Pratico v. Rhodes, A--80

Decision Date31 January 1955
Docket NumberNo. A--80,A--80
PartiesJohn PRATICO, Alex Lusky, Michael Gallione, Plaintiffs-Respondents, v. Raymond L. RHODES, County Treasurer of the County of Passaic, Defendant-Appellant.
CourtNew Jersey Supreme Court

Nicholas Martini, Passaic, for appellant.

Saul M. Mann, Paterson, for respondents.

The opinion of the court was delivered by

VANDERBILT, C.J.

The plaintiffs brought this action in the Passaic County District Court against the county prosecutor, seeking recovery of money taken from each of them during the course of a gambling raid. Subsequently the parties consented to the substitution of the present defendant, the county treasurer of Passaic County, in place of the prosecutor against whom the action was then dismissed. At the trial without a jury the testimony brought out that the essential facts were not in dispute.

The three plaintiffs were admittedly players in a dice game, which took place in the early morning hours of December 6, 1953, at 43 West Broadway in Paterson, New Jersey. State and county law enforcement officers, led by the county prosecutor, conducted a raid upon the game. The front entrance to the building was barricaded with a steel door, which the police tried unsuccessfully to break down. They finally were able to force an entry through a side door, but by that time the dice game had ceased and there was no money in view on the dice table. Of the 52 persons arrested, 48, including the three plaintiffs, were players, while four were operators of the game. According to the police the plaintiffs, along with the other players, emptied the contents of their pockets on the dice table pursuant to the order of the prosecutor. The plaintiffs, on the other hand, claim that the money was taken from them by one of the detectives. In any event, the money along with personal effects was admittedly in the plaintiffs' pockets at the time the police were finally able to gain admittance to the gambling room. All 52 persons were taken to the police headquarters where the 48 players, including the plaintiffs, were formally charged with, and subsequently pleaded guilty to, a violation of the city gambling ordinance, and as a result of the conviction each paid a fine of $200. The four operators of the game were subsequently indicted and convicted of operating a dice game contrary to the provisions of N.J.S. 2A:112--3, N.J.S.A. The personal effects of the players were returned to them, but the money seized in the raid was turned over to the defendant county treasurer as contraband of law, as required by N.J.S. 2A:152--7, N.J.S.A. It is the money which the plaintiffs seek to recover.

After a full trial the trial court entered judgment in favor of the plaintiffs, Pratico, Lusky and Gallione, in the amounts of $297.04, $205, and $265.01 respectively, these sums constituting the total amount taken from each by the police at the raid. The court found as a fact that the moneys seized from the respective plaintiffs belonged to them personally, were not being used as an integral part of the gambling operation, and were not dedicated thereto, and that such moneys were not earmarked and segregated as part of the gambling operation, and that the moneys seized were not a gambling device. The court further concluded that N.J.S. 2A:152--7, N.J.S.A., which provides that under certain circumstances moneys seized shall be deemed prima facie to be contraband, was not applicable to this case, and even if it were applicable the plaintiffs had overcome the prima facie presumption by showing that the moneys belonged to them personally and had not been used in any way in connection with the gambling.

On appeal the Appellate Division of the Superior Court affirmed in a two to one decision, 32 N.J.Super. 178, 108 A.2d 97, 100, the majority declining to upset the factual findings of the trial court, although admitting that 'we might have reached a different factual conclusion.' The dissenting state judge took the position that the statute, N.J.S. 2A:152--7, N.J.S.A., setting up a prima facie presumption was applicable to the case at bar, and that therefore the case called for an independent review of the facts which would compel a reversal of the decision of the trial court. The appeal is before this court as a matter of right in view of the dissent in the Appellate Division, R.R. 1:2--1(b).

The applicable statutory provision is as follows:

'2A:152--7. Whenever any money, currency or cash Shall be seized or captured by the police, constabulary or other officer In connection with any arrest for violation of or conspiracy to violate any gambling law of this state, the said money, currency of cash Shall be deemed prima facie to be contraband of law as a gambling device, or as part of a gambling operation, and it shall be unlawful to return the said money, currency or cash to the person or persons claiming to own the same, or to any other person, except in the circumstances and manner hereinafter provided.' (Italics supplied.)

(1) It is apparent that N.J.S. 2A:152--7, N.J.S.A. is applicable since clearly the moneys were seized by the police 'in connection with any arrest for violation of or conspiracy to violate any gambling law of this state.' The trial court was in error in concluding that to bring this particular section of the statute into play there had to be an arrest of the particular persons in possession of the money seized for violation of a New Jersey statute as distinguished from a municipal ordinance. First of all, the statute refers to 'any arrest' so the apprehension of the four operators of the game for violation of N.J.S. 2A:112--3, N.J.S.A. a gambling law of this State, makes it applicable to this case. As stated in State v. Link, 14 N.J. 446, 453, 102 A.2d 609, 613, (1954), 'the statutory qualifications are complied with if it appears the arrest was in connection with a violation of the gambling law.' Secondly, we cannot subscribe to the theory that the statutory words 'any gambling law of this state' are to be limited solely to enactments of the State Legislature. Rather the term refers to any lawful enactment covering gambling, regardless of whether it was passed by the Legislature or by a municipality under the powers granted to it by the Legislature, McGrath v. City of Bayonne, 85 N.J.L. 188, 192, 89 A. 48 (E. & A. 1913); People v. Ziady, 8 Cal.2d 149, 64 P.2d 425, 429, 430, 108 A.L.R. 1234 (Sup.Ct.1937); Southern Ry. Co. v. City of Danville, 175 Va. 300, 7 S.E.2d 896, 898 (Sup.Ct.Apps. 1940); Herman v. Mayor and City Council of Baltimore, 189 Md. 191, 55 A.2d 491, 494, 173 A.L.R. 1310 (Ct.Apps. 1947). Since they were arrested for violation of a municipal ordinance covering gambling, clearly the plaintiffs were arrested 'for a violation * * * of a gambling law of this state,' within the meaning of N.J.S. 2A:152--7, N.J.S.A.

(2) Under this statute the moneys seized 'shall be deemed prima facie to be contraband of law as a gambling device, or as part of a gambling operation.' The power of the Legislature to provide that certain facts shall be prima facie evidence of other facts is too well settled to require discussion by us, and in fact the plaintiffs have not challenged the establishment of this rule of evidence, nor its applicability to the case at bar; see McNeilly v. State, 119 N.J.L. 237, 241, 195 A. 725 (Sup.Ct.1937); State v. Lisena, 129 N.J.L. 569, 572, 30 A.2d 593 (Sup.Ct. 1943); affirmed 131 N.J.L. 39, 34 A.2d 407 (E. & A. 1943); Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632, 634 (1928); Goldberg v. Leuci, 123 N.Y.S.2d 154 (Sup.Ct. 1953); 4 Wigmore on Evidence, § 2494; annotation 162 A.L.R. 495. In Spagnuolo v. Bonnet, 16 N.J. 546, 558--559, 109 A.2d 623, 630 (1954), we noted the effect of this presumption:

'The intention of the Legislature in making such a declaration is obvious. It was and is to establish a rule of evidence, by a prima facie presumption to be used in the trial of the claim of property created by the act. Such presumption places the burden upon the claimant of coming forward with evidence to overthrow it.'

See Goldberg v. Leuci, supra, 123 N.Y.S.2d 154.

The question, then, is whether the plaintiffs have sustained the burden of proof in overcoming this presumption that the moneys in question were contraband, I.e., constituted an integral part of a gambling operation, or were earmarked or segregated for gambling purposes, Kenny v. Wachenfeld, 184 A. 737, 14 N.J.Misc. 322 (Sup.Ct. 1936); Becker v. Farley, 137 N.J.L. 191, 192, 59 A.2d 450 (E. & A. 1948); Krug v. Board of Chosen Freeholders, 3 N.J.Super. 22, 25, 65 A.2d 542 (App.Div. 1949); State v. Link, supra, 14 N.J. 446, 452, 102 A.2d 609, annotation 19 A.L.R.2d 1228.

The plaintiff Pratico testified that when he arrived at the gambling spot he had 'about $350' in his possession in ten, five and single bills. He stated that of this amount $250 had been in one of his pockets and had not been 'used' for gambling, while in the other pocket he had $100, which had admittedly been used for gambling, of which the amount of $47.04 remained at the time of the arrest after he had incurred losses at the dice table. He admitted that at the time of his arrest when the money was turned over to the police he made no effort to inform the police that only a part of the $297.04 had been used in gambling. His testimony was seriously impaired when on the defendant's case the county prosecutor testified that the plaintiff had all of his money, except for $5, in one pocket, and the chief clerk in the prosecutor's office who had participated in the raid testified to the same effect.

The plaintiff Lusky testified that of the $205 turned over to the police, $65 was in his left pocket, while the balance, $140, was in his wallet in a rear pocket. He testified that he had not 'used' any of the money in his wallet in connection with the dice game but had...

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    ...provided due regard is given to the opportunity of the trial court to judge of the credibility of the witnesses. Pratico v. Rhodes, 17 N.J. 328, 335, 111 A.2d 399 (1955); Kidde Manufacturing Co. v. Bloomfield,20 N.J. 52, 66, 118 A.2d 535 (1955); State v. H.L., 61 N.J.Super. 432, 437, 161 A.......
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    ...of credibility would be raised and this court might well be impelled to reverse the findings of fact below. See Pratico v. Rhodes, 17 N.J. 328, 335, 111 A.2d 399 (1955). Mr. Howard further testified that late in the year 1953 an additional agreement was entered into between himself acting f......
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