Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
A jury in the Essex County Court found defendant Aiello guilty of knowingly permitting a building or premises owned by him to be used for the carrying on of the business of lottery or lottery policy, so called, in violation of N.J.S. 2A:121-3(c). He was sentenced to State Prison for a term of not less than two nor more than three years. He appeals from the judgment of conviction.
Defendant Giuliano, who was also indicted with Aiello for violating N.J.S. 2A:121-3(c) and charged in a separate indictment with the illegal possession of lottery slips, N.J.S. 2A:121-3(b), was found guilty of both charges by the jury in the consolidated trial of both defendants. Giuliano was similarly
sentenced to a prison term of two to three years for violation of N.J.S. 2A:121-3(c) and received a suspended sentence for violation of the illegal possession charge. N.J.S. 2A:121-3(b). He also appeals.
Both appeals were consolidated for oral argument. However, resolution of the Giuliano appeal can be readily resolved without recourse to other questions raised by Aiello. Hence, we dispose of Giuliano's case first.
At oral argument Giuliano's attorney announced that this defendant abandoned his appeal from the judgment of conviction based upon the illegal possession of lottery slips, N.J.S. 2A:121-3(b). Indeed, there was ample evidence before the jury to support its finding of guilt on that charge. Accordingly, that judgment of conviction is affirmed.
While the point was not raised below or in the briefs on appeal, we questioned the validity of Giuliano's conviction for violating N.J.S. 2A:121-3(c), in the light of a trial record which showed that Aiello, and not Giuliano, was admittedly the owner of the premises, 187 Fourth Street, Newark, wherein the business of lottery was allegedly carried on. We gave the prosecutor and Giuliano's attorney additional time to brief the point and this has been done.
N.J.S. 2A:121-3(c) provides:
c. Being the owner of a building or place where any business of lottery or lottery policy, so-called, is carried on knowingly, by himself or his agent, permits such ...