On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Botter,*fn1 King and McElroy. The opinion of the court was delivered by King, J.A.D.
Defendant was found guilty of possession of lottery slips, in violation of N.J.S.A. 2A:121-3(b), and with working for a lottery, in violation of N.J.S.A. 2A:121-3(a). He received a custodial sentence and now appeals, claiming that (1) the trial judge unreasonably restricted his right to cross-examine the State's witness, Detective Lang of the narcotics squad, (2) the jury verdict was improperly returned and (3) his trial counsel was ineffective. Since we reverse on the first ground for several reasons, we do not reach the latter grounds.
As a result of an informant's tip the police initially suspected that defendant was a large-scale narcotics dealer. They commenced a surveillance in the area of Springfield Avenue and Hunterdon Street in the City of Newark on September 26, 1977.
The surveillance continued through September 27 and 28. Lang allegedly observed defendant receiving money from a number of people on the street during his surveillance. During Lang's three-day surveillance he never saw defendant receive anything but money and never saw him write anything down. Once, on September 27, Lang saw defendant give something to a person on the street. Lang could not tell what it was.
Based on Lang's observations a search warrant for defendant's person, home and car was issued and executed on October 3. In the affidavit supporting the application Lang expressed the opinion that defendant was engaged in illicit narcotics transactions, not lottery. Lang testified that the search of defendant's person revealed lottery slips and the search of his home produced an adding machine, a calculator, numerous sheets of paper, slips, lottery ribbons, five packages of manila envelopes and two hundred dollars. All, according to the police, evidenced that defendant was working for a lottery operation as a writer. Defendant testified and denied guilt on the charges. He claimed that the evidence was planted by the police, presumably out of frustration, because no narcotics or evidence of narcotics activity were found on defendant, in his home or car.
Early in Lang's cross-examination the following occurred:
Q. [by defense attorney]: Now, you state that on September 26th, you observed Mr. Crudup talking to some people?
Q. Three males, one female?
A. I do not recall testifying to that, Sir, talking to somebody. As I testified, they ...