Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D. Gaulkin, S.j.a.d. (dissenting in part).
[104 NJSuper Page 579] Defendant was found guilty on 12 counts of an indictment which charged him with working for a lottery business in violation of N.J.S. 2 A:121-3(a).
He was sentenced to a prison term of 1-2 years on the first count and the same sentence was imposed on the remaining 11 counts to run concurrently. He appeals.
The State's evidence showed that on 12 days between January 9 and February 23, 1967 Raymond Feldherr, a member of the New Jersey State Police, placed lottery bets with the defendant at his grocery store, known as Fanny's Market, which is located in Jackson Township. On March 6, 1967 police officers, armed with a search warrant, raided the market and seized a lottery slip containing two numbers bets which was found on a shelf behind a counter. The defendant was not present and his wife Epifania was in charge of the store. Velazquez admitted that Feldherr had been in his store about once a week between January 6 and March 6, but denied he had ever accepted lottery bets from the officer.
Defendant's first point is that the court erred in denying his motion for an acquittal at the close of the State's case on the ground of entrapment and, in the alternative, by failing to charge the jury on the law of entrapment. The record clearly indicates that there was no evidence of entrapment by the police. Mere solicitations by officers posing as private citizens and resulting in the acceptance of bets have repeatedly been held not to give rise to any entrapment issues. State v. Dennis, 43 N.J. 418, 425 (1964). Regarding the court's failure to instruct the jury on the law of entrapment the short answer is that no request to so charge was submitted and no objection was made to the court's failure to do so. We find no plain error. Ibid., at pp. 424-425.
We find no merit in the contention that the verdict was the result of mistake and contrary to the weight of the evidence. There was ample evidence to support the jury's finding that the defendant was engaged in the lottery business in violation of the statute.
Defendant also claims that the court erred in failing to instruct the jury that if it found defendant's testimony
not to be credible, the State still had the burden of proving his guilt beyond a reasonable doubt. Our examination of the charge indicates that the court adequately instructed the jury on the subject of credibility of the witnesses and the State's burden of proof. We find no error.
It is also argued that the verdict of the jury was defective because it appeared to be the result of a compromise. We find no support for this contention in the record.
Defendant's final argument is that the sentencing judge (one other than the trial judge) indicated that he had not considered mitigating factors when he sentenced the defendant because he said he was "a little nearsighted as far as our gambling statutes are concerned." We do not construe this remark to imply that the sentencing judge did not properly exercise his discretion in determining the sentence to be imposed.
GAULKIN, S.J.A.D. (dissenting in part). I agree with the majority, except that it seems to me that ...