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State v. McCoy

Decided: December 1, 1976.


Carton, Kole and Larner. The opinion of the court was delivered by Kole, J.A.D.


In August 1974 police officers, pursuant to a warrant, conducted a gambling raid in which defendant and two codefendants were arrested. Allegedly illegal lottery items were confiscated, including $1,495 from the trunk of defendant's automobile and $19 from his person. The three men were indicted for violation of various gambling laws, tried and acquitted of all of the charges.

Defendant subsequently filed a motion in the criminal cause for return of the money seized at the time of arrest, pursuant to N.J.S.A. 2A:152-10. The county filed a cross-motion seeking the forfeiture of the $1,495 found in the automobile trunk.

At the hearing on the motions defendant presented testimony that the money seized was his. He stated it was raised by him and his brothers and sisters for medical treatment for their mother who was hospitalized; that at the time of his arrest he was planning to go south to see his mother and deliver the cash, and that he had earned his share of the money as a carpenter, or painter.

The county presented proof through one of the arresting officers, who was qualified as an expert in the field of illegal lottery operations. Introduced into evidence were papers containing lottery bets and "lottery codes" seized from a room in an abandoned building, and a notebook and papers containing the same lottery codes that were found in defendant's automobile trunk. Some lottery codes were written on an envelope addressed to defendant. These items had been admitted into evidence at the criminal trial. The officer stated that these papers were evidence of an illegal lottery operation. He said that the cash, found along with the papers in the trunk, had significance as the source from which to make payment in the event a number was "hit" and a payoff was necessary.

The trial judge found that, although defendant had proved ownership of the money in the automobile trunk, it was part of an illegal lottery operation. However, relying on State v. Rodriquez , 130 N.J. Super. 57 (App. Div. 1974), certif. den. 66 N.J. 325 (1974), the court ruled that the county could not relitigate in the forfeiture proceeding the issue of the existence of an illegal lottery operation and the connection of the money therewith, since that matter had been resolved against the State in the criminal action in which defendant had been acquitted. Accordingly, he ordered the money returned to defendant.*fn1

This appeal by the county followed. We reverse.

In State v. Rodriquez, supra , we rejected the conclusion in State v. LaBella , 88 N.J. Super. 330, 341 (Cty. Ct. 1963), that an acquittal of the accused bars a relitigation of the question of the existence of a gambling operation. We stated that an acquittal may well rest on an issue foreign to a forfeiture proceeding, and that a forfeiture proceeding was a civil action with a different standard of proof, making

application of the doctrine of collateral estoppel inappropriate. See also, State v. Rodriquez , 138 N.J. Super. 575 (1976), certif. granted 70 N.J. 277 (1976).

The problem which understandably faced the court below involved the further dictum in Rodriquez that "the government may not relitigate in a forfeiture proceeding an issue necessarily or specifically resolved against it in the criminal action." 130 N.J. Super. at 60. By reason of that statement the court felt bound to hold that the legal status of the money seized had already been litigated in the criminal proceedings, and that the money had to be returned to defendant, once he had proved ownership, even though the State (through the county) had sustained its burden of proving by a preponderance of the evidence that the money was part of an illegal lottery operation.

The legislation, N.J.S.A. 2A:152-6 to 11, of which the provision here involved (N.J.S.A. 2A:152-10) is a part, was enacted to discourage and prevent unlawful gambling. It accords with the strong policy in this State against the return of the fruits or implements of criminal activity. To assist in effectuating these purposes with respect to items and money used in or resulting from illegal gambling, the legislation provides a remedy by way of a civil forfeiture proceeding. This proceeding is a remedial device that is additional to the penal consequences of the criminal law relating to gambling offenses, and may be used even in the absence of an arrest. Farley v. $168,400.97 , 55 N.J. 31 (1969); Spagnuolo v. Bonnet , 16 N.J. 546, 558 (1954); State v. Link , 14 N.J. 446, 453 (1954); State v. Moriarty , 97 N.J. Super. 458, 474 (Law Div. 1967), aff'd 102 N.J. ...

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