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State v. Juliano

Decided: September 28, 1967.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD J. JULIANO AND PETER A. MEROLA, DEFENDANTS-APPELLANTS



Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Defendants Donald J. Juliano and Peter A. Merola appeal from their convictions for violation of N.J.S. 2A:121-3 (possession of lottery slips) and N.J.S. 2A:112-3 (bookmaking).

The Essex County prosecutor's office received an anonymous telephone call to the effect that horse racing bets were being received from a certain phone number which was traced to the apartment of one Ida Goldberg at 425 Mt. Prospect Avenue, Newark. On June 21, 1965 Detective Richard Roberts of the prosecutor's office proceeded to that address and while standing in the hallway outside the Goldberg apartment for about ten minutes heard a male voice apparently speaking over the telephone. In his subsequent affidavit to obtain a search warrant he stated that:

"I repeatedly heard numbers mentioned, such as 1 and 2, 5th and 7th, That's $2.00? At one time I heard him say, That's a $60. parley [ sic ] right? I also heard the rattling of papers."

Armed with a search warrant, Roberts and a Lieutenant Dougherty proceeded to the premises on the following day. They sought out the wife of the superintendent of the building

and prevailed upon her to ring the bell of the Goldberg apartment and say that there was a package for Mrs. Goldberg. When she did so the door was opened by Merola and Dougherty and Roberts pushed it open further and entered the apartment. Dougherty had the search warrant in his hand and identified himself as he entered. They were followed by a number of additional officers.

Upon entering the apartment they observed Juliano alongside a table upon which were found a telephone, two Armstrong Daily "scratch sheets," sheets of paper containing writings identified as horse racing, lottery and baseball bets and $25 in cash. The telephone was equipped with a "soft chime," a device which, according to the police testimony, was favored by bookmakers because its ring could not be heard outside its immediate location. On a closet shelf the officers found a canvas bag containing Armstrong Daily editions for seven days prior to the day of the search, each of which contained slips representing horse and baseball bets for that day. While in the apartment Roberts answered several calls from would-be betting patrons, some of whom asked for "Don."

In addition to being indicted for possession of lottery slips, defendants were indicted on 16 separate counts for bookmaking, one count for each of the eight days on which there was evidence of horse racing bets and one count for each day on which there was evidence of baseball bets.

Defendants' motion to suppress the evidence seized in the raid on the ground that the search of the premises was in violation of their Fourth Amendment rights was denied, as was their motion for leave to appeal from such denial. At the trial the evidence seized was admitted over their objection.

Defendants first urge that the search warrant was defective by reason of the insufficiency of Roberts' supporting affidavit. We disagree. The verifying observations made by Roberts following receipt of the tip by the prosecutor's office constituted sufficient probable cause for the issuance of the search warrant. Cf. State v. Contursi, 44 N.J. 422, 430-432

(1965). The conversation which he overheard was indicative of illegal gambling in the apartment. State v. O'Donnell, 8 N.J. Super. 13 (App. Div. 1950). The cases cited by the ...


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