2004-331, STATE OF NH v. ALFRED J. GERO

twenty firearms, plus ammunition. In connection with his arrest, State Police seized from the defendant over officer at the time, was arrested for allegedly threatening his former girlfri end. The following facts are not in dispute. The defendant, who was a police

plea motion to destroy seized property. We vacate in part and remand. argues that the Superior Court (Sullivan, J.) erre d in granting the State’s post charge of criminal threatening, see RSA 631:4 (Supp. 2004). On appeal, he BRODERICK, C.J. The defendant, Alfred J. Gero, pled guilty to one

and orally), for the defendant. Sheldon, Davis & Wells, P.C., of Keene (Ja mes Romeyn Davis on the brief

brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen G. LaBonte, attorney, on the

No. 2004 - 3 31 Cheshire

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

( p. 2 2) the hearing on the State’s motion afforded the defendant sufficient due firearms, thus rendering any infringement upon his property rights minimal; should b e upheld because: (1) the defendant can no longer legally possess any their release to his brother. The State asserts that the trial court’s order commission of the crime; and (2) he did not seek return of the items, but rather process because: (1) the items were not contraband and were not used in the remaining items was neither in the public interest nor consiste nt with due brother and two to his son. Instead, he argues that destruction of the The defendant does not challenge the release of four firearms to his

articles seized.” This appeal followed. discussion, ruled that “the public interest requires destruction of the rem aining to the defendant’s son. As for the remaining property, the trial court, with no guns, although in the defendant’s possession at the time of his arrest, belonged not allow the defendant any access to [them].” The trial co urt found that two representations that if he [were] awarded the guns, he [would] keep [them] and representation that he [would] possess no guns in the future and his brother’s ruling as to those firearms was “based in part on the defendant’s brother had belonged to the defendant’s father and grandfather. The court’s they belonged to his brother. The other two guns released to the defendant’s defendant ’s brother were in the defendant’s possession at the time of his arrest, The trial court found that although two of the four guns released to the

remaining items destroyed. defendant’s brother and two guns to the defendant’s son, and ordering the motio n, the trial court issued a written order releasing four guns to the moved to destroy the seized property. Following a hearing on the State’s The defendant pled guilty to the amended charge. Thereafter, the State

members, to wit: [He] said he would “blow them away . . . .” with a purpose to terrorize [the victim] and/or her family did threaten to commit a crime against the person of another

misdemeanor. The amended indictment alleged that the defendant: Winchester. Subsequently, the State amended the charge to a class A The threat was alleged to have occurred at the defendant’s residence in

gun cabinet and said he would “blow them away . . . .” and/or her family members, to wit: [He] took a pistol out of his means of a deadly weapon, with a purpose to terrorize [the victim] did threaten to commit a crim e against the person of another by

criminal threatening, alleging that he: The State originally indicted the defendant on one count of felony p. 3 3

order that property be sold or destroyed pursuant to RSA 595 - A:6 only if it first (Emphasis added.) A plain reading of this provision reveals that a court may forfeiture and either sale or destruction as the public interest requires.” shall be disposed of “as the court or justice orders, which may include Police.” RSA 595 - A:6 provides, however, that certain items seized by the police firearms and ammunition seized, be destroyed by the New Hampshire State Pursuant to RSA 595 - A:6,” and requested the trial court to “[o]rder that the The State titled its motion, “State’s Motion to Destroy Seized Property

accordingly. under the “[a]ll other property” clause of the statute, we conduct our analysis case. Because the parties do not contest the trial court’s treatme nt of this case focus upon the application of the public interest requirement to the facts of this destruction of the remaining property, and the parties’ arguments on appeal In this case, the trial court ruled that the public interest required

court or justice, and in accordance with due process of law. destruction as the public interest requires, in the discretion of the justice orders, which may include forfeiture and either sale or the owner of the property, or shall be disposed of as the court or otherwise coming into the hands of the police shall be returned to . . . All other property seized in execution of a search warrant or any other property of evidential value, not constituting contraband. owners any stolen, embezzled or fraudulently obtained property, or and except for good cause shown, order returned to the rightful appeal after trial, shall, upon notice to a defendant and hearing, defendant, or civil claimants, the court, prior to trial or upon an or used as evidence in any trial. Upon application by a prosecutor, court or justice so long as necessary to permit them to be produced take, he shall seize and safely keep them under the direction of the authorized method, finds property or articles he is empowered to If an officer in the execution of a search warrant, or by some other

RSA 595 - A:6 (2001) provides, in relevant part:

Lambert, 147 N.H. at 296 (quotation omitted). ruling wa s clearly untenable or unreasonable to the prejudice of his case.” decision is not sustainable, the defendant must demonstrate that the court’s unsustainable exercise of discretion standard). “To show that the trial court’s 1089, 1090 (1982); cf. State v. Lambert 147 N.H. 295, 296 (2001) (explaining 595 - A:6 for an unsustainable exercise of discretion. State v. Heber t, 122 N.H. We review a trial court’s ruling on the disposition of property under RSA

therefore the public has a strong interest in having them destroyed. process; and ( p. 3 3) the weapons we re related to the defendant’s threat, and p. 4 4

possession of property by the police do not divest individuals of their ownership property, pending disposition by a court or justice. The seizure and continued Thus, the statute authorizes police to maintain custody of seized

the public interest requires.” Id. justice orders, which may include forfeiture and either sale or destruction as be returned to the owner of the property, or shall be disposed of as the court or rightful owners, except for good cause shown, and “[a]ll other property . . . shall RSA 595 - A:6. Then, property with evidential value is to be returned to its necessary to permit them to be produced or used as evidence in any trial.” keep [the property] under the direction of the court or justice so long as to a search warrant or “some other authorized method,” the police are to “sa fely The statute provides that once property is seized by the police pursuant

misconstrues RSA 595 - A:6. brother and not forfeited and destroyed. In so arguing, the defendant brother the court should, therefore, have ordered them to be released t o his The defendant appears to be arguing that because he sold the items to his

certainly to secure the monetary value. transferred to his brother to be kept within the family, and in regard to all of these firearms, and we’re asking that they be they, in fact – and the defendant has given his brother a bill of sale And given the family reference to [the firearms], we are asking that

motion, the defendant, through counsel, stated: destroyed rather than releasing it to his brother. At the hearing on the State’s The defendant asserts that the trial court erred in ordering the property

his or her ownership in the property by ordering forfeiture. sold or destroyed pursuant to RSA 595 - A:6, it must first divest an individual of to common and approved usage). Thus, before a court orders that property be RSA 21:1, :2 (2000) (in interpreting statute, words shall be construed according Webster’s Third New International Dictionary 891 (unabridged ed. 2002); see

other act. effects in consequence of a crime, offense, breach of condition, or obligation b : loss of some right, privilege, estate, honor, office, or one’s breach of the terms of an agreement, bond, or other legal compensation to him : the loss of property or money on account of person on account of the breach of a legal duty and without any 1 a : the divesting of the ownership of a particular property of a

p. 5 595 - A:6, is commonly defined as follows: orders that the property be forfeited. Forfeiture, which is not defined in RSA 5

that the property be destroyed. exists, of whether, once the trial court ordered forfeiture, it correctly ordered to his brother. Thus, we need not determine the separa te issue, assuming one rights in the remaining items such that he could not transfer title or possession defendant’s contentions is that the trial court erred in severing his property property should be ordered destroy ed. In other words, the essence of the in ordering that the property be forfeited, and not whether, once forfeited, the We construe these arguments as addressing whether the trial court erred

brother. seeking possessi on of the property, but wanted the items released to his Additionally, he challenges the trial court’s order on the basis that he was not he characterizes as State and federal constitutional “private property rights.” argues that RSA p. 5 595 - A:6 protects his “substantive due process rights,” which property rights absent significant, countervailing public need.” Further, he in fact this nation, evidences a bedrock principal [sic] of protecting private protected, private property rights;” and (3) “the ‘public policy’ of this State, and crime;” (2) “the [trial court’s] Order deprives [him] of his co nstitutionally property which is not contraband and was not used in the commission of a contends that: (1) “existing forfeiture case law does not support the taking of remaining firearms and ammunition for feited and destroyed. For example, he that the trial court unsustainably exercised its discretion in ordering the The defendant advances several arguments in support of his contention

propert y should be forfeited under RSA p. 5 595 - A:6 is one of first impression. subsidiary findings necessary to support general findings). The issue of when Assoc. v. Ventullo, 151 N.H. 571, 586 (2004) (we assume trial courts make correct in ruling that the property be forfeited. See Nordic Inn Condo. Owners’ discretion in ordering the property destroyed, we first consider whether it was To determine whether the trial court unsustainably exercised its

property transferred to the defendant’s brother based upon the bill of sale. his brother and the court, th erefore, was under no obligation to order the Accordingly, the defendant did not have the power to sell the seized property to statute delegates the disposition of seized property to a court or justice. dispose o f the property by selling it or otherwise; the plain language of the unavailable to the owner of the property in the sense that he or she may not and continued possession of property by the police render the property presumed to waste words or enact redundant provisions). Rather, the seizure Timberlane/Hampstead School Dist., 143 N.H. 331, 339 (1 999) (legislature not and either sale or destruction” would be redundant. See Marcotte v. express authorization that courts may dispose of seized property by “forfeiture of the property such tha t forfeiture has occurred; otherwise, the statute’s p. 6 6

decision, in re levant part, as follows: motion. Id. at 224, 225. The court of appeals explained the basis for its superior court’s order and directed it to issue an order denying the defendant’s The Commonwealth appealed, and the court of appeals vacated the

223 - 24. to possess the items in prison was for correctional officials to decide. Id. at forfeiture. The court further reasoned that whether the defendant was allowed possibility of parole, there was no compelling public interest justifying explained that in light of the defendant’s life te rm of imprisonment without the bearing the victim’s address be returned to the defendant. Id. The court property except the contents of the victim’s pocketbook and an envelope the remainder of his property. The superior court ultimately ordered that all The defendant then filed a motion in the superior court, seeking return of

Id. defendant’s father and sister, but retained trial exhibits and child pornography. retu rned camera equipment, business records and other similar items to the connection with the murder investigation. The district attorney’s office prosecuted his case, seeking the return of property seized from his home in conviction, the defendant contacted the district attorney’s office that had possibility of parole. Beldotti, p. 6 669 N.E.2d at 223. Several years after his sex crime” in affirming his conviction, and sentenced to life without the crime which the Massachusetts Supreme Judicial Court referred to as a “brutal In Beldotti, the def endant had been convicted of first - degree murder, a

discretion of the court or justice . . . . and either sold or destroyed, as the public interest requires, in the be disposed of as the court or justice orders and may be forfeited and all other pr operty seized in execution of a search warrant shall clause First of section one shall be restored to the owners thereof; any trial. As soon as may be, thereafter, all property seized under necessary to permit them to be produced or used as evidence in keep them, under the directi on of the court or justice, so long as property or articles therein described, he shall seize and safely If an officer in the execution of a search warrant finds

chapter 2 p. 7 7 p. 6 6 § 3 provides: 5 38 (Mass. 1996), cert. denied, 520 U.S. 1173 (1997). The relevant portion of Commonwealth, 669 N.E.2d 222 (Mass. App. Ct.), review denied, 672 N.E.2d interest” for purposes of Mass. Gen. Laws ch. 276, § 3 (2005). Beldotti v. property seized by the police, and in doing so, interpreted the term “public squarely addressed the issue of when the public int erest requires forfeiture of In Beldotti v. Commonwealth, the Massachusetts Court of Appeals 7

relationship the property has to the crime. the crime, the circumstances surrounding the crime and the particular the totality of the circumstances, including, among other things, the nature of the criminal justice system.” Id. Both determinations require consideration of on the part of the general public” that it would “undermine public confidence in c ivilized society,” or “would justifiably spark outrage, disgust, and incredulity defendant “would be so offensive to basic concepts of decency treasured in a under which the crime was committed; or (2) returning the property to the relevant to an understanding of the psychological or physical circumstances that it either influenced a defendant’s behavior in r elation to the crime, or is property involved directly relates to the acts underlying the committed crime in in the public interest, other than contraband, should occur when: (1) the repugnant. Indeed, we are persu aded by the notion that forfeiture of property not contraband, may not be forfeited simply because it is offensive or We agree with the court’s conclusion in Beldotti that property, which is

Id. at 225 (quotation, citations and brackets omitted; emphasis in original).

a right to expect in the criminal justice system. society, that it would undermine the confidence that the public has offensive to basic concepts of decency treasured in a civilized In these circumstances, to return the property would be so

. . . . physical circumstances under which the crime was commi tted. as being relevant to an understanding of the psychological or directly related to those acts, as having influenced his behavior, or defendant] seeks to have returned to him can be seen as being life - term was particularly gruesome . . . . The items th at [the he committed. The murder for which [the defendant] is serving his that [the defendant] seeks to have returned to him and the crime offensive or repugnant, we see a connection between the property Although property may not be forfeited simply because it i s

This is such a case. criminal act by refusing to return the property to the offender. therefore within the public interest to punish the offender for the because it results in total lo ss of the property. In some cases, it is illicit activity and of imposing a penalty. Forfeiture is punitive forfeiture proceeding has the dual purpose of preventing further and State laws have been enacted to deter criminal activity. A against the public interest and comm on welfare, and thus Federal whether a person is directly harmed, are considered to be offenses as it is used in G.L. c. 2 p. 7 76, § 3. However, all crimes, regardless Massachusetts case law has never defined “public interest” p. 8 8

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

pr oceedings consistent with this opinion. items ordered to be forfeited and destroyed, and remand for further Accordingly, we vacate the portion of the trial court’s order that relates to the unable to determine what reasoning the court used to reach its conclusion. interest required forfeiture and destruction of the p roperty. Therefore, we are did not engage in any discussion regarding its conclusion that the public announce today for determining when forfeiture is in the public interest, and in making that determination, the court did not have the benefit of the test we required forfeiture of the property. See Nordic Inn, 151 N.H. at 5 p. 8 86. However, doing so, the court made a threshold determination that the public interest and so n, the trial court ordered that the remaining items be destroyed. In Here, after releasing several pieces of property to the defendant’s brother

announced test. This requirement is satisfied when property falls within the scope of our newly d isposition of property under the statute comport with due process of law. system. Finally, RSA 595 - A:6 contains an express requirement that the directly on the issue of maintaining public confidence in our criminal justice circumstances in determining whether to return property to a defendant bears deterrent effect. Moreover, requiring courts to c onsider the totality of the property would not comport with appropriate punishment or have a meaningful defendant’s crime. In the absence of such a relationship, the forfeiture of could be ordered forfeit ed even when it has no appreciable relationship to a satisfies one or both of the considerations outlined above; otherwise, property forfeiture of property that is not contraband should occur when the property deterring future criminal conduct. Additional punishment in the form of The public has an interest in punishing those who commit crimes and i n