Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.
[94 NJSuper Page 127] Defendant William B. Puryear appeals from a conviction of unlawfully keeping a place to which
persons may resort for engaging in gambling (1962 indictment) contrary to the provisions of N.J.S. 2A:112-3, and from a conviction of knowingly possessing lottery slips (1964 indictment) in violation of N.J.S. 2A:121-3(b). The indictments were consolidated for trial since each stemmed from the same investigational episode.
The essential facts as revealed by the record are:
On November 5, 1962 one Joseph Laico, of the Newark Bureau of Industrial Hygiene and Air Pollution Control, was assigned to investigate a complaint that an odor of "coal gas" was emanating from the second floor apartment at 500 North Ninth Street. Detecting an odor at the premises and not being able to gain entry, he summoned the police emergency squad. Sergeant Sheehan and Officers Harrington, Lueddeke and Sayre responded to the call. They were followed by Patrolmen Roberts and Masterson in a police radio-patrol car. Harrington stated, "It was an odor and thinking that there may be people inside, it was our duty to go in and check it out." The officers ascended the back stairway; Lueddeke opened the door after breaking a pane of glass to unlock it from the inside, and then Harrington and Sayre, wearing gas masks, entered the premises. It is conceded that they did not have a search warrant.
No one was present in the apartment. Throughout the various rooms, the officers found a number of burning sulphur candles; they were promptly extinguished, and the place was then ventilated. Upon observing adding machines and slips which "looked suspicious," the officers conferred with Sergeant Sheehan. He, in turn, summoned detectives from the Second Precinct whose duties "were to investigate complaints of gambling, vice and liquor violations." Thereupon, Detectives Satter, Valickas, Poshywak, Donaleski and Lieutenant Manghisi were dispatched to the scene. Four of these officers gave evidence as to what was found in the apartment, viz.: three adding machines; lottery slips on the kitchen table; an open shopping bag on the living room floor containing lottery slips; pencils; pads; clothing; a hat initialed W.B.P.; prescription
bottles and a 1961 automobile driver's license bearing defendant's name taken from the top of a dresser in the bedroom; and a cigar box containing miscellaneous papers including a bank book and a "gas" bill in Puryear's name.
That same day, pursuant to directions of Lieutenant Manghisi, a warrant was obtained for the arrest of defendant who was soon located and apprehended. He had in his possession two keys to the apartment where the inculpatory evidence was located.
The State established, through a local realtor whose office managed the property, that 500 North Ninth Street was owned by Bursam Realty Co., Inc. The realtor's records disclosed that no rents were collected for the second floor apartment during the year 1962. Bursam's annual corporate reports filed with the Secretary of State for 1961 and 1963 (apparently no statement was filed for 1962) revealed that defendant was the president and a director of the company in 1961 and a director in 1963.
Puryear's testimony as to his alleged residence and the arrangements he had made with Hamilton Jones for occupancy of the apartment was uncorroborated. Defendant admitted his right to use the premises, he had keys thereto, he was an officer and director of the corporate owner of the building, no rent for the living quarters had been collected for the year 1962, and some personal effects belonging to him were in plain view in the apartment. Furthermore, he testified that it had been over three years since he last saw Jones, and that he (Puryear) had "searched high and low for him."
Defendant testified that he was a resident of 49 Delavan Avenue in Newark, where he lived with his brother Victor and his brother's wife Shirley; he had made arrangements that Hamilton Jones occupy the second floor apartment at 500 North Ninth Street, reserving to himself (defendant) the right to use the apartment "to relax and to entertain"; and that he observed "nothing unusual" during the time that Jones occupied the apartment. Defendant denied that he had anything to do with the lottery paraphernalia. Neither
Jones, defendant's brother nor his sister-in-law was produced as a witness.
Defendant's appeal, in essence, is grounded on three major contentions: (1) his motions for judgment of acquittal on each of the indictments should have been granted; (2) his pretrial motion to suppress evidence should not have been denied; and (3) the trial court erred when it failed to sustain objections to the admissibility of certain evidence and refused to hear additional proofs on the issue of the validity of the search that was made without a warrant.
The 1962 indictment, as amended, charged that the defendant "did unlawfully and knowingly keep a place * * * to which persons might resort for the purpose of gambling in any form * * *" in violation of N.J.S. 2A:112-3. The fair import of that language, applying the strict interpretation which statutes defining crimes should receive, Neeld v. Giroux, 24 N.J. 224, 229 (1957), is that the offense prohibited by the Legislature and the crime for which defendant was accused is the keeping of a place with the intent that persons should resort thereto for making bets or gambling of any kind. See State v. Clark, 137 N.J.L. 10, 13 (Sup. Ct. 1948), affirmed per curiam 137 N.J.L. 614 (E. & A. 1948), and note the language quoted therein from the opinion of Mr. Justice Dixon in State v. Ackerman, 62 N.J.L. 456, 458 (Sup. Ct. 1898).
It is plain from the testimony of the detectives that during their presence in the tenement in question defendant did not make an appearance, no phone calls were received, no one entered the premises to gamble or make bets, and the only paraphernalia found associated with gambling were adding machines, lottery slips, pads and pencils. There was no evidence that defendant's apartment ...