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State v. Vizzini

Decided: June 7, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGELO VIZZINI, DEFENDANT-APPELLANT



Conford, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Defendant appeals from convictions for permitting his premises to be used for the conduct of a business of lottery (N.J.S.A. 2A:121-3(c)) and for working for a lottery (N.J.S.A. 2A:121-3(a)), and from the sentences imposed.

The uncontradicted proofs established that State Police detectives, armed with a search warrant, entered defendant's home, descended a stairway leading to the cellar and found a doorway leading to a room. The door was locked. The police heard a voice in the room but the occupant ignored the officer's request that the door be opened. Efforts of the police to knock the door down by use of a sledge hammer were unsuccessful. The door was finally opened from the inside by defendant.

The room contained, among other things, a table and chairs, two telephones on a table and water-soluble papers. The telephone rang two or three times. Detective Castellano than attached the suction cup of an induction coil to the back of the receiver of the telephone and inserted the

other end of the induction coil into the microphone jack of a tape recorder which the police had brought with them.

During the ensuing half-hour, a number of telphone calls were received by the detective. Castellano's conversations with the callers, ten of whom placed a total of 45 bets amounting to $178.05, were recorded on the tape recorder.

When Detective Castellano testified at the trial, the court, over defendant's objection, permitted the jury to hear the tape recording of the telephone conversations between the detective and the callers.

Defendant argues that the attachment of the coil and the recording of the telephone conversations violated the federal act prohibiting the interception of telephone calls, 18 U.S.C.A. § 2511, as well as this State's "wire tap statute," N.J.S.A. 2A:146-1 (since repealed by L. 1968, c. 409, § 27), and therefore the tape recording should not have been admitted into evidence. Cf. Lee v. Florida , 392 U.S. 378, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (1968).

The argument lacks merit. What Detective Castellano did in answering the phone and in recording the conversations violated neither the federal nor the state statute.

Defendant contends that Castellano violated so much of 18 U.S.C.A. § 2511 as provides that:

(1) Except as otherwise specifically provided in this chapter any person who --

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any ...


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