Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
This is an appeal from an order of the Bergen County Court, Law Division, denying defendants' motions to vacate the judgments of conviction theretofore entered and for a new trial.
Defendants were arrested on July 14, 1960 as a result of a police raid conducted on their premises at 53 Forest Street, North Arlington. The search and ensuing seizure of evidence resulted from the execution of a search warrant obtained from the Superior Court, Law Division, on July 14, upon a verified application of Detective Robert W. Green. Respondent State concedes that the application "falls short of the standards recently enunciated by our Supreme Court."
Defendants were indicted by the Bergen County Grand Jury on four counts charging violations of N.J.S. 2A:98-1 and 2A:98-2 (conspiracy), 2A:130-3 (maintaining a nuisance), 2A:121-3 (permitting a lottery on the premises), and 2A:121-3(b) (knowing possession of papers pertaining to a lottery). The trial began on May 15, 1961 and ended with defendants' conviction on May 18. The facts in the case are reported in State v. Kaiser , 74 N.J. Super. 257 (App. Div. 1962). Mention is made of the raid and the warrant at pages 264-266, of 74 N.J. Super.
On June 19, 1961 the Supreme Court of the United States decided Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961).
On June 23 defendants were sentenced. In arguing an application for a stay of execution pending appeal, defendants' then counsel Abraham Slurzberg, Esq. raised the Mapp issue and indicated that he believed Mapp should be given retroactive application.
Thereafter, defendants appealed to this court. On November 6, 1961 State v. Valentin , 36 N.J. 41 (1961), was decided. In that case, during a pre-Mapp prosecution for carrying a concealed weapon without a permit, defendant made a motion to suppress evidence on the grounds of illegal search and seizure. The motion was denied and the Appellate Division affirmed. The Supreme Court granted leave to appeal, and before argument Mapp, supra , was decided. The Supreme Court remanded the case so that evidence could be taken on the issue of the legality of the search and seizure.
Defendants' appeal was argued before this court on February 26, 1962. At that time they did not raise Mapp nor did they challenge the search, seizure, or the introduction of evidence at the trial. We affirmed the convictions on May 14, 1962. State v. Kaiser, supra.
On June 4, 1962 our Supreme Court in State v. Smith , 37 N.J. 481, 488-489 (1962), held, inter alia , that Mapp, supra , had retroactive effect on searches antedating it, and that the court would decide the Mapp issue on direct appeal from a pre-Mapp conviction in cases in which the record suggested a basis for questioning the reasonableness of the search.
On June 25, 1962 defendants filed a petition for certification with the Supreme Court. Again they did not challenge the search and seizure or the admission into evidence of the fruits thereof. The Supreme Court denied certification. 38 N.J. 310 (1962).
Defendants then moved for an order vacating the judgments of conviction, and for a new trial based on the illegal seizure of the "proofs upon which the conviction was based," and the insufficiency of the application upon which the search ...