reasonable

efforts to ascertain the claimant's current address); State v.

Twenty-Eight    Thousand       Six    Hundred          Eighteen     Dollars,    212    P.3d

502,   506    (Okla.    Civ.     App.    2009)          ("In    a    civil     forfeiture

proceeding,     when    certified        mail          is   returned     unclaimed,       a

reasonable effort must be made to determine if another address




                                             9                                   A-4929-11T3
for the claimant may be found before the prosecuting agency may

conclude that the claimant's address is 'unknown.'").

      The State argues that Baker's presence at the motion was

not   mandatory,    because     he    had    only   a   qualified   right      to   be

present at any trial on the forfeiture complaint.                        We do not

necessarily disagree.

      However, Rule 6:3-3(c)(1) provides that "[n]o oral argument

of a motion shall be permitted unless specifically demanded by a

party     or   directed    by   the     court."         In   this     case,    Baker

specifically sought an opportunity to orally argue the motion.

In the Special Civil Part, "[o]ral argument is required to be

granted as of right on timely request, the date and time to be

set by the court, which will then advise the parties."                     Pressler

&   Verniero,    Current    N.J.     Court     Rules,    comment    on    R.   6:3-3

(2014).

      More     importantly,     as    noted,     the    State   and      the   judge

apparently viewed the motion hearing as the equivalent of a

trial on the merits of the State's complaint.                   In this regard,

the court was required at a minimum to provide adequate notice

of the proceeding and accord Baker, who had filed an answer to

the complaint, an opportunity to appear and present a defense.

      In Beneficial of New Jersey v. Bullock, 293 N.J. Super.

109, 110 (App. Div. 1996), we considered an inmate's challenge




                                        10                                  A-4929-11T3
to a default judgment entered against him while incarcerated.

On   the    trial   date,   the   defendant     failed      to   appear,   and    he

asserted     that   the     default    judgment    was      improperly     entered

because he was unable to secure transportation from the prison.

Ibid.      We held that "if [an] inmate asserts the right to defend,

or a meritorious defense, the trial court must determine how to

proceed     after   considering       the   totality   of    circumstances       and

balancing the equities."              Id. at 112.        Those considerations

include

             the position of the parties with respect to
             the needs for a speedy disposition, the
             . . . efforts of the parties to secure
             defendant's       presence,     including     the
             defendant's       ability     and     plaintiff's
             willingness     to    pay,    the   nature    and
             complexity of the action and the expected
             length   of     incarceration,    'whether    the
             prisoner's claims are substantial;' 'whether
             a determination of the matter can reasonably
             be delayed until the prisoner is released;'
             'whether the prisoner can and will offer
             admissible, noncumulative testimony which
             cannot    be     offered        effectively    by
             deposition,      telephone     or     otherwise;'
             'whether     the     prisoner's    presence    is
             important    in    judging   his   demeanor   and
             credibility compared with that of other
             witnesses;' 'whether the trial is to the
             court or to a jury' and 'the prisoner's
             probability of success on the merits.'

             [Id. a 112-13 (citation omitted); see also
             United Jersey Bank v. Siegmeister, 163 N.J.
             392, (2000) (where the Court remanded for
             consideration utilizing the factors cited in
             Bullock).]




                                        11                                 A-4929-11T3
       Here, it is undisputed that Baker intended to contest the

merits of the State's complaint.                    He filed an answer setting

forth     his     defense,       attached         exhibits          that        he     claimed

demonstrated      the     monies      were    not    the       proceeds         of    illegal

activity and affirmatively moved for the return of the monies.

       Additionally, there is a regulatory scheme in place that

governs    the    costs    of    transporting            an    inmate      to    court        for

appearance in certain "civil action[s]."                           N.J.A.C. 10A:3-9.13.

When     the    inmate    "is    a    defendant      and       the     plaintiff         is    a

governmental entity," those costs are borne by the Department of

Corrections.          N.J.A.C. 10A:3-9.13(a)(3).                   While Baker was not

technically a "defendant" in this litigation, for the reasons

cited,    he    was    effectively      the       party       in    interest         defending

against the State's forfeiture case and entitled to certain due

process    safeguards.          Thus,    the      regulations          anticipated            and

authorized the judge to have ordered Baker's presence for the

ultimate       hearing    on    the    merits       of    the       State's      forfeiture

complaint.

       Therefore, to the extent the court and the State viewed the

disposition of the motion as the equivalent of final judgment on

the forfeiture complaint, we reverse the order under review and

remand the matter to the Law Division for trial on the State's




                                             12                                       A-4929-11T3
complaint.     Baker shall be provided with notice of trial and the

court shall order his production.3

     Baker also argues that the judge misapplied the presumption

contained in N.J.S.A. 2C:64-3(j).               We address that point to

provide guidance in the event there are future proceedings.

     Under the Forfeiture Act, property may be categorized as

either prima facie contraband or derivative contraband.                   Seven

Thousand     Dollars,   supra,    136    N.J.    at     233.      Prima   facie

contraband     includes   items     such    as        "controlled    dangerous

substances; firearms unlawfully possessed, carried, acquired or

used; illegally-possessed gambling devices; untaxed cigarettes;

and untaxed special fuel."        Ibid. (citing N.J.S.A. 2C:64-1a(1)).

Derivative contraband, on the other hand, is itself innocent in

nature but subject to forfeiture because it either has been used

or is intended to be used in furtherance of an unlawful activity

or represents proceeds of illegal activities.                  N.J.S.A. 2C:64-

1(a)(2)-(4).




3
  We hasten to add that it is unclear from the record what might
have happened had Baker never made the motion and the complaint
remained subject to the stay previously entered.    We note that
the prosecutor specifically inquired whether the court intended
to adjourn the motion until Baker was released.      We do not,
therefore, foreclose consideration of whether the forfeiture
complaint should remain subject to the stay pending Baker's
completion of his sentence.



                                    13                                A-4929-11T3
       N.J.S.A.        2C:64-3     governs          forfeiture        actions      involving

derivative contraband.                To forfeit derivative contraband, the

State    must     bring    a   civil     action        within       ninety     days    of    its

seizure.        N.J.S.A. 2C:64-3(a).            The State must then prove by a

preponderance of the evidence that there is a "proximate and

substantial"       causal      connection           between     the      property      and    an

indictable offense.            Seven Thousand Dollars, supra, 136 N.J. at

234-35.         N.J.S.A.       2C:64-3(j)           provides     the      State       with    an

evidentiary presumption if two prerequisites are satisfied: the

State must demonstrate (1) evidence of a conviction; and (2)

that    the     seized    property       "was        either     used      or   provided       an

integral part of the State's proofs in the prosecution."

       Undoubtedly, the thrust of the prosecutor's argument at the

motion     hearing       was     that    the        State     had     proven      these      two

prerequisites.           Based upon the record before us, we conclude

that the State demonstrated Baker had been convicted, since it

attached a copy of the judgment of conviction to its opposition

to   Baker's     motion.         Whether       the     State    satisfied       the     second

prerequisite is unclear.                 Lynch's report was based upon his

examination       of    the    prosecutor's           file.         He    concluded       Baker

possessed the CDS "with the intent to distribute" based on five

factors, including $2000 "seized in denominations . . . commonly

seen     from    street       level     drug        proceeds."           The   judge      never




                                               14                                     A-4929-11T3
determined whether this was sufficient to establish that the

monies   were   "used   [in]   or   provided   an   integral   part   of    the

State's proofs in the prosecution."          N.J.S.A. 2C:64-3(j).

       Instead, when he considered the issue, the judge simply

stated that the presumption applied because, "if you're arrested

and you've got money on you, . . . that money comes from a drug

deal . . . ."     (Emphasis added).        That was a misstatement of the

law.

       At trial, the State is required to prove the prerequisites

that permit the presumption to be found in the first instance.

Moreover, like any other presumption, it may be rebutted by

other evidence adduced from whatever source, be it proof adduced

by the State or by Baker himself.

       Reversed and remanded for further proceedings consistent

with this opinion.




                                      15                              A-4929-11T3
