Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Matthews, J.A.D.
[123 NJSuper Page 446] Defendant seeks a reversal of his conviction by a jury for bookmaking. (N.J.S.A. 2A:112-3).
He asserts three grounds: (1) the trial court improperly denied his motion to suppress; (2) the State failed to prove an act of bookmaking on the day alleged in the indictment; (3) the prosecutor's comments on summation were highly prejudicial.
Evidence at the motion to suppress showed that police executed a search warrant which authorized a search of the person of Joseph Loiacono (a codefendant) and premises known as Lenny & Joe's Barber Shop. Defendant was seated in a chair with a towel or nylon cloth about his shoulders when the raiding party entered the shop. During the ensuing search, a "comeback sheet" (record of money owed on bets) was found in the inside pocket of a suit jacket later identified as defendant's which was hanging on the customers' coat rack. The coat rack also held defendant's overcoat, a barber's jacket and three hats. Two barbers and a shoeshine man were present in the shop. Defendant was the only customer at the time.
The trial judge found that no members of the raiding party knew the jacket in which the "comeback sheet" was found was defendant's until after it had been searched -- and that such lack of knowledge was reasonable under the circumstances. We find sufficient credible evidence in the record to support those findings.
Defendant also challenges the sufficiency of the State's proof and the judge's charge to the jury with respect to the lack of proof of an affirmative act of bookmaking on the date of his arrest. The slip of paper in defendant's jacket pocket contained a record of bets placed during the week of February 15, 1970 and, on the reverse side, a record of money owed or still to be paid. The State's expert witness testified that because defendant had not destroyed the paper, it was likely money was still owing March 5, 1970, the date of the bookmaking alleged in the indictment. The trial judge charged the jury that some current activity either actual or anticipated had to be proven, and that if defendant had taken bets in the past and if that money was still
owing on March 5th and, if further, defendant had intention to collect that money March 5th, the jury could find him guilty of bookmaking. These instructions were proper. He did not inform the jury as defendant contends, that mere possession of the "comeback sheet" was enough to support a conviction. Bookmaking is an operation which involves both the placing of bets and the paying off (or collection of) bets.
Defendant's final argument involves the following portions of the prosecutor's summation which he claims to have been prejudically improper:
Incidentally, you had an opportunity during the trial to observe Daniel Gould and Joseph Loiacono. From your common experiences as mature adults evaluate your observations. Look at Mr. Gould. How does he impress you?
Following defense counsel's objection, the prosecutor continued:
Again there was a vigorous objection from defense counsel, followed by the trial judge's observations that "the jury may observe demeanor * * *," after which the prosecutor stated to the jury:
His demeanor alone can't convict him. It is only one other indicia, when added to S-8 in evidence, gives you a conclusion to draw Daniel ...