Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal by defendants from their convictions, following a jury trial, of violating the lottery laws of this State and for conspiracy. All 19 defendants were convicted under an indictment charging them with conspiracy to operate a lottery and violate the laws pertaining to the business of lottery between August 5, 1966 and February 3, 1967 in Newark, Bloomfield, Belleville, East Orange and North Arlington, contrary to the provisions of N.J.S.A. 2A:98-1. In addition thereto, 12 of the 19 were convicted on one or more indictments charging them with violations of either N.J.S.A. 2A:112-3 (keeping a place to which persons might resort for gambling in any form) or N.J.S.A. 2A:121-3 (possession of lottery paraphernalia), or both. All of the indictments were consolidated for the purpose of trial.
The evidence presented by the State clearly established that during the period referred to in the conspiracy indictment defendants were engaged in a massive lottery business. The operation terminated on February 2 and 3, 1967 when special agents of the Intelligence Division of the Internal Revenue Service conducted a series of raids at places used as lottery "offices" or meeting places of the conspirators.
At the trial federal agents testified to the activities of defendants during the many weeks they were under surveillance. The testimony revealed that some of the defendants would pick up paper bags (allegedly containing lottery slips and money received from bettors) daily, at various locations or "drops," and take them to one of several lottery offices used in the operation. The bags often were transferred from one car to another, and the cars would be driven over circuitous
routes to avoid detection before the betting records and money were delivered to the lottery office.
The agents also testified of their surveillance of some of the defendants in the vicinity of the Ben Thomas Luncheonette and the Altruist Club, both located in Newark, which served as bases of operation and meeting places for the conspirators. The State presented testimony of the details of the raids conducted by the federal officers and introduced in evidence the lottery paraphernalia seized, including lottery slips, numerous adding machines, pads, envelopes, coin wrappers, "cut cards," and cash.
Federal agent Dominic Germano served as an undercover agent during the six-month period before the raids and arrests ended the lottery operation. Pretending to be a waiter employed at a Catskill Mountain resort, he became an habitue of the Ben Thomas Luncheonette, a favorite meeting place for several of the conspirators, which was operated by the defendant Thomas. He testified that he visited the luncheonette on 68 days, often placed bets with defendant Cipriano, and gradually worked his way into the confidence of both Cipriano and Thomas. During his visits he overheard conversations between several of the defendants that referred to the lottery operation. On 42 days he saw defendant Ruggerio Boiardo meet with defendants Andrew Gerardo, Toby Boyd, Angelo Sica, Louis DiBenedetto and others unknown to him, singly or in groups, inside the luncheonette or in the immediate vicinity thereof. On various occasions he witnessed wrapped packages, inferentially containing money, being passed directly to Boiardo or being placed in Boiardo's car by one of the defendants. Agent Germano often drove Cipriano to a service station in Newark which Cipriano used as a base of operation for his lottery book. He said that after he became well known to Thomas and Cipriano they disclosed details of the organized lottery business which was being conducted.
Thomas told Germano that "Boiardo was the boss of the eastern seaboard and that nobody makes a move without his
approval," and that Gerardo, DiBenedetto, Angelo Sica and a man named Farina were his lieutenants. Cipriano was more talkative. He too said Boiardo was the "chief" or "boss," and was "the biggest man in the rackets in New Jersey and controls all New Jersey [and] part of New York." He described the organization as being made up of "soldiers, lieutenants and captains" headed by Boiardo; that it had over 400 runners plus pickup men and controllers. He said the "chain of command" was Boiardo, Farina, Gerardo and Boyd, in that order; that Gerardo controlled all the lottery offices and prepared the envelopes for money to be paid out for "hits" (successful plays); that Boyd ran one of the lottery offices; and that DiBenedetto was active in the organization. Cipriano further told Germano that Angelo Sica operated his own book and had over 20 men working for him, was more or less independent but needed Boiardo's permission to operate, and probably paid for the privilege. He also said the "chief" had the power to "get all books together on odds and cut numbers" and insisted that all "hits" be paid off promptly.
None of the defendants testified at the trial or called witnesses in their defense. All defendants except Nunzio Sica and Cesar Cerato concede on this appeal that the evidence presented by the State was sufficient, if believed, to establish the fact that during the period covered by the indictment a conspiracy to operate a lottery and to violate N.J.S.A. 2A:121-3 and N.J.S.A. 2A:112-3 existed. Moreover, all of the defendants with the exception of Nunzio Sica, Joseph Sarrecchia and Benjamin Thomas, who were convicted of one or more of the indictments charging them with violations of the substantive crimes, viz., N.J.S.A. 2A:112-3 and N.J.S.A. 2A:121-3, concede on this appeal that there was sufficient evidence as a result of the searches and seizures which followed the raids and arrests on February 2, 1967 to establish their guilt of the crimes charged.
THE APPEAL OF RUGGERIO BOIARDO
Although Boiardo concedes the State's proofs established that a conspiracy existed he asserts the evidence did not show that he was a part of it. He raises seven points in his brief as grounds for a reversal of his conviction.
Boiardo first contends that the trial court erred in permitting Germano to testify as to statements made to him by Thomas and Cipriano concerning Boiardo's connection with the conspiracy. The statements were admitted by the court under the traditional hearsay exception for statements made in furtherance of the conspiracy. Evidence Rule 63 (9)(b). The rule provides:
A statement which would be admissible if made by the declarant at the hearing is admissible against a party if * * * (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.
Boiardo asserts that the admission of such testimony constituted reversible error because (A) it violated his Sixth Amendment right to be confronted with witnesses against him, (B) there was no independent proof that he was a member of the conspiracy, and (C) the statements were not made in furtherance of the conspiracy.
Defendant argues that his constitutional right of confrontation was violated because Thomas and Cipriano elected not to take the stand and testify in their own defense and he therefore was unable to cross-examine them as to the truth of such statements. He relies on Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476
(1968), and Evans v. Dutton , 400 F.2d 826 (5 Cir. 1968), probable jurisdiction noted, 393 U.S. 1079, 89 S. Ct. 862, 21 L. Ed. 2d 770 (1969), appeal pending 397 U.S. 1060, 90 S. Ct. 1494, 25 L. Ed. 682 (1970). Bruton does not support Boiardo's position. The court there stated that no recognized exception to the hearsay rule was involved in that case and said, "We intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause." 391 U.S. 128, 88 S. Ct. 1623, n. 3. Evans v. Dutton is inapposite on its facts because it involved the admission of a hearsay declaration of a co-conspirator made more than a year after the crime was committed. 400 F.2d at 831.
Boiardo would have us equate the right of confrontation with the opportunity for cross-examination. To adopt such a rigid formula would altogether eliminate the use of much hearsay evidence permitted in criminal trials at a time when the judicial trend has been toward a salutary liberalization of hearsay exceptions.
Hearsay exceptions that dispense altogether with the opportunity for cross-examination have long been accepted and utilized in criminal trials without unduly compromising the accused's ability to present a defense. See Mattox v. United States , 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892) and State v. O'Leary , 25 N.J. 104, 113 (1957) (dying declarations); State v. Reddick , 53 N.J. 66, 68 (1968) (business records). Moreover, the particular hearsay exception challenged here has been considered by the United States Supreme Court and our State courts without having been found constitutionally infirm. Lutwak v. United States , 344 U.S. 604, 617-619, 73 S. Ct. 481, 97 L. Ed. 593 (1953); State v. Carbone , 10 N.J. 329, 340 (1952); State v. Yedwab , 43 N.J. Super. 367 (App. Div. 1957), certif. den. 23 N.J. 550 (1957); State v. Cavanna , 70 N.J. Super. 176 (App. Div. 1961), certif. den. 36 N.J. 298 (1962). We cannot be unmindful of this history of judicial approval. Cf. California v. Green , 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489, decided June 23, 1970.
There being no authoritative decision requiring us to find that the Confrontation Clause invalidates our Evidence Rule 63(9)(b), we decline to so hold. We conclude that the introduction in evidence of hearsay statements made by the co-defendants in furtherance of a conspiracy in which Boiardo was a participant did not violate his Sixth Amendment right to be confronted by witnesses against him.
Boiardo's contention that there was no evidence, independent of the co-conspirators' statements to Germano, which showed that he participated in the conspiracy, is totally without merit. The evidence clearly indicated that the Ben Thomas Luncheonette was a base of operation for the conspirators. Lottery bets were taken there daily by some of the defendants between 9 and 11 A.M. Boiardo was a regular visitor during those hours where he met and spoke with Boyd, DiBenedetto, Gerardo, Angelo Sica, Cerato, and others. He was often referred to by the conspirators as the "boss." Boyd, undisputably a key figure in the conspiracy, often drove to Boiardo's home in Livingston between 8 and 8:30 A.M. On one occasion Germano heard Boiardo tell Boyd to pick him up at his home at 8 A.M. the following morning. On another occasion Boyd told Boiardo, "I finish my run at 5:30." He also heard Boiardo direct Cipriano to make a telephone call for him, and Gerardo inform Boiardo, "They're going to give you the raid treatment * * * the heat is on."
On a number of occasions Germano observed conspirators hand Boiardo slips of papers although Germano was unable to see what they contained. On approximately 20 separate days conspirators placed bags. boxes, and packages in Boiardo's automobile. While Germano and other agents who had the luncheonette under surveillance were unable to determine the contents thereof they were of the type generally found in a lottery operation. When Boiardo was arrested on February 3, 1967 while driving away from the luncheonette
a search of his person produced a paper bag from one of his pockets which contained six packets of money, wrapped separately, totaling $2,036. The paper bag was similar in size and shape to one which had been placed in his car earlier that day by one of the conspirators. In another of Boiardo's pockets the agents found a roll of bills wrapped in a rubber band containing $478.
The existence of a conspiracy and a defendant's participation in it must be shown by "proof aliunde " before statements made by co-conspirators out of his presence are admissible against him. Glasser v. United States , 315 U.S. 60, 74-75, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Plata , 361 F.2d 958, 961 (7 Cir. 1966), cert. denied, 385 U.S. 841, 87 S. Ct. 94, 17 L. Ed. 2d 74 (1966). We are satisfied that the evidence adduced by the State in this case, excluding the damaging declarations of Thomas and Cipriano, was sufficient to prove that Boiardo was not only a participant in but the leader of the conspiracy.
Boiardo's argument that the statements made by Cipriano and Thomas to Germano were inadmissible because they were not made in furtherance of the conspiracy is also without merit. The basis of his argument is that Germano was a stranger to the conspiracy and not considered by either Cipriano or Thomas as one who might be of help to it, that neither conspirator could have thought that his declarations to Germano advanced the goals of the conspiracy, and that at best their statements were merely gossip. We do not agree.
The life blood of a lottery operation is the regular small bettor, and Germano became such a bettor. We think it was inferable by a jury that the statements were made to Germano to instill in him confidence in the lottery operation and its businesslike efficiency so that he would continue to place his bets with the organization. He ...