On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 276 (1977).
For reversal and reinstatement -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Clifford, J.
Defendant was indicted for possessing lottery slips, papers and memoranda pertaining to a lottery business in violation of N.J.S.A. 2A:121-3(b), and knowingly engaging as a messenger, clerk, copyist or other capacity in a lottery business in violation of N.J.S.A. 2A:121-3(a). The latter statute makes it a misdemeanor knowingly to act as
a messenger, clerk or copyist, or in any other capacity in or about an office or room in any building or place where lottery slips or copies of numbers or lists of drawings of a lottery, drawn or to be drawn anywhere within or without this State, are printed, kept or used in connection with the business of a lottery or lottery policy, so called * * *.
Defendant was convicted of both crimes. Although the Appellate Division affirmed his conviction for possessing lottery slips, papers and memoranda, it reversed his conviction for violating N.J.S.A. 2A:121-3(a), State v. Snow, 149 N.J. Super. 276 (1977). With respect to the "working for" offense, that court reasoned that the statute would authorize a conviction of a lottery messenger or worker only if it could be demonstrated that a particular building or place had been used in connection with the lottery business. 149 N.J. Super. at 281-282. We granted the
State's petition for certification, 75 N.J. 17 (1977), to review the reversal of the conviction for "working for a lottery."
The evidence at trial disclosed that on November 28, 1975 two East Orange police officers searching for a purse snatcher spotted defendant in the vicinity of 687 Central Avenue. Because he generally fit the description of the thief, defendant was questioned. He immediately asserted that he had just come from parking his automobile. To verify this the officers began to accompany defendant to the parking lot location. At this point one of the officers saw defendant drop two small tin foil packets on the street. Suspecting they might contain drugs, the officer retrieved the packets, opened them, and discovered two pieces of paper appearing to be lottery slips. Defendant was thereupon arrested, taken to police headquarters, and searched. In defendant's wallet the police found a third piece of paper likewise bearing certain notations suggesting it was a lottery slip. Through expert testimony the State established that the pieces of paper were indeed lottery slips; that defendant was a "writer," that is, one who writes or takes bets; and that he may also have been acting in the capacity of messenger at the time of his apprehension. Defendant did not testify.
Because the State failed to prove that defendant was working for a lottery in a specified place, defendant moved for judgment of acquittal. While recognizing that the Model Jury Charge (not approved by this Court) requires proof of a "betting place," New Jersey State Bar Association, Model Jury Charges § 2.400 at 121-23, the trial court nevertheless denied the motion and charged the jury that if it should "find the defendant was working for a lottery, it is not necessary that the State prove a particular place for conducting lottery operations." The court's reasoning, as revealed in its ruling on the motion, was that it does not comport with common sense to require proof of a gambling place where the evidence demonstrates that one is working for a lottery; that the statute in question should be given a broad
reading in keeping with the public policy of proscribing every phase of unlawful lottery operations; and in final analysis, as succinctly put by the trial court, "everybody's got to be someplace."
The Appellate Division reversed, being of the view that defendant's motion for acquittal on the "working for lottery" charge should have been granted. The court below perceived that "place" as used in the statute should not be understood to be ambulatory in the sense of encompassing a public sidewalk.
The statute clearly was intended to deal with a building or place used in connection with a lottery business, and not to embrace indiscriminately each and every location where one in possession of lottery slips happened to be, including a public sidewalk, and where, even though that person might be ...