State v. Andreano

• Decision Date: 22 December 1971
• Citation: 117 N.J.Super. 498,285 A.2d 229
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ralph P. ANDREANO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 498

117 N.J.Super. 498

285 A.2d 229

STATE of New Jersey, Plaintiff-Respondent, v.Ralph P. ANDREANO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 15, 1971.

Decided Dec. 22, 1971.

Louis Santorf, Paterson, for appellant(Breslin & Breslin, Hackensack, on the brief).

Michael R. Perle, Deputy Atty. Gen., for respondent(George F. Kugler, Jr., Atty. Gen., attorney).

Before Judges CONFORD, MATTHEWS and FRITZ.

PER CURIAM.

Defendant was convicted under two indictments charging him with bookmaking and without maintaining a gambling resort, contrary to the provisions of N.J.S.A. 2A:112--3.He was sentenced to two to three years in State Prison, Trenton, and a $500 fine on the bookmaking indictment, and one to two years on the maintaining indictment, the sentences to run concurrently.

Briefly stated, defendant's defense was that he was not a bookmaker but that he was merely acting as a messenger in taking the bets of one Bassant to a pari-mutuel race track as a favor.

In his charge the trial judge informed the jury:

It is a crime, however, for someone to accept a bet from another individual to place at a pari-mutuel race track.And if you believe and accept the version that has been given to you by the defendant with respect to the bookmaking charge, it would be your duty to convict him, whether you believe his version or whether you accept the version which has been advanced by the State, provided you are convinced, of course, beyond a reasonable doubt within the principles of law as I have given them to you; likewise, with respect to the charge of maintaining a place where persons may resort for gambling.

The defendant's testimony, as I recall it, states that he did take bets on occasions from persons and did place those bets at the race track and if the persons won, he took them their money, and if they lost, he delivered their losing tickets to them.

Mr. Bassant testified to the same effect concerning his relationship with the defendant.And I must likewise charge you that if you are convinced of the truth of the defendant's version with respect to the maintaining a gambling resort charge, you must likewise convict him, provided you are so convinced beyond a reasonable doubt within the principles of law that I have given you.

We find the quoted portion to have been prejudicially erroneous in two respects, even after considering the charge in its entirety.

First, the effect of this language is to deprive the jurors of their right to be sole judges of the facts.The jurors were not permitted to reject the judge's instructions if their recollection and determination of the facts did not concur with his recollection, despite his assurance that they must be convinced beyond a reasonable doubt.They were unequivocally told that under either version of the facts, I.e., that advanced by the State or that advanced by defendant, a crime had been committed.In short, we find that the trial judge directed the jury to return guilty verdicts.Such an instruction is patently erroneous.State v. Seifert, 85 N.J.L. 104, 88 A. 947(Sup.Ct.1913), aff'd86 N.J.L. 706, 92 A. 345(E. & A.1914);State v. Jefferson, 129 N.J.L. 308, 310, 29 A.2d 546(E. & A.1943);State v. Swan, 130 N.J.L. 372, 374, 32 A.2d 843(E. & A.1943);State v. Greely, 30 N.J.Super. 180, 186, 103 A.2d 639(Cty.Ct.1954), aff'd o.b. 31 N.J.Super. 542, 107 A.2d 439(App.Div.1954).

Second, the trial judge also instructed the jury that the crime of bookmaking occurs whenever an individual accepts a bet from another to be placed at a pari-mutuel race track, irrespective of whether that individual acts as a mere conduit and gains no benefit from the transaction.We do not agree that such conduct constitutes a violation of ...