State v. Sherry

• Decision Date: 20 December 1965
• Docket Number: No. A--16,A--16
• Citation: 215 A.2d 536,46 N.J. 172
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Ann SHERRY, a/k/a Ann Kreiner, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 172

46 N.J. 172

215 A.2d 536

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

No. A--16.

Supreme Court of New Jersey.

Argued Oct. 13, 1965.

Decided Dec. 20, 1965.

Nelson G. Gross, Bergen County Counsel, for appellant.

Norman Fischbein, Newark, for respondent.

The opinion of the court was delivered by

WEINTRAUB, C.J.

This matter involves a motion for the return of moneys seized by police authorities.

Defendant Sherry was indicted for conspiracy to commit abortion and for the crime of abortion. Upon a plea of Non vult to the conspiracy, she was sentenced to imprisonment. The abortion charge was dropped. She then moved in the criminal cause for an order directing the County to return to her the sum of $2,719.50 seized in a search of her apartment. The County resisted the claim as to $2,500, that being the amount the father of the pregnant girl allegedly paid defendant at the time of the abortion. The trial court ordered the entire sum to be paid to defendant and the Appellate Division affirmed, one judge dissenting. State v. Sherry, 86 N.J.Super. 296, 206 A.2d 773 (App.Div.1965). The County's appeal comes to us as of right. R.R. 1:2--1(b).

Sherry's application was supported by an affidavit in which she said cryptically that the sum of $2,719.50 was seized on January 23, 1961 by the office of the prosecutor and 'That she is the lawful owner and has the right to said fund.' No other facts were alleged, and the grounds of the application, as stated in the brief in support of the motion, were (1) that the seizure was made under a warrant which was 'improvidently' issued and (2) that there is no statutory authority for the forfeiture of the moneys.

I

The County objected to Sherry's effort to try this controversy by affidavit. The County was correct. Whether the claim is made within the criminal cause or by an independent action, factual disputes must be heard upon live testimony with opportunity for cross-examination. Further, the issues should be framed so that the litigants will know what claims to meet and the trial judge will more readily comprehend precisely what must be decided. Here, the specific basis for the trial court's decision is not clear. In the Appellate Division the question the judges found critical and upon which they divided was whether the County proved the moneys seized included the $2,500 paid for the abortion involved in the criminal charge. Yet counsel for Sherry had almost conceded that fact in the argument of the motion in the trial court, and the trial judge made no finding upon it.

For the reasons hereinafter stated, we think the decisive question is whether the moneys seized included moneys paid for this abortion. To the extent that they did, Sherry would not be entitled to recover. The cause must be remanded to the trial court for a plenary hearing upon that issue.

II

Sherry contends that there cannot be a 'forfeiture' of property unless a statute so authorizes and adds, accurately, that no such statute covers the situation before us. She says too that a 'forfeiture of estate' is precluded by N.J.S. 2A:152--2, N.J.S.A. which reads:

'No conviction or judgment for any offense against this state, shall make or work corruption of blood, disinherison of heirs, loss of dower, or forfeiture of estate. * * *'

We think neither proposition is involved.

As to the first, we are not concerned with whether property owned by Sherry was forfeited because of some illegal use to which she put it; the question rather is whether she can claim title to the fruit of the illegal act, and if so whether she may have the aid of the court to retake it from the County.

As to the statute we have quoted, there is no effort here to deprive Sherry of her former estate because of a conviction for some crime unrelated to it. Nor is an effort made to take her general estate upon a generalized claim that it is the product of a life of crime. See In re Ginsburg, 147 F.2d 749 (2 Cir. 1945). On the contrary, the question is whether Sherry has an enforceable right to enjoy the specific product of a criminal event. The statute does not deal with that subject. It does not displace judicial concepts of public policy with respect to acquisition or enforcement of property rights. Thus, for example, our cases hold that notwithstanding the statute, one who kills may not retain property which comes to him because of his victim's death. Neiman v. Hurff, 11 N.J. 55, 93 A.2d 345 (1952); Merrity v. Prudential Ins. Co., 110 N.J.L. 414, 166 A. 335 (E. & A.1933); In re Estate of Kalfus v. Kalfus, 81 N.J.Super. 435, 195 A.2d 903 (Ch.Div.1963).

There seems to be no dissent from the view that a court will not order the return to the culprit of the fruit of the specific criminal venture with which he is charged. See Clark v. United States, 102 U.S. 322, 332, 26 L.Ed. 181, 184 (1880); United States v. Teed, 185 F.2d 561 (9 Cir.1950); United States v. Thomas, 75 F.2d 369 (5 Cir. 1935); United States v. Ortiz, 140 F.Supp. 355 (S.D.N.Y.1956); United States v. Pagan, 140 F.Supp. 711 (S.D.N.Y.1955); United States v. Sprinkles, 138 F.Supp. 28 (E.D.Ky.1956); United States v. Connaughton, 39 F.2d 237 (E.D.N.Y.1930); United States v. Galbreath, 8 F.2d 360 (N.D.Calif.1925); Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531 (Ct.App.1957); Hofferman v. Simmons, 290 N.Y. 449, 49 N.E.2d 523 (Ct.App.1943); Petz v. Property Clerk, 149 N.Y.S.2d 179 (Sup.Ct.Spl.T.1956); cf. State v. Frye, 194 S.W.2d 692 (Springfield Ct.App.Mo.1946). These cases find it incomprehensible that government should assist the guilty in a claim to the produce of their lawlessness. In essence there is applied in favor of government the policy of the familiar rule that the courts will not aid a culpable party with respect to a criminal transaction. The New York cases cited above go even further; they not only hold that the judicial process is unavailable to that end, but say also that the offender has no title at all, that no man may 'acquire property by his own crime.' See Carr v. Hoy, supra, 2 N.Y.2d, at p. 187, 158 N.Y.S.2d, at p. 575, 139 N.E.2d, at p. 533. Upon either view, Sherry must fail as to moneys paid her to abort the girl.

As we noted at the outset, Sherry asserts that the moneys should nonetheless be returned to her because the search, she claims, was illegal. Whether the search was valid, we cannot say on this record. A plenary hearing might well have brought the situation within...