State v. De Falco, A--303

• Decision Date: 28 June 1950
• Docket Number: No. A--303,A--303
• Citation: 74 A.2d 338,8 N.J.Super. 295
• Parties: STATE v. DE FALCO.
• Court: New Jersey Superior Court — Appellate Division

Page 295

8 N.J.Super. 295

74 A.2d 338

STATE v. DE FALCO.

No. A--303.

Superior Court of New Jersey

Appellate Division.

Argued June 19, 1950.

Decided June 28, 1950.

Anthony A. Calandra, Newark, attorney for and of counsel with defendant-appellant, argued the cause.

Edward Gaulkin, First Assistant Prosecutor, Newark, argued the cause for the plaintiff-respondent (Duane E. Minard, Jr., Essex County Prosecutor, Newark, attorney; C. William Caruso, Legal Assistant Prosecutor, Newark).

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Defendant, Nicholas De Falco, appeals from a judgment of conviction of the crime of bookmaking resulting from a jury trial before the Essex County Court. He was jointly indicted with one Frank Esposito, the latter of whom retracted his plea of not guilty and entered a plea of non-vult. The trial proceeded against De Falco alone and Esposito testified as a witness for the defendant.

There is no serious dispute between the parties as to the applicable law. Their disagreement revolves around the factual situation. We will limit our discussion to the grounds of appeal which we think are essential for the determination of the issues, viz.: that the court erred in denying motions for acquittal at the end of the State's case and at the end of the entire case, and that the verdict is against the weight of the evidence. The defendant insists that the State's proofs were such that the jury could not legitimately infer that De Falco was participating in the unlawful operation of bookmaking; that all the State established was that De Falco was present in the apartment where admittedly Esposito was engaged in bookmaking at the time the police officers made the raid. The State's proofs at the end of its case were that on February 15, 1949, shortly after 2:00 P.M., Detectives Fisher and Wiener of the Essex County Sheriff's Office, together with four Orange City detectives, raided an apartment on the third floor of premises No. 409 Minton Place, Orange. The apartment consisted of a living room, kitchen, two bedrooms and a bathroom, tenanted by Mr. and Mrs. Petruzzelli, the latter of whom is De Falco's sister. Detectives Fisher, Wiener, Savage and Capawanna proceeded up the rear stairway and upon arrival at the apartment, Detective Fisher knocked on the door twice without response. He then observed what appeared to be a 'flame on this frosted glass on my left', which was the reflection on the bathroom window of a fire inside. Fisher thereupon broke the glass in the kitchen door and gained entrance by reaching inside and unlocking it. They proceeded immediately to the bathroom where they saw two men, De Falco and Esposito, attempting to put out the fire that had set the curtains on fire. The officers assisted in extinguishing the flames. Upon inquiry as to the cause of the fire, the officers testified that Esposito said he was attempting to destroy some obscene pictures. There was testimony that both Esposito and De Falco 'had their jackets off and they were in their shirt sleeves.' A search was them made of the living room and the following articles pertaining to bookmaking were discovered and seized: A William Armstrong scratch sheet, dated February 14th, containing a list of horses entered at various tracks, and other information pertinent thereto, which was found underneath a child's school notebook, also two 'run-down' sheets used by bettors to make bets, containing bets made on February 14th and 15th, and a scrap of paper containing bets made on an unknown date; another Armstrong scratch sheet dated February 1, 1949, discovered in the waste paper basket under the kitchen sink. While the officers were in the apartment, two telephone calls were received by Detective Fisher, asking for 'Frankie'. One requested the result of the first race at the Hialeah track and one was from a bettor making a bet. Detective Wiener testified that after the officers entered the apartment, De Falco 'brought me outside' and said 'Your brother represented me at one time' and requested Wiener to 'Let me out of here.' Wiener replied, 'You're in here and you're caught, and you will have to take the consequences.' De Falco testified in his own behalf and denied any connection with the bookmaking operation, that he went to his sister's apartment as a result of a call from his mother that his sister was ill, being driven there by a Mr. Caggiano; that his sister was not home and he was admitted to the apartment through the back by Esposito; that he was only in the apartment five minutes when the raid occurred; that he was 'on parole' from State Prison and was 'a little fidgety' and when asked to explain his presence he stated 'I don't know'; that he was in the kitchen from the time of his arrival until the officers entered; that he was never in the bathroom with Esposito to help extinguish the fire. De Falco admitted previous convictions of crime, one for robbery and one in 1946 for maintaining a place for gaming. Caggiano testified for the defendant that he had given him a ride in his car to his sister's home; that he was to call for De Falco in fifteen or twenty minutes...