Goldmann, Lewis and Matthews.
The Monmouth County grand jury returned a four-count indictment charging Hill with (1) keeping a place to which persons might resort for gambling and with intent that they might and should resort thereto, in violation of N.J.S.A. 2A:112-3, and (2) with keeping a place to be used for the business of lottery, contrary to N.J.S.A. 2A:121-3(c); and charging defendant Heuser with (3) bookmaking, in violation of N.J.S.A. 2A:112-3, and (4) receiving by telephone a list of numbers of a lottery, contrary to N.J.S.A. 2A:121-4(b). The jury found Hill guilty on the first count and Heuser guilty on the third and fourth counts. Defendants then moved for a new trial on the ground that the verdict was against the weight of the evidence and, further, the trial judge should have disqualified himself "by reason of his affiliation with the Prosecutors Office." The motion having been denied and defendants sentenced to State Prison terms, they appeal.
It is first argued that the search warrant used by the police was issued without probable cause. Defendants had unsuccessfully moved prior to trial to suppress the evidence and for a return of the property seized. We have examined the affidavit on the basis of which the search warrant was issued by a Superior Court judge and find that the facts and circumstances so revealed to him, in their totality established sufficient probable cause for the warrant. Specific information had been received by the State Police officer from a previously reliable informant who had personal knowledge of the bookmaking operation, and that information was independently and fully corroborated by police investigation.
It is next argued that the trial judge should have disqualified himself because his prior association with the county prosecutor's office gave the appearance of impropriety to his having anything to do with the conduct of the trial.
The matter had been mentioned in chambers before the trial began. After reviewing the file, the judge said he saw no reason why he should not continue with the case.
The facts are these: the trial judge was an assistant prosecutor from March 29 to July 29, 1968. The assistant prosecutor who tried the State's case was in the prosecutor's office at the same time. Defendants were arrested in April 1968 and the matter was referred to the prosecutor's office on the 22nd of that month. The trial judge stated on the record that he had examined the file in chambers and determined it had never crossed his desk and that he never had any knowledge of it. Significantly, the indictment here in question was returned two months after the judge left the prosecutor's office.
Apparently realizing that it is not enough to support their argument of impropriety that the judge had been a member of the prosecutor's office for a four-month period more than a year prior to the trial, defendants point to certain instances in the course of the trial tending to give credence to the alleged appearance of bias and prejudice on his part. We have not only examined each instance carefully, but considered all of them together in the total setting of the case and find that the trial judge's actions were at all times above criticism. There is nothing indicating a sense of personal involvement by the judge, or that anything he did might have prejudiced defendants' cause. Incidentally, we note that defendants never made a formal motion that the judge disqualify himself because of his prior association with the prosecutor's office.
A third ground advanced by defendants for reversing their convictions is that the trial judge was not qualified as a judge of the Superior Court and therefore could not properly preside over their trial. Our attention is called to N.J. Const. (1947), Art. VI, § VI, par. 2:
The Justices of the Supreme Court, the Judges of the Superior Court and the Judges of the County Courts shall each prior to his
appointment have been admitted to the practice of the law in this State for at least ten years.
Defendants allege that the judge was appointed an attorney-at-law of New Jersey on April 29, 1960 and was sworn into office as county district court judge on July 29, 1968; that the Chief Justice had on August 27, 1969 generally ordered that all full-time county district court judges be temporarily assigned to the Superior Court, Law Division, and that the trial was held September 8 and 9, 1969. It is therefore argued that the order implied, as a matter of law, that the constitutional qualification of the judges so assigned would be met. Accordingly, since the trial judge had not been admitted ...