Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
Defendant was found guilty by a jury of bookmaking contrary to N.J.S.A. 2A:112-3. He was sentenced to a term of one to two years in New Jersey State Prison and fined $1000. He timely appeals.
Defendant contends that (1) the trial court erred in failing to order the State to produce the name of a man who assisted the police by calling a certain telephone number, in that disclosure of this person's identity was essential to the fair determination of the case, and (2) the State's proofs failed to establish a prima facie case and the trial court therefore erred in submitting the case to the jury (not raised below).
In June 1969 Detective John Leck of the State Police had been assigned to conduct an investigation of gambling activities in and about Penn Station in Newark. As a result
of information he had received the detective focused his attention on the Penn Plaza Transfer Company. (Although not brought out at the trial, Detective Leck had received evidence from a "reliable informant," whose name was not disclosed, that defendant was taking bets over telephone number 622-6280, the number of the Transfer Company located at Penn Station.)
On June 2, 1969 Detective Leck was told at the Station's information desk that the Transfer Company was located at the baggage room. He stationed himself in a phone booth located opposite the baggage room and three times called the above number listed for Penn Plaza Transfer Company. Each time, as the detective noted, the phone in the baggage room rang and he hung up before anyone could answer.
On June 4 Detective Leck returned with a man whose identity was not disclosed. With the receiver held so that the detective could listen, the other man dialed 622-6280. When the phone was answered the caller asked, "Is this Joe?" He received an affirmative response. The listening detective heard this other man place a $10 bet with "Joe." This fact was within the detective's personal knowledge and not the result of information conveyed to him.
On the following day Detective Leck returned to the booth with a second man. He watched this man begin to dial the number 622-6280 and then walked down the hall to a window of the baggage room. He heard the phone ring and saw defendant pick up the receiver. Detective Leck stayed at that location and observed the defendant answer the phone four times in a ten-minute period. He then went back down the hallway to survey the front of the room. He observed a man enter the baggage room and heard him ask for "Joe." This man was taken to defendant, who greeted him. Detective Leck saw him give defendant a slip of paper and some money.
At approximately 1:30 P.M. on June 11, 1969 a Detective Kitzler, along with other members of the State Police, went to the baggage room to execute a search warrant issued by
Judge Kingfield. (The regularity of that warrant, the basis for its issuance and the execution of the warrant are not challenged.) The police entered the baggage room through the large window utilized for claiming packages. They crossed the large room and proceeded to an adjoining office. Detective Kitzler observed defendant in the office talking on the telephone. At that precise time defendant was inquiring of the party on the other end, "Have I ever taken any action from you before?" Defendant then saw the detective and, after being shown the detective's credentials, he hung up. The number of the phone on which defendant was talking was 622-6280. Though the phone was of the locked type, defendant was then in possession of a key for the lock. In defendant's hand were a pen and a quantity of small pieces of paper with a date stamped on them and the word "parlance." They were dated May 15.
Five slips of paper were found in a wastepaper basket in the baggage room. These were identified at trial as horse betting slips; ...