On appeal from Bergen County Court, Law Division, certified to this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
A jury in the Bergen County Court convicted defendant upon both counts of an indictment for nonfeasance in his office as Sergeant of Detectives of the Police Department of Cliffside Park. His appeal to the Superior Court, Appellate Division, was certified here on our own motion.
The headquarters and control center of a widespread gambling operation conducted by Frank Erickson were located at 452 and 454 Palisade Avenue, Cliffside Park. They were established in 1945 and operated over five years without interference from law enforcement authorities. Erickson employed about a dozen "sitters" who worked daily at various locations outside Cliffside Park taking bets over the telephone, usually on horse racing but some times on other sporting events. The sitters neither received nor paid out moneys at their telephone locations. They noted on a small ticket the amount of each bet, the name of the horse, and the name of each player who telephoned his bet, and each night at the close of the day's business delivered the tickets to 452 Palisade Avenue. The sitters came to 452 Palisade Avenue the following morning at about 8 o'clock and remained until 9 or 9:30 tabulating the results of the previous day's play. Each sitter consulted the Morning Telegraph or the Racing Form, sources recognized as official by the gambling fraternity, to ascertain the winner and the pari-mutuel odds of the races run the day before, and tabulated from the slips each player's wins and losses on sheets called horse pads provided by Erickson. The slips were discarded when the recordings on the horse pads were completed.
Erickson's principal lieutenants were Clarence Lennon and Albert Levy. Lennon handled the money, and Levy kept the books. Each sitter turned over his completed horse pad to Levy and left before 9:30 A.M. to start the day's work at his telephone. Levy, Lennon and a few other employees worked all day at headquarters. Levy prepared "recap" sheets which showed the previous day's net result for each player, that is, whether the player won or lost. If the player
won, Lennon drew a check on an account in Lennon's name, and the check was mailed to the player. On occasions, winnings were paid in cash, delivered to the player by messenger. If the player lost, he was told by telephone the amount of his loss and was expected to mail a check to a postoffice box in Cliffside Park, or deliver cash in the amount of his losses to a messenger.
One Albert Klauser, in Erickson's employ at 452 Palisade Avenue, usually picked up the mail from the postoffice box. He was arrested on the steps of the postoffice one day in 1948, and he and Lennon were subsequently indicted and convicted on February 9, 1949 for conspiracy to violate the gambling laws. The proofs at their trial showed that one of the players was almost continuously in Lennon's debt for lost wagers and had made total payments to Lennon exceeding $100,000, State v. Lennon, 3 N.J. 337, 340 (1949). The magnitude of Erickson's operations in Cliffside Park may be readily inferred from that circumstance.
Erickson took the lease to 452 Palisade Avenue in 1945 in the name of Henry Pellino, his tax accountant doing business in New York City. He caused the legend "Henry Pellino, Accountant" to be put on the front window, but Pellino objected and it was removed and replaced by the legend "William Fernbacher, Auto Accessories." Fernbacher was one of Erickson's close associates, although listed as his chauffeur. Neither an accountant's office nor an auto accessories business was ever carried on at the place.
Erickson continued his operations at 452 and 454 Palisade Avenue after the arrest of Lennon and Klauser. Operations did not cease until about May 1, 1950 after Erickson's activities were spotlighted by the Kefauver Congressional crime investigation and newspaper publicity. Erickson and Levy were indicted for the operation on February 28, 1951, and upon entering pleas of guilty or non vult were sentenced on November 14, 1952.
Telephones at the headquarters were an absolute necessity in the operation, for contacts with players, the sitters and other bookmakers. Erickson also carried on a lay-off business,
accepting lay-off bets from other bookmakers desirous of hedging against large losses. The telephone at 452 Palisade Avenue, originally in Pellino's name, was disconnected in 1947. Thereafter arrangements were made with tenants of apartments in both buildings for the use of their telephones and also for the use of the telephone of one Brunas who operated a camera shop under the name of Home Movies in the store at 454. The tenants and Brunas turned over their monthly telephone bills to Levy, and Lennon made payment thereof. Levy had a buzzer installed in Brunas' shop which Brunas used to summon Levy from the premises at 452 when there was a call for him on the Brunas telephone.
The first count of the indictment charges Hozer with nonfeasance as to 452 Palisade Avenue, and the second count as to 454 Palisade Avenue. It is charged that at each place there was maintained between January 1, 1945 and May 1, 1950 a gaming and betting house "wherein * * * bookmaking * * * and * * * the practices of bookmaking * * * were maintained and conducted * * *," that defendant "then and there well knew" of such activity but "unlawfully did wilfully, deliberately and by design continuously neglect and omit to perform [his] * * * public duties" as Sergeant of Detectives of the Police Department "enjoined upon him by law" and intentionally failed in his ...