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State v. Gallagher

Decided: June 20, 1994.


On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Before Judges Baime, Conley and Villanueva.


The opinion of the court was delivered by BAIME, J.A.D.

The State Grand Jury returned a multi-count indictment charging defendant and fourteen other persons with defrauding gambling casinos by illegally triggering slot machine jackpots. Several codefendants pleaded guilty. The charges against the others were dismissed. Tried alone, without a jury, defendant was found guilty of conspiracy to commit racketeering (N.J.S.A. 2C:5-2; N.J.S.A. 2C:41-2d), racketeering (N.J.S.A. 2C:41-2c), attempted tampering with a witness (N.J.S.A. 2C:5-1; N.J.S.A. 2C:28-5a), attempted theft by deception (N.J.S.A. 2C:5-1; N.J.S.A. 2C:20-4), theft by deception (N.J.S.A. 2C:20-4), swindling and cheating a casino (N.J.S.A. 5:12-113a), use of a cheating device (N.J.S.A. 5:12-114b(2)), possession of a cheating device (N.J.S.A. 5:12-114c), forgery (N.J.S.A. 2C:21-1a(2) and (3)), unsworn falsification (N.J.S.A. 2C:28-3), perjury (N.J.S.A. 2C:28-1) and tampering with public records (N.J.S.A. 2C:28-7). The trial court sentenced defendant to a custodial term of ten years on the conviction for racketeering. A consecutive five year sentence was imposed on

the conviction for perjury. Concurrent sentences were imposed on several additional counts and the other convictions were merged. Thus, the aggregate sentence is 15 years.

Defendant appeals, contending that (1) the trial court erred when it refused to permit him to represent himself, (2) he was deprived of due process because prison officials mistakenly injected him with Prolixin, a mind-altering drug, during trial, (3) he was prejudiced by the prosecutor's failure to provide complete pretrial discovery, (4) his motion to compel disclosure of the identity of an informant was erroneously denied, (5) the trial court's verdict was against the weight of the evidence, and (6) the sentence was manifestly excessive. We are convinced that the trial court committed constitutional error by denying defendant his Sixth Amendment right to represent himself. Although the State's evidence was substantial, we are constrained to reverse.


We need not recount the facts at length. The State's principal witness, Ross Durham, testified that he learned how to rig slot machines in the course of his employment with several Las Vegas casinos. To trigger an illegal jackpot, Durham would pry open the front plate of a machine, insert spacers, and manipulate the machine's spinning wheels using two thin wires. Teamwork was required to shield Durham's activities from detection. The leader of the group, John Vaccaro, would act as a "lookout" and "signalman," and others would serve as "blockers" to obstruct customers and security personnel from viewing Durham while he was manipulating the machine. After a jackpot was "hit," Durham, Vaccaro and the blockers would immediately leave the area. The only person remaining would be the jackpot "claimer," who, by arrangement, would stand beside Durham while he was rigging the machine.

"Claimers" were not a permanent part of the criminal organization, because they were required to identify themselves to casino

personnel in order to obtain the jackpot. Consequently, claimers were constantly being recruited and were paid a percentage of the jackpot. One of the principal problems of the scheme was to obtain reliable "outsiders" to act as claimers and perform their "one-time" services.

The scheme was initially limited to Las Vegas. In the late 1970's and early 1980's, the group was triggering a dozen illegal jackpots each week. Durham was receiving $500,000 to $600,000 annually as were Vaccaro and a third unidentified compatriot. The group's attention then turned to Atlantic City.

In 1981, Durham, Vaccaro and a third member of the scheme travelled to Bayonne where they met Louis Sclafane who agreed to recruit claimers. Subsequently, two members of the Nevada group - Kevin Brennan and Frank Cullinen - also became members of the New Jersey organization. Durham testified that it was necessary to obtain defendant's approval before rigging a slot machine in New Jersey. At some point, Durham met with defendant in Miami. Defendant agreed to recruit claimers for Atlantic City jackpots. According to Durham, other meetings with defendant were later conducted in Florida. Durham allegedly overheard a conversation between defendant and Vaccaro indicating that Gallagher recruited and controlled claimers in New Jersey.

Gradually, the Atlantic City casinos began to react to mounting evidence of slot machine cheating. John Connors, vice president of security at Caesar's Hotel and Casino, received information from an anonymous source that a group was rigging slot machines and that one member was named Frank Cullinen and another John. Connors also discovered an unusual number of jackpots reported on a particular bank of slot machines. Reviewing casino videotapes, Connors confirmed that "highly unusual activity" occurred when the jackpots were struck.

The State Police were notified. In the course of their surveillance, they noticed Durham's presence near one of the highest paying slot machines. Detective John Medolla recognized Durham

and two of the blockers from videotapes of prior jackpot wins. The detective observed Durham rigging the machine. As soon as the jackpot was registered, Durham, Vaccaro and two other individuals were arrested. However, a "tall white female" and another male were able to escape.

Detective Medolla subsequently obtained information from one of the persons arrested that led him to a hotel room in Atlantic City. The car that had been registered to that room had just left the valet parking lot. Further inquiry revealed that the automobile was registered to Maureen Healy. The police found the automobile parked on St. James Place. Two individuals - Healy and the defendant - later returned to the car and were detained. The detective determined that Healy ...

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