On certification to the Superior Court, Appellate Division.
For Affirmance -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
We granted certification, 99 N.J. 175 (1984), to determine whether the New Jersey Racing Commission can consider, in a licensing hearing, evidence obtained by law-enforcement officials through illegal means. Appellant had been charged in a criminal indictment that was dismissed on grounds of entrapment. Thereafter, the Racing Commission refused to relicense appellant as a jockey. In reaching its determination the Racing Commission relied on evidence that had been gathered in the criminal investigation. The Appellate Division affirmed the Racing Commission's order, in an unreported opinion. We now affirm.
Appellant, Rudolph Delguidice, was a licensed jockey in New Jersey. In the spring of 1981, the New Jersey State Police commenced "Operation Glue," an undercover investigation targeted at jockeys involved in fixing races. State Police officers posing as horse owners sought jockeys who were willing to accept bribes to hold back horses in races.
During the same time period horse owner and trainer Burton Sipp was under investigation by a State grand jury for his alleged involvement in the improper scratching of a racehorse at the Atlantic City racetrack in August of 1980. In exchange for termination of this criminal investigation, Sipp agreed to aid the State Police by providing a number of his horses for use in "Operation Glue." The Racing Commission was unaware of the agreement between Sipp and the State Police. In fact, the Commission knew nothing at all about "Operation Glue" until after indictments were handed up at the conclusion of the investigation.
On November 16, 1981, two state police detectives representing themselves as the owner and trainer of a horse named Star Trader approached Delguidice at the Meadowlands Racetrack and asked him to ride their horse the following day. They requested that Delguidice so guide Star Trader as to have the horse "come in as far back as possible * * * without anybody looking at you." In response, Delguidice boasted that recently he had successfully held back a horse in Chicago, and he agreed to "get [Star Trader] beat by about 8 to 10 lengths." He requested $400 for this nefarious bit of artistry. The agents assented, paid him $200 in advance, and promised to pay the balance after the race. Before the running, however, the agents instructed Delguidice to ignore their earlier request and to race the horse to win. Although Star Trader was ultimately scratched from the race, the parties agreed to do business on a later occasion.
These conversations, tape-recorded by the undercover detectives, provided the basis for a criminal prosecution against Delguidice. He was indicted for conspiracy to rig a publicly-exhibited contest in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-11, and for agreeing to accept a benefit for rigging a publicly-exhibited contest contrary to N.J.S.A. 2C:21-11b. The Racing Commission suspended Delguidice's jockey license pending determination of the indictments.
In October 1982 criminal proceedings were commenced in the Superior Court, Law Division. The court granted defendant's pretrial motion to dismiss all criminal charges on the grounds that the actions of the State Police were sufficiently improper as to warrant a finding of entrapment. In essence what troubled the court was that rather than infiltrate and expose any existing patterns of race fixing, the State had manufactured its own criminal enterprise.
After the criminal indictments were dismissed, the Racing Commission notified Delguidice that it "contemplate[d] reviewing [his] standing in this jurisdiction * * *" and that it would
"also be consulting with the New Jersey Division of Criminal Justice and the New Jersey State Police Racetrack Unit to review the circumstances and facts giving rise to the criminal charges" lodged against him. Shortly thereafter, and apparently following its review of the transcripts of recorded conversations between appellant and the undercover operatives, the Racing Commission notified Delguidice that it would "not favorably entertain any application on [his] part to be licensed in any capacity in 1983." The Racing Commission concluded that Delguidice had accepted a bribe to influence the result of a race, in violation of N.J.A.C. 13:70-14.2; had conspired to commit a fraudulent practice in relation to racing, contrary to N.J.A.C. 13:70-14.8; and lacked the degree of integrity necessary to be licensed by the Racing Commission, as required by N.J.A.C. 13:70-4.7.
Appellant requested and was granted a formal hearing before the Racing Commission pursuant to N.J.S.A. 5:5-52 to contest the denial of his jockey license. At the hearing the Racing Commission considered all relevant evidence, including evidence obtained by the State Police during "Operation Glue." Delguidice objected to the use of any evidence relating to the undercover operation. The Racing Commission, however, admitted the challenged evidence and affirmed its earlier decision to deny appellant a license. There can be little doubt that the decision was based principally, if not entirely, on the evidence collected during "Operation Glue."
Delguidice appealed from the Racing Commission's decision, claiming that because the covert police investigation had been characterized in the criminal proceedings as offensive to principles of fairness, all evidence relating to the dismissed criminal indictments should have been excluded from the licensing hearing. The Appellate Division disagreed, concluding that because the Racing Commission had not been involved in "Operation Glue," it was proper for it to consider all of the evidence, and exclusion of the challenged tape-recorded conversations would have no substantial deterrent effect upon future unlawful police
conduct. See United States v. Janis, 428 U.S. 433, 446, 96 S. Ct. 3021, 3028, 49 L. ...