State v. Dye

Citation291 A.2d 825,60 N.J. 518
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Bently Andrew DYE, Defendant-Appellant.
Decision Date05 June 1972
CourtUnited States State Supreme Court (New Jersey)

William J. Rohr, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

John A. Brogan, Deputy Atty. Gen., for respondent (George F. Kugler, Jr., Atty. Gen., attorney).

The opinion of the court was delivered by

FRANCIS, J.

Defendant Dye was convicted of bookmaking. The evidence from which the conviction resulted arose primarily from a wiretap of a telephone on the premises where Dye was employed. At the trial he challenged the admissibility of the wiretap product alleging that it was obtained in violation of the New Jersey Wiretapping & Electronic Surveillance Act, N.J.S.A. 2A:156A--1 et seq., and of the Fourth Amendment of the United States Constitution. After sentence an appeal was taken to the Appellate Division, which we certified prior to argument there.

I.

For some years prior to April 1969 Dye was an employee of the Middlebrook Lounge which operated a restaurant, bar and liquor store on U.S. Highway 22, Bridgewater Township, Somerset County, New Jersey. His working hours were from 8 A.M. to 4:30 P.M. A public pay telephone was located on the east wall of the liquor sales portion of the premises. It was this phone which was tapped pursuant to an order of the Superior Court, granted on sworn application of two detectives of the Somerset County Prosecutor's Office, who sought the order upon the written authorization of the prosecutor.

The supporting affidavit of Lieutenant Detective Karkowski of the Somerset County Prosecutor's Office asserted that he had been charged with conducting gambling investigations for nine years, and had qualified as an expert witness in such matters in Somerset County courts on 16 occasions.

On November 15, 1968 he had been advised by Lieutenant Silvio Donatelli of the Middlesex County Prosecutor's office that he (Donatelli) had good reason to believe a location in Middlesex County was being used for bookmaking purposes. He advised also that investigation revealed telephone toll records showing calls placed from the suspect location to telephone number 725--9743. On checking this number Karkowski found it to be listed for the Middlebrook Liquor Store, 966 U.S. Highway 22, Bridgewater Township. Further investigation at that time was non-productive.

On February 24, 1969 Karkowski was in the Somerset Diner, in North Plainfield, at about 10:30 A.M. While waiting to use the public telephone there (the location of which he described), he saw an unknown male use the telephone. The caller dialed Operator, asked for 725--9743, and when connected said 'Is Bentley there?' After a pause the caller said, 'Paul, Bentley. Can you get some in for me today?' Following another pause, the conversation continued, and the caller placed several bets on horses racing that day at Hialeah in Florida. After a pause, the caller said, 'O.K., Bentley, see you later,' and then returned to the dining area. Shortly thereafter, Karkowski looked over the dining area but could not locate the caller. A check of the Newark Star-Ledger that day revealed that the horses mentioned by the caller were scheduled to run that afternoon at Hialeah. Karkowski then rechecked the telephone number and found it listed as set forth above. He learned also that one employee of the liquor store was named Bentley Dye.

Pursuing this lead further, Karkowski instructed a confidential and reliable source of information, who had participated in other gambling investigations, to attempt to place bets with Dye. Subsequently, the informant reported he had been unsuccessful, added his feeling that Dye would not accept bets from strangers.

Karkowski then requested Detective James Hoffman of his office to assist in he investigation. On April 15, 1969 Hoffman went to the Middlebrook Liquor Store, posing as a fisherman. He saw Dye make frequent references to the Morning Telegraph and the sports pages of the Daily News. At times while doing so Dye looked at notations on a slip of white paper which he took from his shirt pocket. In addition Dye had some guarded conversations with customers and Anthony Esposito, the owner of the establishment, after Esposito appeared to have looked over the horse racing pages of the Daily News. Around 11:45 A.M. Dye went to the liquor store portion of the premises and Hoffman entered the men's room near the wall public telephone. Hoffman heard a coin drop and the dial used, following which he heard Dye recite at least 10 horse race bets on an entry in the eighth race at Gulfstream. Hoffman reentered the liquor store and, while Dye was still on the telephone, made use of the cigarette machine there. At that time he noticed Dye consult a piece of white paper taken from his shirt pocket.

Karkowski in his affidavit expressed his belief that Dye was engaged in bookmaking and would continue to use the telephone at Middlebrook for that purpose between the hours of 10 A.M. and 3 P.M. daily, Monday to Saturday, inclusive. He also said that there was a special need for interception of these telephone conversations because the telephone being a public as well as the private business phone of the Middlebrook Liquor Store, no toll records were maintained, and normal investigations were not being and probably would not be sufficiently productive. He, therefore, expressed the opinion that interception was necessary for a period of time in order to establish the pattern of the bookmaking operation, and so as to aid in identification of the parties involved in the conspiracy to carry on the criminal activity.

Detective Hoffman joined in the affidavit to corroborate his described participation in the investigation. He was to install and main the electronic equipment. By way of qualification to engage in a wiretap, he swore he had undergone a week of specialized training in the use of such equipment and in the techniques required for its proper installation. The instruction had been given to him by a named expert in the field of telephone conversation interception.

After considering the affidavits, making the findings required by section 12 of the Act, N.J.S.A. 2A:156A--12 and incorporating them in the order, on April 29, 1969 the Law Division Judge authorized Hoffman to 'intercept the wire communications of Bentley Dye relating to the offenses of Bookmaking and Conspiracy from telephone facility number 201--725--9743 listed to Middlebrook Liquor Store * * *' between the hours of 10 A.M. and 3 P.M. daily, Monday to Saturday, inclusive, for a period of 30 days. In accordance with section 23 the order directed that such 'interception begin and end as soon as practicable, * * * and be conducted in such a way as to minimize or leiminate the interception of such communications other than the type described.'

II.

Defendant has repeated certain objections made below to the order which may be considered at this point. He charges insufficiency of the supporting affidavits, alleging lack of sufficient 'showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed * * *' as required by N.J.S.A. 2A:156A--9(c)(6), 10(c). It is alleged also that since the telephone involved is a public facility the order is illegal because the affidavits failed to show a 'special need' for the wiretap of a public phone as required by N.J.S.A. 2A:156A--11; and in any event there was no proof to warrant fixing the daily period of the interception as between 10 A.M. and 3 P.M. We agree with the trial court that these contentions lack merit.

The objections may be considered together. As noted above efforts by a reliable undercover agent to place bets with defendant over the telephone failed. The undercover surveillance engaged in by Detective Hoffman had only limited success, aside from providing some corroboration of the strong suspicion that Dye was engaged in bookmaking. Obviously, it was not practical to have an agent on the Middlebrook premises and near the public telephone hanging on a wall and straining to hear Dye's conversation every time he made or received a call. Moreover, assuming that enough had been heard to arrest Dye for gambling activity, the information which made that action possible was not sufficient to involve and identify his coconspirators. Obviously, their apprehension was more important from the standpoint of law enforcement. The offense was a continuing one, and the telephone was playing an essential part in its success. In our view the facts contained in the affidavit sufficiently indicated that normal police investigative methods would not serve the purpose, and that there was a special need to tap the particular telephone, which was a partly public and partly private instrument. See, State v. Christy, 112 N.J.Super 48, 65, 270 A.2d 306 (Law.Div.1970). Accordingly, the Law Division judge properly exercised his discretion in granting the requested order.

The criticism of the daily time period allowed for the tap, namely, between 10 A.M. and 3 P.M. except for Sundays, is likewise without merit. Lieutenant Karkowski qualified as an expert in gambling operations and it was his opinion that Dye's telephone calls relating to bets probably would be made daily between those hours. Additionally, the two very suspicious telephone calls referred to in the affidavit were made during that time interval. And it was clear that Dye probably would be on the premises between 10 A.M. and 3 P.M. As was pointed out in State v. Christy, Supra, 112 N.J.Super. at 77-78, 270 A.2d 306, there is no express requirement in the statute that the hours of interception be specified in the order. The matter must rest in the reasonable discretion of the court. No abuse is discernible under the circumstances shown here.

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