Pursuant to R. 3:10-2, defendant Allen Gerson Perlman moves for the dismissal of three of the four counts of the state grand jury indictment filed and entered against him for allegedly having engaged in conduct in part violative of the Casino Control Act, N.J.S.A. 5:12-1 et seq. The issues raised by this motion are of first impression and their resolution is indeed of utmost import to the enforcement of the act's penal provisions.
Generally speaking, defendant is charged with four counts of swindling and cheating during his participation in the
game of blackjack at a single blackjack table at the Resort International Casino on or about June 17, 1978. More specifically, in the indictment it is alleged that defendant engaged in the following conduct during the course of a single calendar day: first, with the intent to win more than that to which he was entitled on the basis of his legal wager, by trick and sleight of hand performance defendant increased his wager on a round of blackjack after the first card of the round was dealt, and thereby unlawfully won $200 worth of chips; second, during another round of blackjack, with the same intent as described above and by means of a similar trick and sleight of hand performance, defendant unlawfully won $300 worth of chips; third, during a third round of blackjack, with the same intent as described in the first, and by means of a similar trick and sleight of hand performance, defendant unlawfully attempted to win $100 worth of chips; and fourth, with the intent to lose less than that which he would otherwise have lost on the basis of his legal wager, by trick and sleight of hand performance defendant decreased his wager on a round of blackjack after the first card of said round was dealt, and thereby unlawfully attempted to recapture $200 worth of chips wagered. Whether any or all of the above four transactions are violative of the law must first be determined. If more than one of the above transactions is found to be violative, this court must then address the more difficult and intriguing issue of whether, pursuant to the terms of the Casino Control Act, the transactions constitute one indictable offense or multiple indictable offenses. The court will deal with these issues separately.
While there is no serious contention that all four of the above transactions do not constitute criminal conduct, this court feels compelled to address the issue of whether the transactions do constitute such conduct in view of the fact that the resolution of this issue is germane to the disposition of defendant's motion.
The Casino Control Act makes unlawful the following conduct and authorizes the imposition of the following penalties in the event of a proven violation:
Swindling and cheating; penalties
Any person who by any trick or slight [ sic ] of hand performance, or by a fraud or fraudulent scheme, cards, dice or device, wins for himself or for another money or property or a representative of either in connection with casino gaming is guilty of a misdemeanor and subject to not more than three years imprisonment or a fine of $25,000.00 or both, and in the case of a person other than a natural person, to a fine of not more than $100,000.00. [ N.J.S.A. 5:12-113; emphasis supplied]
On its face, the indictment filed and entered against defendant charges him with the commission of conduct some of which the above provision does not explicitly make criminal. Specifically, while the above provision proscribes, among other things the winning of a representative of money by engaging in certain conduct, the indictment charges in two counts that defendant unlawfully won a representative of money, in a third count that defendant unlawfully attempted to win same, and in a fourth count that defendant unlawfully attempted to recapture a representative of money he had wagered. The conduct alleged in the first two counts is undoubtedly violative of the act. Whether the conduct alleged in the third and fourth counts also constitutes criminal conduct is at issue.
Admittedly, N.J.S.A. 5:12-113 does not identify an attempt to unlawfully win a representative of money as criminal behavior. However, elsewhere it is statutorily provided that an attempt to commit an indictable offense is itself a misdemeanor, and thus also an indictable offense. N.J.S.A. 2A:85-5. This latter provision is generally applicable to attempts to commit all crimes and was not made inapplicable to criminal violations of the Casino Control Act. Consequently, the provision must be construed as ...