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State v. Dye

Decided: June 5, 1972.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENTLEY ANDREW DYE, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the court was delivered by Francis, J.

Francis

[60 NJ Page 522] Defendant Dye was convicted of bookmaking. The evidence from which the conviction resulted arose primarily from a wiretap of a telephone on the premises where Dye was employed. At the trial he challenged the admissibility of the wiretap product alleging that it was obtained in violation of the New Jersey Wiretapping & Electronic Surveillance Act, N.J.S.A. 2A:156A-1 et seq., and of the Fourth Amendment of the United States Constitution. After sentence an appeal was taken to the Appellate Division, which we certified prior to argument there.

I

For some years prior to April 1969 Dye was an employee of the Middlebrook Lounge which operated a restaurant, bar and liquor store on U.S. Highway 22, Bridgewater Township, Somerset County, New Jersey. His working hours were from 8 A.M. to 4:30 P.M. A public pay telephone was located on the east wall of the liquor sales portion of the premises. It was this phone which was tapped pursuant to an order of the Superior Court, granted on sworn application of two detectives of the Somerset County Prosecutor's Office, who sought the order upon the written authorization of the prosecutor.

The supporting affidavit of Lieutenant Detective Karkowski of the Somerset County Prosecutor's Office asserted that he had been charged with conducting gambling investigations for nine years, and had qualified as an expert witness in such matters in Somerset County courts on 16 occasions.

On November 15, 1968 he had been advised by Lieutenant Silvio Donatelli of the Middlesex County Prosecutor's Office that he (Donatelli) had good reason to believe a location in Middlesex County was being used for bookmaking purposes. He advised also that investigation revealed telephone toll records showing calls placed from the suspect location to telephone number 725-9743. On checking this number Karkowski found it to be listed for the Middlebrook Liquor Store, 966 U.S. Highway 22, Bridgewater Township. Further investigation at that time was non-productive.

On February 24, 1969 Karkowski was in the Somerset Diner, in North Plainfield, at about 10:30 A.M. While waiting to use the public telephone there (the location of which he described), he saw an unknown male use the telephone. The caller dialed Operator, asked for 725-9743, and when connected said, "Is Bentley there?" After a pause the caller said, "Paul, Bentley. Can you get some in for me today?" Following another pause, the conversation continued, and the

caller placed several bets on horses racing that day at Hialeah in Florida. After a pause, the caller said, "O.K., Bentley, see you later," and then returned to the dining area. Shortly thereafter, Karkowski looked over the dining area but could not locate the caller. A check of the Newark Star-Ledger that day revealed that the horses mentioned by the caller were scheduled to run that afternoon at Hialeah. Karkowski then rechecked the telephone number and found it listed as set forth above. He learned also the one employee of the liquor store was named Bentley Dye.

Pursuing this lead further, Karkowski instructed a confidential and reliable source of information, who had participated in other gambling investigations, to attempt to place bets with Dye. Subsequently, the informant reported he had been unsuccessful, adding his feeling that Dye would not accept bets from strangers.

Karkowski then requested Detective James Hoffman of his office to assist in the investigation. On April 15, 1969 Hoffman went to the Middlebrook Liquor Store, posing as a fisherman. He saw Dye make frequent references to the Morning Telegraph and the sports pages of the Daily News. At times while doing so Dye looked at notations on a slip of white paper which he took from his shirt pocket. In addition Dye had some guarded conversations with customers and Anthony Esposito, the owner of the establishment, after Esposito appeared to have looked over the horse racing pages of the Daily News. Around 11:45 A.M. Dye went to the liquor store portion of the premises and Hoffman entered the men's room near the wall public telephone. Hoffman heard a coin drop and the dial used, following which he heard Dye recite at least 10 horse race bets on an entry in the eighth race at Gulfstream. Hoffman reentered the liquor store and, while Dye was still on the telephone, made use of the cigarette machine there. At that time he noticed Dye consult a piece of white paper taken from his shirt pocket.

Karkowski in his affidavit expressed his belief that Dye was engaged in bookmaking and would continue to use the telephone at Middlebrook for that purpose between the hours of 10 A.M. and 3 P.M. daily, Monday to Saturday, inclusive. He said also that there was a special need for interception of these telephone conversations because the telephone being a public as well as the private business phone of the Middlebrook Liquor Store, no toll records were maintained, and normal investigations were not being and probably would not be sufficiently productive. He, therefore, expressed the opinion that interception was necessary for a period of time in order to establish the pattern of the bookmaking operation, and so as to aid in identification of the parties involved in the conspiracy to carry on the criminal activity.

Detective Hoffman joined in the affidavit to corroborate his described participation in the investigation. He was to install and maintain the electronic equipment. By way of qualification to engage in the wiretap, he swore he had undergone a week of specialized training in the use of such equipment and in the techniques required for its proper installation. The instruction had been given to him by a named expert in the field of telephone conversation interception.

After considering the affidavits, making the findings required by section 12 of the Act, N.J.S.A. 2A:156A-12 and incorporating them in the order, on April 29, 1969 the Law Division Judge authorized Hoffman to "intercept the wire communications of Bentley Dye relating to the offenses of Bookmaking and Conspiracy from telephone facility number 201-725-9743 listed to Middlebrook Liquor Store * * *" between the hours of 10 A.M. and 3 P.M. daily, Monday to Saturday, inclusive, for a period of 30 days. In accordance with section 12 the order directed that such "interception begin and end as soon as practicable, * * * and be conducted in such a way as to minimize or eliminate the interception of such communications other than the type described."

II

Defendant has repeated certain objections made below to the order which may be considered at this point. He charges insufficiency of the supporting affidavits, alleging lack of sufficient "showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed * * *" as required by N.J.S.A. 2A:156A-9(c)(6), 10(c). It is alleged also that since the telephone involved is a public facility the order is illegal because the affidavits failed to show a "special need" for the wiretap of a public phone as required by N.J.S.A. 2A:156A-11; and in any event there was no proof to warrant fixing the daily period of the interception as between 10 A.M. and 3 P.M. We agree with the trial court that these contentions lack merit.

The objections may be considered together. As noted above efforts by a reliable undercover agent to place bets with defendant over the telephone failed. The undercover surveillance engaged in by Detective Hoffman had only limited success, aside from providing some corroboration of the strong suspicion that Dye was engaged in bookmaking. Obviously, it was not practical to have an agent on the Middlebrook premises and near the public telephone hanging on a wall and straining to hear Dye's conversation every time he made or received a call. Moreover, assuming that enough had been heard to arrest Dye for gambling activity, the information which made that action possible was not sufficient to involve and identify his co-conspirators. Obviously, their apprehension was more important from the standpoint of law enforcement. The offense was a continuing one, and the telephone was playing an essential part in its success. In our view the facts contained in the affidavit sufficiently indicated that normal police investigative methods would not serve the purpose, and that there was a special need to tap the particular telephone, which was a partly public and partly private instrument. See, State v. Christy, 112 N.J. Super. 48, 65

(Law Div. 1970). Accordingly, the Law Division judge properly exercised his discretion in granting the requested order.

The criticism of the daily time period allowed for the tap, namely, between 10 A.M. and 3 P.M. except for Sundays, is likewise without merit. Lieutenant Karkowski qualified as an expert in gambling operations and it was his opinion that Dye's telephone calls relating to bets probably would be made daily between those hours. Additionally, the two very suspicious telephone calls referred to in the affidavit were made during that time interval. And it was clear that Dye probably would be on the premises between 10 A.M. and 3 P.M. As was pointed out in State v. Christy, supra, 112 N.J. Super, at 77-78, there is no express requirement in the statute that the hours of interception be specified in the order. The matter must rest in the reasonable discretion of the court. No abuse is discernible under the circumstances shown here.

Detective Hoffman's qualifications to execute the wiretap order are challenged. The statute conditions issuance of such an order upon a finding that the person authorized to execute the interception is qualified by training and experience to do so. N.J.S.A. 2A:156A-10(e). It was shown that Hoffman received a specialized one week training course from a named expert in the installation and operation of wiretapping equipment; also that he had been instructed in the procedures required by the New Jersey Wiretapping and Electronic Surveillance Act for the control of such an installation and the preservation of the fruits thereof. There is nothing in the record to demonstrate as a matter of law that his training did not sufficiently educate him to perform the task.

Decision as to whether Hoffman was qualified to perform the wiretap was a matter for the discretion of the Law Division judge. An appellate court will not interfere with his resolution of the issue unless it was so clearly the result of an unreasonable evaluation of the facts as to constitute

a mistaken use of discretion. Cf. Carbone v. Warburton, 22 N.J. Super. 5, 14 (App. Div. 1952), aff'd 11 N.J. 418 (1953). We see no such mistake here.

III

After the wiretap order was obtained, and the necessary arrangements made with the telephone company, Detective Hoffman installed what was described as the simplest and most direct form of tap on the Middlebrook Lounge pay telephone, designated 725-9743. A wire was then extended from the telephone pole in front of the Lounge across Route 22 into a room on the second floor of the Howard Johnson Restaurant, where it was connected to a tape recorder. An earpiece was attached to the recorder so that all incoming and outgoing calls could be heard and recorded. The sufficiency of the tap was tested and proved by dialing the Lounge number and carrying on a conversation with the person who answered there. Thereafter, beginning on April 30, 1969 and continuing until May 24, 1969 (the period covered by the bookmaking indictment), all incoming and outgoing calls occurring between 10 A.M. and 3 P.M., six days a week, excluding Sunday, were recorded. During that time Detective Hoffman remained at his listening post in the room. From his position he could observe the Lounge and he could see Dye much of the time. However, he could not see the tapped phone, so when Dye used it he was out of view. At times Hoffman was able to observe Dye walk in the direction of the phone and pass out of view, following which through the earpiece he could hear a coin deposited and a call made. Hoffman said he became familiar with Dye's voice and that of his employer, Esposito.

At the end of each day Hoffman made a "work copy" of the day's tapes. To do this, he recorded on another tape the portions of the original tape containing the damaging or incriminating and material conversations. He excluded all personal conversations, food orders, inquiries concerning liquor, and the like. Then a typewritten transcript was made

by a secretary (apparently in the prosecutor's office) of each daily "work copy." Thereafter Lieutenant Karkowski attached each "work copy" on a master reel which thereby reduced the total tap recording time from 105 hours on the original tapes to approximately 2 I/2 hours on the master reel. When this was done, the original tapes were delivered to the judge who issued the wiretap order. They were sealed by him and at his direction placed in a safe in the prosecutor's office. N.J.S.A. 2A:156A-14.

About five months before the trial of the indictment for bookmaking, the defendant was provided with a transcript of the master reel tape containing all of the incriminating calls. This transcript was about 200 pages long, and obviously the intervening five months period allowed adequate time for study thereof in advance ...


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