Schiaffo, J.c.c., Temporarily Assigned.
Angelo Roccasecca was indicted on June 5, 1973 for working for a lottery and possession of lottery paraphernalia, in violation of N.J.S.A. 2A:121-3(a) and (b). He then moved to suppress certain evidence allegedly seized from the drawer of his worktable at the Jonathan Logan Dress Co., in North Bergen, New Jersey, pursuant to a search warrant issued by an acting Municipal judge of the Municipal Court of the Township of North Bergen.
Lt. William Sybel of the North Bergen Police Department, in his affidavit, stated:
I have received confidential information that Angelo Roccasecca of 26 Oakwood Drive, Wayne, N.J. picks up number slips from the workers at the Jonathan Logan Dress Company, 3901 Liberty Ave.,
North Bergen, N.J. The subject writes down the action and then calls it in on telephone. Lieut. Joseph Dunlanie [ sic ] and I have kept the subject under surveillance for at least ten days and observed him go from worker to worker getting bets and writing them down. From my knowledge of gambling activities the subject collects the action and in turn calls it in to an organized outfit. The subject may also have slips in his 1968 Ford, color white, 2-door vehicle, reg. NMS 843 N.J. On occasion workers have approached him, handed him money, slips of papers with numbers on them, and joked about it.
The only grounds raised by defendant on his motion to suppress were the failure of the affidavit to state facts from which a finding of probable cause could be made, and the lack of jurisdiction of the judge issuing the warrant. The motion was heard by County Judge Young, who denied defendant's contentions without written opinion.
Almost a year later, in the course of preparing the case for trial, Lt. Joseph Dulanie, Sybel's partner, apparently had a conversation with an assistant prosecutor which contradicted the statements made by Lt. Sybel in the search warrant and in grand jury testimony. Dulanie subsequently submitted to the assistant prosecutor a signed statement setting forth his version of the events which led to the issuance of the warrant. Dulanie's statement alleges the following:
(1) During the first week of surveillance defendant had been observed at lunchtime outside of the factory in which he was employed.
(2) Dulanie and Sybel followed him to the Triangle Bar during Roccasecca's lunch hour.
(3) During the second week of surveillance (March 9, 1973) Dulanie entered the factory under the pretense of checking the alarm system.
(4) While in the factory, Dulanie observed defendant at his worktable writing numbers down and talking to other employees.
(5) However, Dulanie did not observe the defendant taking any bets. He only saw defendant refuse to take money from an employee on one occasion.
(6) On the evening of March 9 Dulanie went to the work area of Roccasecca's table and looked around.
(7) Dulanie opened a drawer in the table and discovered a package of papers containing numbers bets.
(8) Dulanie did not take anything from the drawer.
(9) Dulanie notified Sybel of his discovery by telephone on the evening of March 9, and on March 10 he states that "we" secured a search warrant from Judge Tomasin of West New York.
It therefore appears that Lt. Sybel was incorrect when he stated in his affidavit in support of the search warrant that it was he and Dulanie who had "kept the subject under surveillance for at least ten days and observed him going from worker to worker getting bets and writing them down." Lt. ...