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State v. Fiorello

Decided: November 6, 1961.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ANTHONY JOSEPH FIORELLO, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The defendant was found guilty of bookmaking by a Somerset County jury and, after the denial of his motion for a new trial, was duly sentenced by Judge Halpern. The Appellate Division reversed and remanded the cause for further proceedings. We certified on the State's application. 34 N.J. 472 (1961).

On January 9, 1960, Investigator Martin and Detective Karkowski of the New Jersey State Police went to the defendant's gasoline service station in North Plainfield. They had a search warrant and made a search of the premises. In the course thereof, Investigator Martin searched the defendant and asked him to place everything in his pockets on a nearby cigarette machine. This was apparently done and the investigator testified that "there was nothing left" in the defendant's pockets. Included among the items from the defendant's pockets were two slips of paper which were marked as Exhibits S-1 and S-2. They were in the defendant's handwriting and contained lists of numbers preceded by letters. While the search of the premises was going on the telephone rang on two occasions and Investigator Martin answered the calls. The first caller asked for Tony and when he was told that Tony was not available, he said that if he

could not talk to Tony he did not want to talk to anyone. The second call, more than an hour later, was from a person who identified himself as Freddie, the brother-in-law of Tony. He said that if he could not talk to Tony, he did not want to talk to anyone. The defendant at the time told the investigator that he had no brother-in-law named Freddie.

The investigator testified that after he had answered the first telephone call and while he had his back to the defendant, he heard a crackling of paper. He turned around and saw that the defendant had his hands folded behind his back. He then "grabbed" the defendant's left hand and when the defendant's hand was opened "there was a slip of paper in his palm"; this was received in evidence and marked as Exhibit S-3. The slip was in the defendant's handwriting and contained information which the defendant said he had obtained from the Newark Star Ledger. When the investigator asked the defendant what the information on the slip represented, the defendant stated that the list of names on the slip represented teams, the numbers next to them represented point spreads and the next notations were the times that the games were to be played. When the investigator asked the defendant why he had not put S-3 on the cigarette machine along with S-1 and S-2, the defendant said that he "didn't know it was in his pocket at that time." On cross-examination the investigator repeated his earlier testimony that he had searched the defendant's pockets thoroughly and that S-3 was not there at the time. When the defendant's wallet was searched it was found to contain $164 in bills and $1 in change.

Detective Karkowski testified that since 1954 he had conducted numerous gambling investigations for the State Police and was familiar with the records, symbols and writings used in connection with bookmaking. He stated that Exhibits S-1 and S-2 could represent tally or record sheets and that Exhibit S-3 could represent "what is commonly known as a line sheet." He described a line sheet as a slip of paper or a prepared form which gives the names of "the

favorite teams or any teams playing in sporting contests" and "usually the names are followed by points which are the points that that particular team is favorite to win the contest by." When asked by counsel whether S-3 could represent anything other than a line sheet he said, "In my opinion, it's nothing but a line sheet with the added feature of having apparent time records made for each contest. That is the time those games were scheduled to be played, to begin to be played." In response to an inquiry from the court, the detective reasserted that in his opinion S-3 was a line sheet and could not represent anything else but a line sheet. The detective testified that he examined S-3 and checked it against the Newark Star Ledger; he found that the information in the Ledger did not correspond with the information on S-3 and that the newspaper did not carry most of the starting times. In response to an inquiry from the court as to whether S-1 and S-2 could represent anything other than tally or record sheets, the detective testified that they resembled tally sheets or records of gambling activities which he had seen in the past, but they could represent other records. When he was asked whether they could represent other records which have nothing at all to do with betting, he said, "It's a possibility, yes, sir."

After Investigator Martin and Detective Karkowski had testified, the State closed its case. Thereupon the defendant moved for acquittal of the offenses charged in the two counts set forth in the indictment. The court granted the defendant's motion as to the second count which charged the defendant with keeping a place to which persons might resort for gambling. It denied the motion as to the first count which charged that the defendant had, on January 9, 1960 and on other days, conducted the practice commonly known as bookmaking in violation of N.J.S. 2A:112-3. On his own case the defendant testified that he was not engaged in the practice of bookmaking. He stated on direct examination that the items listed on S-3 were "basketball odds" which he had taken from the newspaper and that he "was

going to see one of these games at either the Madison Square Garden or at Philadelphia." However, on cross-examination it was brought out that of the five games listed on S-3, one was played in Illinois, another in Ohio, another in Missouri, and another in the South. With respect to the fifth game, the evidence was silent as to where it was actually played, but there was proof that it could not have been played at Madison Square Garden. In response to an inquiry on direct examination as to what the figures on S-2 represented, the defendant testified that they were "figures of various things that I had taken down." He stated that he did not recall all of them but that he knew that "one here, S-67, could pertain to -- I owed somebody $67.00, the S & H Green Stamps, and I know that B-95 was money that I had given to somebody and I kept a notation of it, and things like that." However, on cross-examination he stated that he could not tell what the "B" stood for. The defendant testified that S-1 was merely a duplication of S-2 but on cross-examination he acknowledged that only one of the six numbers on the exhibits was the same. The many contradictions in the defendant's testimony indicated his lack of credibility and, in addition, he admitted that he had been convicted in Union County in 1949 for bookmaking and maintaining premises for gambling purposes, and in Somerset County in 1957 for bookmaking and keeping a gambling resort. At the close of all of the testimony the court delivered its charge and after due deliberation the jury returned its verdict of guilty.

In the Appellate Division the defendant attacked his conviction on various grounds which were passed upon in the court's opinion. It summarily rejected the defendant's contention that while N.J.S. 2A:112-3 prohibits the practice of bookmaking on horse races, it does not prohibit the practice of bookmaking on other contests such as basketball games. The Appellate Division's ruling on this issue was clearly ...


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