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State v. Tamburello

Decided: September 27, 1961.


Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned).


This is a criminal case. The defendant-appellant was convicted of bookmaking in the Essex County Court on November 7, 1960.

In support of its case the State produced Lt. Kenny, an Essex County Prosecutor's detective, who testified that on April 14, 1959, at or about 12:55 P.M., he and several other detectives, armed with a search warrant, visited premises located at 1965 McCarter Highway, Newark, N.J. The defendant then resided in an apartment located on the third floor of said premises. Upon arriving at the third floor landing the witness met the defendant's wife who at that time had a clothes basket in her possession. The detectives obtained the apartment key from defendant's wife, unlocked the door to defendant's apartment but met resistance. Upon gaining admittance the detectives found two Armstrong publications, a white pad and slip, several blank pads in the pantry and an automatic revolver and a gravity knife in the bedroom drawer. The lieutenant's qualifications as an expert on gambling and horse race betting were admitted and he identified the writing and insignia on said white pad and slip to be the names of various race tracks and the list of names of persons who bet on various horses and the amount of money bet thereon.

This witness further testified that four pieces of 2x4 lumber were found in the hall of said apartment; that they fit exactly when placed in a certain position with one placed under the door knob of the entrance door to prevent it from being opened from the outside.

Jerome DeStephano, an investigator working in the Essex County Prosecutor's Office, accompanied Lt. Kenny on this raid and, in addition to corroborating Lt. Kenny's testimony, testified that he found other account slips in the defendant's desk drawer. He further testified that while in the apartment he heard the telephone ring on four occasions and answered it. This witness was asked by the State to divulge said conversations. The defendant objected to these as being contrary to N.J.S. 2A:146-1. The judge overruled the defendant's objection and permitted the investigator to testify to the conversations which were as follows:

"The caller identified himself as Shoes, asked for Johnny and then said, 'Laurel, 2-5, $10.00, 10DD; Lincoln, 11-5, 10DD.'" This call was received at 1.38 P.M.

At 2.10 P.M. the witness received another call from presumably the same party, who again identified himself as Shoes, asked for Johnny and inquired as to the bet he had placed at 1.38. The witness responded "2 & 5, 11 & 5 $10. DD" and the party said "O.K." and hung up.

At 1.43 the witness received a call from a party who asked for Johnny and identified himself as Pete. The witness responded "Go ahead" and the party said "Fourth at Gulfstream, Star O'Lee, 7 at Gulfstream, Little Fritz 2, 4 reverse."

The witness also received a phone call from a party who identified himself as Harry and asked for Johnny. The witness said "Go ahead" and the witness thereafter did not hear anything.

The defense called the defendant's wife. She testified that her husband came home from work early that day for the purpose of taking their son to the doctor; that she left the apartment to do some laundry when she met four men in the hall who shoved her and ripped her dress and asked for the key to the apartment.

The defense then offered one Joseph Simmons as a witness. He stated that the defendant was employed by him on April 15, 1959 as a driver; that the defendant worked daily from 8:30 to 4:00 or 4:30 and was paid by check weekly.

Thereafter, one Zippo testified on behalf of the defense. He testified he had known the defendant for 20 years and

did business with him, which consisted of the selling of certain commodities to the defendant who would in turn solicit separate individuals to whom he would resell these commodities.

The defendant's 14-year-old son testified he was home from school that day so his father could take him to the doctor. He explained that the pads found by the detectives were used by him for his school work. In regard to the three 2x4's found in the apartment, the defendant's son testified that he used two of them for his electric train platform and the third was used to bar the door in addition to the locks on the door.

The defendant denied being a bookmaker. He testified that the pads were used by his son; that he himself was a truck driver and worked from 8:30 to 4:30, and that, in addition, he sold commodities to various individuals. The defendant explained he stayed home from work on the day of said raid so he could take his son to the doctor. While in the apartment the four detectives broke in without identifying themselves. Once they had obtained admittance they searched the apartment and found a gun, a knife and an Armstrong & Turf Flash that he had purchased. He further testified that the long 2x4 found in the apartment was used by his wife when he was not at home.


The defendant urges that the admission into evidence of the telephone ...

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