On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The defendant, D'Ippolito, was indicted, tried and convicted for false swearing in contravention of N.J.S. 2 A:131-4.
A prior conviction upon the same indictment was reversed by us because of unfair and prejudicial comments made by the prosecutor in reference to the defendant's failure to
produce character witnesses. State v. D'Ippolito, 19 N.J. 540 (1955).
On retrial, the jury again returned a verdict of guilty and the defendant was sentenced to a fine of $1,000 and imprisonment for one to three years in the State Penitentiary. The latter portion of the sentence was suspended in favor of a probationary period of three years.
D'Ippolito was Chief of Police of Vineland and had served on the police force in various capacities for almost 22 years. He and Joseph Callavini, a patrolman, "raided" the Vineland office of one Lewis Levenberg, who was suspected of bookmaking. Levenberg was present at the time of the raid but denied being engaged in any illegal activity.
D'Ippolito and Callavini were in accord on finding and confiscating a morning newspaper, a racing form and a small radio. They differed, however, on whether or not there were also betting slips on Levenberg's desk of which the chief allegedly took possession, placing them in his pocket. Callavini states this to be so, while D'Ippolito emphatically denies it. This factual conflict gives rise to the issues forming the basis on which the charge rested.
Levenberg was placed under arrest, taken to police headquarters and interrogated. His protestations of innocence were constant, his insistence being he was only a bettor. He declared his wagers were placed with one Joseph Ruben, who, because of the accusation so made, was also taken into custody.
The chief of police, as the complaining witness, filed complaints against both Levenberg and Ruben charging bookmaking. Both prisoners were liberated on bail. Within several weeks they were arraigned before the Vineland magistrate, Frank Testa.
On behalf of the prosecution, D'Ippolito was the only witness to take the stand. After testifying, he evinced considerable chagrin at making the charge because he opined there was no evidence to support it. The magistrate asked rather pointedly if D'Ippolito had found in Levenberg's office "any slips or anything to indicate that there was gambling
going on or any bookmaking," and D'Ippolito replied: "No, that [a morning newspaper and a racing form] is all I found."
It was contended by the State that in giving this answer the defendant swore falsely, thus violating N.J.S. 2 A:131-4, as there were in fact betting slips found on the desk in Levenberg's office, and that the defendant took possession of them when Levenberg was taken into custody. Callavini, the police officer, so testified. The ...