[183 NJSuper Page 519] Defendant seeks a trial by jury. He is charged with the disorderly persons offense of knowing possession of gambling
records of a kind commonly used in the conduct of a lottery, in violation of N.J.S.A. 2C:37-3 a(2).
Prior to enactment of the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 et seq. , an offense of this nature was classified either as a misdemeanor or as a disorderly persons offense. A misdemeanor subjected one to a State Prison term of not more than three years and a fine of not more than $1,000, N.J.S.A. 2A:121-3, while a disorderly persons offense carried a maximum penalty of six months in a county penal institution and a $500 fine. N.J.S.A. 2A:170-18 and 169-4.*fn1
The Code makes significant changes in the penalties attendant to this offense. Possession of gambling records is now a crime of the third degree subjecting one to a term of imprisonment of between three and five years and a fine of not more than $25,000, N.J.S.A. 2C:43-6 a(3) and 37-3 c, unless the records represent 100 or less plays or chances.*fn2 In the latter event, such possession is a disorderly persons offense carrying a term of imprisonment not exceeding six months and a fine of not more than $10,000. N.J.S.A. 2C:43-8 and 37-3 c.
The Code specifically provides that disorderly persons offenses are not crimes within the meaning of the New Jersey Constitution. There is no right to indictment by a grand jury nor to trial by jury. N.J.S.A. 2C:1-4 b. For an offense to become a crime under the Code, a sentence in excess of six months imprisonment must be authorized. N.J.S.A. 2C:1-4 a. However, all gambling offenses, be they crimes or disorderly persons offenses, must be prosecuted in the Superior Court, N.J.S.A. 2C:37-8, although the municipal court otherwise has jurisdiction
of disorderly persons offenses and offenses not requiring indictment by grand jury. N.J.S.A. 2A:8-21 d and g.*fn3
The questions, unanswered since adoption of the Code, are whether as a result of jurisdiction being placed in the Superior Court, a defendant charged with a disorderly persons gambling offense is entitled to a jury trial, and if not, whether such denial violates either the State or Federal Constitution.
R. 3:1-5, "Trial of Non-Indictables in Superior Court," was adopted to implement N.J.S.A. 2C:37-8 and provides that, in instances such as presented here, proceedings shall be governed by the rules in Part III "insofar as applicable." This, however, does not mean that the rules governing indictment and jury trial apply, given the specific prohibition of such in N.J.S.A. 2C:1-4 b. Rather, it is recognition that jurisdiction has been removed from the municipal court and recognition of the unique treatment gambling offenses have for some time received in this State. That treatment is exemplified by the Supreme Court directive requiring all sentencing in gambling cases to be handled by one designated judge in each county, State v. DeStasio , 49 N.J. 247, 253 (1967). This rule gains further meaning from N.J.S.A. 2C:34-2 b, which grants the right to a trial by jury to one charged with the disorderly persons offense of selling obscene material to anyone 18 years of age or older.
Therefore, the fact that gambling cases must be tried in Superior Court does not in any way affect the denial of the right to indictment and jury trial found elsewhere in the Code for disorderly persons offenses. Had the Legislature intended otherwise, it would have made provision in the same manner as for the disorderly persons obscenity offense.
N.J.S.A. 2C:1-4 a classifies as a "crime" any offense for which a sentence of imprisonment in excess of ...