State v. Sherry

• Decision Date: 22 January 1965
• Docket Number: No. A--1004,A--1004
• Citation: 86 N.J.Super. 296,206 A.2d 773
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Ann SHERRY, a/k/a Ann Kreiner, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 296

86 N.J.Super. 296

206 A.2d 773

STATE of New Jersey, Plaintiff-Appellant, v. Ann SHERRY, a/k/a Ann Kreiner, Defendant-Respondent.

No. A--1004.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 21, 1964.

Decided Jan. 22, 1965.

Nelson G. Gross, County Counsel, for appellant.

Norman Fischbein, Newark, for respondent.

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The County of Bergen appeals from a Law Division order granting defendant's application for the return of $2,719.50 alleged to have been illegally seized as a result of a search of her apartment, and directing the county treasurer, to whom the county prosecutor's office had paid the money, to remit that sum to her.

On January 23, 1961 a detective in the prosecutor's office applied to the county judge for a warrant authorizing a search of defendant's apartment. His affidavit stated that located therein was 'certain property used as a means of committing a misdemeanor in violation of * * * 2A:87--1 Abortion.' The facts supporting the application and tending to establish probable cause were given as 'Confidential information received by the Prosecutor's Office.' The record does not disclose the source of that information.

A warrant at once issued authorizing the detective or any police officer to enter and search the apartment and take into possession the following specifically described property: 'Drugs, syringes, catheter tubes, various and sundry items for the purpose of committing an abortion.'

Five members of the prosecutor's staff, one a woman, went to the apartment, opened the door without difficulty, and entered the living room. They immediately encountered defendant and placed her under arrest. The raiding party found a Miss Kitman lying on a couch in the next room and, after summoning a doctor to examine her, had her removed to a hospital. They then searched the apartment. Their inventory of items taken lists a large number which clearly fall within the category of drugs and other equipment which might be used in performing an abortion. In addition, it lists as separate items $2,000 in $20 bills, $220 consisting of one $50, one $10 and eight $20 bills, a National State Bank of Newark bank book, and a safe deposit box key. Also taken were a typewriter, a jar of cough syrup, 'Sundry Items' and 'Assorted papers and Books' (not further described), as well as '1 Check in a mousetrap.'

The money was found in several places in the apartment. In searching a small room apparently used by defendant as her office, one member of the search party noticed a tear in the upholstery backing of a couch, reached in and found an envelope containing $2,000 in $20 bills. The $220 was found in another, unspecified place. Members of the raiding party who testified on behalf of the county in opposition to defendant's application for the return of the money, did not state where the balance of the money was found, I.e., the difference between the $2,220 and the $2,719.50 to which defendant lays claim. The county has not contested the latter figure at any time.

It appears that just before the raid county detectives had had Miss Kitman's father under surveillance at a motel in the area. At the moment the raiding party entered defendant's apartment, these detectives were ordered to take Kitman into custody. He was brought to the prosecutor's office and interviewed there. Defendant, meanwhile, had also been brought there and was present during that part of the interview when Kitman stated that she had picked him up at the Newark Airport on Sunday, January 22 (the day before the raid), and he had given her $2,500 to abort his daughter. She had also given his daughter a pill which she was to take early the next morning. He said he had taken his daughter to defendant's apartment at noon on Monday. Defendant who, as noted, was already under arrest, did not comment on what Kitman told the prosecutor.

The Bergen County grand jury returned two indictments, one charging defendant with abortion and the other with conspiracy to commit an abortion. She pleaded not guilty to the latter but then changed the plea to Non vult. She was later sentenced to serve an indeterminate term at Clinton Reformatory and pay a fine of $1,000 at the rate of $50 a month. The abortion indictment was dismissed by the county judge at the time of this sentencing. Kitman, named as the person with whom defendant had unlawfully conspired to abort his daughter, apparently was never indicted. Nor was he produced to testify at the hearing on defendant's application for the return of her money. He has made no claim to $2,500 of the monies now held by the county treasurer.

When defendant's application first came up for hearing, the matter was put off at the county's request so that it might have an opportunity to examine her and submit testimony in support of its position. On the adjourned date the county presented the testimony of two of the detectives who were in the raiding party, and then rested.

The county now argues that defendant has not shown that the money seized was hers. The money was found in her apartment, and the apartment was in her possession and control. Possession of personal property is Prima facie evidence of its ownership. The county had the burden of proof of overcoming the presumption of defendant's ownership. Spagnuolo v. Bonnet, 16 N.J. 546, 554, 109 A.2d 623 (1954); Redmond v. New Jersey Historical Society, 132 N.J.Eq. 464, 469, 28 A.2d 189 (E. & A.1942). The county made no effort to do so.

The county's contention that the $2,719.50--or at least $2,500 of it--did not belong to defendant seems to be based on the argument that $2,500 did not effectively pass into her hands: it was the fruit of an illegal transaction. But there is no proof whatever that any of the money found in the apartment came from Kitman. Nowhere in the apartment did the raiding party find the specific sum of $2,500, segregated and earmarked so as to identify it as the sum paid by Kitman to defendant the previous day, after they had met at the airport. Defendant's attorney was invited by the court to concede that $2,500 of the money seized represented the sum received from Kitman. He declined to do so. Kitman himself was not called by the county. The trial judge could not and did not find that the $2,500 was part of the money seized. The county's suggestion that the money was the fruit of an illegal transaction, contraband, and therefore subject to forfeiture, accordingly finds no support in the proofs. Cases like Spagnuolo v. Bonnet, above; Neiman v. Hurff, 11 N.J. 55, 93 A.2d 345 (1962), modifying 14 N.J.Super. 479, 82 A.2d 471 (Ch.Div.1951), and Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531 (Ct.App.1957), affirming 285 App.Div. 968, 138 N.Y.S.2d 682 (App.Div.1955), remittitur amended 2 N.Y.2d 882, 161 N.Y.S.2d 137, 141 N.E.2d 623 (Ct.App.1957), on which the county relies, are not apposite.

Spagnuolo involved the seizure of monies in the course of a gambling raid, a subject specifically dealt with by the Legislature in N.J.S. 2A:152--7 to 11, N.J.S.A. Money so seized is deemed Prima facie to be contraband as a gambling device or as part of a gambling operation. Upon conviction of the person arrested, the county treasurer may, after six months from the entry of the conviction, apply to the County Court for an order to show cause why the money should not be forfeited to the sole use and gain of the county. The order is to be served upon the person from whom the money was taken, and upon the return of the order the court is to conduct a summary hearing at which proof of the conviction shall be Prima facie evidence that the money seized was used in connection with a gambling operation. And see Pratico v. Rhodes, 17 N.J. 328, 111 A.2d 399 (1955).

Neiman was a case where a defendant murdered his wife. The court held that legal title to their residence, held by the entireties, as well as corporate stock jointly owned, did not vest in the husband on his wife's death, but he would hold the property in trust for the wife's beneficiary, subject to a lien thereon for the commuted value at the time of her death of the net income of half the property for the number of years of his life expectancy, as determined by the mortality tables. To do otherwise would violate the common law policy that no one shall be allowed to profit by his own wrong.

In Carr v. Hoy, above, plaintiff had collected a fee of $10 each from a number of persons for the privilege of attending a farm outing and there photographing female models, some of whom posed in the nude. The sheriff appeared on the scene, arrested all concerned, and took from plaintiff and kept the money he had collected from his customers. Plaintiff pleaded guilty to a charge of outraging public decency, and paid a $50 fine. The other persons arrested pleaded guilty to disorderly conduct. The sheriff's refusal to return the admission monies resulted in plaintiff's bringing an action in trover. The trial court dismissed the complaint. Successive appeals to the Appellate Division and the Court of Appeals resulted in affirmances. The Court of Appeals said that it was settled law that a party to an illegal contract cannot ask a court to help him carry out his illegal object, nor can such a person plead or prove a case in which, as a basis for his claim, he must show his illegal purpose. The money which plaintiff sued for, said the court, was the fruit of an admitted crime and 'no court should be required to serve as paymaster of the wages of crime.' It made no difference that defendant had no title to the money; the court's concern was not with defendant's position but with the question of whether recovery by plaintiff should be denied for the sake of the public interest. The court then described the public policy involved in the language of the famous case of Riggs v. Palmer,...