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State v. Souss

Decided: August 6, 1974.


For affirmance -- Chief Justice Hughes, and Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. For reversal -- None. The opinion of the Court was delivered by Clifford, J.


The sole issue raised by this appeal is the propriety of concurrent custodial sentences imposed on defendant after a guilty plea to charges of bookmaking and unlawful possession of lottery slips in violation of N.J.S.A. 2A:112-3 and N.J.S.A. 2A:121-3(b) respectively. The Appellate Division approved the sentences in an unreported opinion and this Court granted certification. We affirm.

Preliminarily we observe that this is not the occasion for an in-depth exploration of possible alternatives to or revision of our sentencing practices. See State v. DeStasio, 49 N.J. 247 (1967) and State v. Velasquez, 104 N.J. Super. 578 (App. Div.), aff'd 54 N.J. 493 (1969), and particularly the authorities referred to in Justice Jacobs' concurring opinions in those cases, 49 N.J. at 261-262 and 54 N.J. at 493-495. The record presented to us is entirely insufficient for a profitable excursion in that direction and we leave it for another day. Our review is limited to the question of whether the sentencing judge abused his discretion, e.g., State v. Tyson, 43 N.J. 411, 417 (1964), cert. denied, 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965), in imposing a 1 to 2 year term in New Jersey State Prison and a fine of $1000 on the bookmaking charge and a concurrent 1 to 2 year term on the unlawful possession of lottery slips count.

Defendant was charged in six counts of an indictment which contained over seventy counts. Souss and twenty-three of the other defendants commenced trial. After about five weeks of trial Judge Handler accepted this defendant's guilty pleas to the two counts aforementioned; the remaining counts charging Souss with conspiracy, working for a lottery, and maintaining premises for gambling and bookmaking were dismissed. Thereafter, Judge Giuliano, then Assignment Judge of Essex County, imposed sentence pursuant

to this Court's administrative directive that all gambling sentences be imposed by one judge in the county.

The papers before us include the presentence report and transcript of sentencing. From them and from supplemental information acquired at oral argument we learn that defendant's arrest came about as the result of an intensive electronic surveillance investigation, forming the basis for search warrants, carried out by the Essex County Prosecutor's Office in conjunction with the Hudson, Union and Morris County Prosecutors' Offices and some municipal police departments. Armed with those warrants the authorities conducted simultaneous raids upon about thirty premises in north Jersey. Included was the house of Louis and Yolanda Souss*fn1 in Belleville, where members of the Essex County Prosecutor's Office confiscated several papers, notebooks related to gambling, a racing program and $215 in cash wrapped in a series of paper slips "with notations relating."

Defendant directs our attention to those parts of the record which disclose that he has no prior criminal record; that at the time of sentencing he was 60 years of age and had been steadily employed by I.T. & T. for the last 32 years; that his wife suffers from arteriosclerosis and experiences angina pain; and that the couple lost one son in childbirth and thereafter adopted a baby boy. He asserts that he was only a "player" -- a frequent contention in cases of this type but one clearly at odds with defendant's plea to bookmaking -- and that he was not involved with organized crime. It is substantially on the basis of this information that Souss argues for probation from the custodial sentences imposed, not simply a reduction therein inasmuch as N.J.S.A. 2A:112-3 requires a minimum term of one year.

Specifically, defendant charges that the sentencing judge "misunderstood the mandates" of State v. Ivan, 33 N.J. 197

(1960), as a result of which probation was "automatically denied" due to a "hasty allegation [by the court] that this man was associated with one of the largest syndicated operations in the county." His brief contains the concession that if that association exists, "then the denial of probation would indeed be in accordance with State v. Ivan." In effect he argues not that the judge abused his discretion but rather that he did not exercise any discretion at all. Finally he says that he is the victim of a mandatory policy in Essex County under which anyone convicted of a gambling offense receives a custodial sentence, whereas those convicted of other crimes receive greater consideration for probation.


State v. Ivan, supra, cannot be read as standing for the proposition that a mandatory prison sentence follows from a gambling conviction and that the judge is thereby robbed of his discretion in the matter of sentencing. If there were any doubt on that score, it should have ...

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