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State v. Sherry

Decided: January 22, 1965.


Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d. Sullivan, J.A.D. (dissenting).


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 (1954); Redmond v. New ...

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