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State v. Petillo

Decided: July 5, 1972.


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.


Indictments were returned against defendant Petillo charging him with bookmaking and keeping a place to which persons might resort for gambling in violation of N.J.S.A. 2A:112-3. Upon trial he was convicted of both offenses. His appeal therefrom was certified by this Court before argument in the Appellate Division.

The evidence which provided the primary basis for the conviction was obtained by a search and seizure made at defendant's home pursuant to a search warrant issued by a Superior Court, Law Division, judge. The evidence seized fulfilled the reasonable expectations of the warrant and clearly justified the jury finding of guilt. The defense rested

at the trial without offering any testimony, and it is not suggested on this appeal that the verdict was contrary to the weight of the evidence.

The appeal presents as grounds for reversal (1) a claim that the trial court erred in denying defendant's pretrial motion to suppress the evidence of defendant's participation in the gambling operation which was seized pursuant to the search warrant, and (2) that the trial court committed prejudicial error in limiting the defense cross-examination of a police officer who was a witness for the State.

The second ground of appeal requires no extended discussion and may be disposed of at once. The testimony of the officer is not included in the appendix nor are the questions propounded to him by the defense on cross-examination or the arguments thereon at the trial set forth in the appendix or defendant's brief. However, their general nature is discussed in defendant's brief which suggests that they presented an additional basis for a defense attack on the witness' credibility. Ordinarily the scope of cross-examination of a witness rests in the discretion of the trial court. We see no such abuse of that discretion as would justify a finding of prejudicial error.

The record discloses that on March 20, 1970 State Trooper Laurent H. Gauthier executed a lengthy affidavit before the Law Division judge for the purpose of obtaining a warrant to search defendant's one family two-story house at 326 Bloomfield Avenue, Bloomfield. Gauthier had been a trooper for six years and had investigated numerous gambling complaints throughout the State. He swore that he received information from an informant, whose information had proved reliable in the past and had resulted in gambling arrests. The informant told him that a certain male was conducting a bookmaking or lottery operation or both at the address given above, and that the informant said he had placed numerous horse bets "in the past" with that person over telephone number 429-9377. According to Gauthier the New Jersey Bell Telephone Company records disclosed that number listed

to F. Petillo, 326 Bloomfield Avenue, Bloomfield, and further that there was an auxiliary number, 429-4933 also listed to the same person at that address.

The affidavit recited further that on March 4 at about 3:15 P.M. and March 5 at about 2:35 P.M. Gauthier met with the informant who said he could place a horse bet over 429-9377. On both occasions the officer dialed the number and on hearing a male voice say "hello," he handed the phone to the informant who identified himself, placed such bets and hung up.

On March 5 Gauthier conducted a surveillance of the Bloomfield home from 10 A.M. to 2 P.M. At 11:25 A.M. he observed a late model black Oldsmobile, New Jersey registration NLK 307 park in front of the house. A male about 5'8" tall, wearing a brown leather jacket and gray trousers alighted from the car carrying a paper bag. He went into the side entrance of the house. On March 6 and 9 the same surveillance was carried on and the same male driving the same car arrived and went into the house, this time carrying a red trimmed newspaper as well as a paper bag. Check showed the car registered to a Montclair resident.

After considering the affidavit and accepting the statements therein as credible the Law Division judge found that "probable cause existed to believe" that criminal gambling was being conducted at the described premises, and on the same day he authorized a search for evidence thereof. Gauthier and several other officers executed the search warrant later that afternoon and obtained ample evidence of bookmaking. When the officers forced their way into the house, Gauthier found Petillo (whose counsel later stipulated that he and his family were the tenants of the one family residence) in the kitchen standing at the sink. The water was running and defendant was swishing his hands around in the sink where particles of ...

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