On appeal from Superior Court, Hudson County, Law Division.
Conford and King. The opinion of the court was delivered by Conford, P.J.A.D., Retired (temporarily assigned).
Defendant was indicted with Primas Johnson, Mildred Commandatore and Anthony Commandatore for various violations of the criminal statutes pertaining to the operation of a lottery. The Commandatores pleaded guilty immediately prior to the beginning of the trial of Bellucci and Johnson under circumstances material to the determination of this appeal, later to be recounted. Bellucci and Johnson were both convicted of working for a lottery and possession of lottery paraphernalia. Bellucci appeals on various grounds of which only two have merit. One is conflict of interest on the part of his trial counsel, and it will compel a reversal and new trial. We deal with the other grounds first.
On December 13, 1973 a raiding party of undercover detectives attached to the New Jersey State Police Gambling Unit converged on 16-18 Beacon Avenue in Jersey City. The premises were suspected of housing an illegal lottery operation and had been under surveillance for some time.
At approximately 4:30 P.M. the detectives observed Mildred Commandatore and Primas Johnson in the driveway of 18 Beacon Avenue. They were apprehended after police observed Johnson passing a paper bag to Commandatore. The bag contained lottery slips and $1280.50 in cash. Immediately thereafter, pursuant to a search warrant, the officers entered the kitchen of the premises at 18 Beacon Avenue. Defendant was observed seated at the kitchen table with slips of paper in front of him and a red pen in his hand. In close proximity to defendant on the table was an adding machine, a cellophane bag containing slips
of paper and scattered slips of paper with names and amounts of money written on them. Sixteen slips of paper containing numbers and initials were seized from the table at which defendant was sitting. Seized from the table was $450, and $456 was taken from defendant's person. The police placed defendant under arrest.
An expert witness for the State testified that much of the evidence seized in the raid on 18 Beacon Street was unlawful lottery paraphernalia. The witness opined that 18 Beacon Avenue was "being used as an office in the illegal lottery operation" and that defendant was "an employee of the illegal lottery operation."
At trial defendant disclaimed any connection with the lottery operation, although he was familiar with it, explaining he was present at the time of the raid only as a visitor to Mrs. Commandatore preliminary to an intended call on his friend, Mrs. Commandatore's brother, who was a patient at a nearby hospital. She had been sitting with him at the table, but had excused herself momentarily just before the police entered the room. There was copious evidence of Johnson's participation in the operation of the lottery along with the Commandatores.
Defendant urges that the prosecutor made improper and prejudicial remarks in his summation which deprived him of a fair trial. The comments here objected to concern (1) the prosecutor's reference to the "classic Hudson County defense" and (2) his observations respecting the trial tactics of counsel for codefendant Johnson.
In summation, the prosecutor stated:
The defense in this case when you look at it is really in two parts * * * -- we can call the first part your basic and your classic Hudson County defense. It consists of this: * * * it consists of this as being brought out with regard to each of the Defendants, with ...