Defendant challenges the constitutionality of N.J.S.A. 2C:37-2(c) and 2C:37-3(b)(2). The issues presented are those of first impression.
On June 6, 1980 Rudolf Fischer was arraigned on Indictment 761-79-09. The indictment alleged conspiracy to promote gambling (N.J.S.A. 2C:5-2), unlawful promotion of gambling (N.J.S.A. 2C:37-2(a)(1)) and unlawful possession of gambling records (N.J.S.A. 2C:37-3).
Defendant contends that both N.J.S.A. 2C:37-2(c) and 2C:37-3(b)(2) foster presumptions violative of the due process requirements incorporated into the 14th Amendment. The court will address the statutes in chronological order.
Any evaluation concerning the constitutionality of a statute must implement the universally accepted rule of statutory construction that legislative acts are presumed valid. Smith v. Penta , 81 N.J. 65 (1979), app. dism. 444 U.S. 986, 100 S. Ct. 515, 62 L. Ed. 2d 416 (1979); Grand Union Co. v. Sills , 43 N.J. 390 (1964). Likewise, although a number of interpretations would render a statute unconstitutional, a reasonable constitutional alternative must be used if available. 2A Sutherland, Statutory Construction (4 ed. 1973), § 45.11.
The gist of defendant's argument with respect to the affirmative defense established by N.J.S.A. 2C:37-2(c) is that the crime, as defined in N.J.S.A. 2C:37-2(a)(1), the indicted offense, requires defendant to accept or receive money or other property pursuant to an agreement "whereby he participates or will participate in the proceeds. . ."; a "player" as defined by N.J.S.A. 2C:37-1(c) is "a person who engages in any form of gambling solely as a contestant or bettor without receiving or becoming entitled to receive any profit therefrom. . ."; therefore, by requiring defendant to prove that he is a player, as required by N.J.S.A. 2C:37-2(c), defendant is forced to disprove an element of the offense, namely, that he participated or agreed to participate in the proceeds. In sum, he maintains that the affirmative defense set forth in N.J.S.A. 2C:37-2(c) improperly shifts the burden of persuasion to defendant.
While it is true that the Due Process Clause requires the State to prove every element of the offense beyond a reasonable doubt, In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970); see Patterson v. New York , 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977) and Mullaney v. Wilbur , 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), it is not "a constitutional imperative . . . that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses relating to the culpability of an accused." Patterson v. New York, supra at 210, 97 S. Ct. at 2327; see N.J.S.A. 2C:1-13(b)(2).
In order for the State to convict a defendant pursuant to N.J.S.A. 2C:37-2(a)(1) it must be established beyond a reasonable doubt that (1) defendant knowingly "accepted or received money or other property" and (2) he did so "pursuant to an agreement or understanding with any person whereby he participates or will participate in the proceeds of gambling activity". While the State is required to shoulder this burden throughout the trial, N.J.S.A. 2C:37-2(c) gives a defendant the opportunity to utilize the following escape hatch:
. . . [I]t is a defense to a prosecution under subsection a. that the person participated only as a player. It shall be the burden of the defendant to prove by clear and convincing evidence his status as such player.
The court sees no difficulty in compelling defendant to carry the burden of establishing the fact that he is entitled to utilize the means of diversion provided by the Legislature. The legislative ability to exercise this discretion is no secret, for
Defendant cites the cases of Patterson v. New York, supra at 206-207, 97 S. Ct. at 2324-2325; Mullaney v. Wilber, supra and Holloway v. McElroy , 632 F.2d 605, 624-625 (5 Cir. 1980), as standing for the proposition that an affirmative defense which negates an element of the offense is unconstitutional. Although defendant's interpretation is sound, his method of implementation is incomplete. Defendant would apply this rule in situations where the State has not presumed an element of the offense. Indeed, if this application were accepted, we would be hard-pressed to characterize any affirmative defense as ...