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McGill v. County of Essex

Decided: April 15, 1965.

JACQUELINE MCGILL, PLAINTIFF,
v.
COUNTY OF ESSEX AND BRENDAN T. BYRNE, ESSEX COUNTY PROSECUTOR, DEFENDANTS



Whipple, J.s.c. (temporarily assigned).

Whipple

[87 NJSuper Page 368] This matter is before the court on a complaint whereby plaintiff Jacqueline McGill moves for an order requiring that the County of Essex and its prosecutor return any and all monies taken

from the person of plaintiff on or about June 18, 1964. Although the county treasurer is not specifically named as a defendant in the complaint, this court will treat the matter as if he were joined. The county opposes these proceedings. The prosecutor did not take any position in the proceedings. The essential facts are as follows:

For approximately one week prior to June 18, 1964 the Newark police placed under surveillance the premises at 29 Cottage Street, Newark. Each evening, between 7:00 and 7:05 P.M., a man known to the police as a lottery operator carried a package into the house at 29 Cottage Street. On June 18, 1964 a search warrant was issued by a magistrate of the Newark Municipal Court, authorizing the police to search said premises in that there was reasonable cause to believe that certain slips, papers, etc., were being used in connection with the "crime of lottery and/or bookmaking and/or gambling." Later that day John Bennett and Daniel J. Cullinane, Jr., Newark detectives, went to search the premises. After a 3-4-minute delay they were permitted to enter. Present in the first floor apartment at the time of the detectives' arrival were plaintiff, who resided in the apartment, and a Daniel P. Haas, who lives at 830 South 11th Street, Newark. Upon seeing the detectives, plaintiff walked to her dresser to pick up a purse. Detective Bennett went over and took the purse, which plaintiff was reluctant to surrender. Bennett explained to plaintiff that they were police officers with a search warrant. Finally, the purse was opened by Bennett, who found $816.45 in cash. Bennett testified that "[i]n the middle of this was a slip which, from my experiences, showed me these represented codes handed in by what we call runners with the amount alongside each of the code numbers." Code numbers constitute a letter and two numbers, plus a cash figure, e.g., C 14 $100. Bennett testified to these facts at least three times on direct and cross-examination, and on each occasion his version of what he found was the same. Cullinane corroborates Bennett and confirms that a slip was found with the money in the purse.

Bennett further testified that plaintiff told him that the $816.45 was her money, but he found her hesitant to explain further except that she did state, "I have saved that." Plaintiff does not contradict this conversation and, at the hearing, she elaborated on her earlier statement to Bennett by testifying that $250 was vacation pay and the rest she had saved, since she "had planned a vacation to Texas to join my husband" at Fort Bliss. Plaintiff also testified that there was no code slip in the purse on the dresser, but only $816.45 and personal belongings, thereby contradicting Bennett and Cullinane.

Upon a further search of the premises the detectives found $1300 on Haas ($1320 according to the police report), but this was not confiscated because the detectives saw "no connection" with the suspected lottery operation. Bennett and Cullinane also found one adding machine on the first floor and another on the second floor, together with adding machine tapes. On a night table next to a bed in plaintiff's apartment Cullinane found a second purse containing slips of paper which indicated to him that they were "tally sheets" or "rundown sheets" or "tapes" from an adding machine, with various figures indicated thereon. Plaintiff, at the hearing, denied ownership of the adding machines. She conceded there may have been one machine in the kitchen, but she stated that she did not know its purpose. She further testified that there was a bundle of Armstrong Racing Sheets in the living room, as well as two ledger books in the kitchen closet, and that the ledger books did not have the names of horses in them but only how they finished, i.e., first, second or third.

The testimony of Officers Bennett and Cullinane, summarized above, is credited. Any testimony by plaintiff at variance therewith is discredited. The testimony of both officers impressed me as truthful, straightforward, and that of disinterested parties. The crediting of both Cullinane and Bennett is predicated, in part, on my observation of their demeanor on the stand. As to plaintiff, I found her to be

evasive, often hesitant, and unworthy of belief. I specifically discredit plaintiff insofar as she claims that there were no slips but only the $816.45 and personal belongings in the purse picked up by Bennett. This discrediting is premised on the reasons set forth above, her demeanor, and the improbable nature of her testimony. Moreover, according to Bennett, plaintiff merely said, "I have saved that," when the money was taken from her; that plaintiff was hesitant in responding, and that she refused to discuss the matter further. It is indeed strange that plaintiff was so reluctant at the time of the arrest, whereas at trial she recited a careful explanation.

In resolving this credibility conflict I have considered the police report, prepared by Cullinane and read by Bennett, wherein it is stated that in the purse on the dresser was the $816.45, and that a tally sheet, tape, etc. were in the purse next to her bed. Hence, there is no mention in the report that the purse on the dresser which held the $816.45 also contained a code slip, although Bennett testified that the slip was in the middle of the $816.45. He was corroborated by Cullinane on this point. The court does not regard this minor inconsistency as dispositive. I am satisfied, based on my observation of the witnesses and a careful examination of the record, that the slip of paper with code numbers thereon was found with the $816.45 in the purse picked up by Bennett.

Both Haas and McGill were arrested for possession of lottery paraphernalia and conspiracy to operate a lottery. It was stipulated that the Essex County grand jury did not indict either Haas or McGill. The $816.45 has been retained by the county pursuant to N.J.S. 2A:152-7 which provides:

"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 or 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 ...


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