State v. Hozer

• Decision Date: 27 June 1955
• Docket Number: No. A--159,A--159
• Citation: 19 N.J. 301,116 A.2d 193
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael HOZER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 301

19 N.J. 301

116 A.2d 193

STATE of New Jersey, Plaintiff-Respondent, v. Michael HOZER, Defendant-Appellant.

No. A--159.

Supreme Court of New Jersey.

Argued June 6, 1955.

Decided June 27, 1955.

James A. Major, Hackensack, for appellant (Joseph H. Gaudielle, Hackensack, on the brief)

Ralph L. Fusco, Perth Amboy, for respondent (Guy W. Calissi, Bergen County Pros., Hackensack, attorney; Ralph L. Fusco, Perth Amboy, of counsel).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

A jury in the Bergen County Court convicted defendant upon both counts of an indictment for nonfeasance in his office as Sergeant of Detectives of the Police Department of Cliffside Park. His appeal to the Superior Court, Appellate Division, was certified here on our own motion.

The headquarters and control center of a widespread gambling operation conducted by Frank Erickson were located at 452 and 454 Palisade Avenue, Cliffside Park. They were established in 1945 and operated over five years without interference from law enforcement authorities. Erickson employed about a dozen 'sitters' who worked daily at various locations outside Cliffside Park taking bets over the telephone, usually on horse racing but some times on other sporting events. The sitters neither received nor paid out moneys at their telephone locations. They noted on a small ticket the amount of each bet, the name of the horse, and the name of each player who telephoned his bet, and each night at the close of the day's business delivered the tickets to 452 Palisade Avenue. The sitters came to 452 Palisade Avenue the following morning at about 8 o'clock and remained until 9 or 9:30 tabulating the results of the previous day's play. Each sitter consulted the Morning Telegraph or the Racing Form, sources recognized as official by the gambling fraternity, to ascertain the winner and the pari-mutuel odds of the races run the day before, and tabulated from the slips each player's wins and losses on sheets called horse pads provided by Erickson. The slips were discarded when the recordings on the horse pads were completed.

Erickson's principal lieutenants were Clarence Lennon and Albert Levy. Lennon handled the money, and Levy kept the books. Each sitter turned over his completed horse pad to Levy and left before 9:30 a.m. to start the day's work at his Levy, Lennon and a few other employees worked all day at headquarters. Levy prepared 'recap' sheets which showed the previous day's net result for each player, that is, whether the player won or lost. If the player won, Lennon drew a check on an account in Lennon's name, and the check was mailed to the player. On occasions, winnings were paid in cash, delivered to the player by messenger. If the player lost, he was told by telephone the amount of his loss and was expected to mail a check to a postoffice box in Cliffside Park, or deliver cash in the amount of his losses to a messenger.

One Albert Klauser, in Erickson's employ at 452 Palisade Avenue, usually picked up the mail from the postoffice box. He was arrested on the steps of the postoffice one day in 1948, and he had Lennon were subsequently indicted and convicted on February 9, 1949 for conspiracy to violate the gambling laws. The proofs at their trial showed that one of the players was almost continuously in Lennon's debt for lost wagers and had made total payments to Lennon exceeding $100,000, State v. Lennon, 3 N.J. 337, 340, 70 A.2d 154 (1949). The magnitude of Erickson's operations in Cliffside Park may be readily inferred from that circumstance.

Erickson took the lease to 452 Palisade Avenue in 1945 in the name of Henry Pellino, his tax accountant doing business in New York City. He caused the legend 'Henry Pellino, Accountant' to be put on the front window, but Pellino objected and it was removed and replaced by the legend 'William Fernbacher, Auto Accessories.' Fernbacher was one of Erickson's close associates, although listed as his chauffeur. Neither an accountant's office nor an auto accessories business was ever carried on at the place.

Erickson continued his operations at and 454 Palisade Avenue after the arrest of Lennon and Klauser. Operations did not cease until about May 1, 1950 after Erickson's activities were spotlighted by the Kefauver Congressional crime investigation and newspaper publicity. Erickson and Levy were indicted for the operation on February 28, 1951, and upon entering pleas of guilty or Non vult were sentenced on November 14, 1952.

Telephones at the headquarters were an absolute necessity in the operation, for contacts with players, the sitters and other bookmakers. Erickson also carried on a lay-off business accepting lay-off bets from other bookmakers desirous of hedging against large losses. The telephone at 452 Palisade Avenue, originally in Pellino's name, was disconnected in 1947. Thereafter arrangements were made with tenants of apartments in both buildings for the use of their telephones and also for the use of the telephone of one Burnas who operated a camera shop under the name of Home Movies in the store at 454. The tenants and Brunas turned over their monthly telephone bills to Levy, and Lenon made payment thereof. Levy had a buzzer installed in Brunas' shop which Brunas used to summon Levy from the premises at 452 when there was call for him on the Brunas telephone.

The first count of the indictment charges Hozer with nonfeasance as to 452 Palisade Avenue, and the second count as to 454 Palisade Avenue. It is charged that at each place there was maintained between January 1, 1945 and May 1, 1950 a gaming and betting house 'wherein * * * bookmaking * * * and * * * the practices of bookmaking * * * were maintained and conducted * * *,' that defendant 'then and there well knew' of such activity but 'unlawfully did wilfully, deliberately and by design continuously neglect and omit to perform (his) * * * public duties' as Sergeant of Detectives of the Police Department 'enjoined upon him by law' and intentionally failed in his duty in this regard 'for the purpose of suffering and allowing the person or persons responsible therefor to escape detection, apprehension, seizure and punishment * * *.'

I.

Hozer's first point is that there was no proof of criminal activities at 452 and 454 Palisade Avenue and that he was therefore entitled to a directed judgment of acquittal on his motions made at the close of the State's case and at the close of the entire case. He contends that the activity described was neither 'bookmaking' nor the 'conduct of practices commonly known as bookmaking' denounced by R.S. 2:135--3, which was the statute in effect at the time.

Admittedly Erickson's activity hardly resembled that of the bookmaker, long familiar to the English and American turf, whose calling gave the trade its name, and who personally made his own book of bets at the track and personally settled his wins and losses with his bettors. Erickson magnified the relatively simple personal transaction into big business, developing a huge combine centered at Cliffside Park from which he sent forth his sitters to distant places to gather in the bets which he harvested at Cliffside Park where he kept the books and settled the accounts.

The settled definition of bookmaking under the statute is 'the making or taking and recording or registering of bets or wagers on races and kindred contests,' State v. Morano, 134 N.J.L. 295, 299, 47 A.2d 419, 422 (E. & A.1946). Erickson's method of operation presents a novel factual situation for the application of the definition and in that sense the issue raised here is one of first impression in our appellate courts. The defendants in previous cases made bets directly with bettors and not, as did Erickson, through sitters at telephones distant from his gaming plant. State v. Lennon, supra; State v. O'Shea, 16 N.J. 1, 105 A.2d 833 (1954); State v. Begen, 13 N.J. 137, 98 A.2d 295 (1953); State v. Rhams, 14 N.J. 282, 102 A.2d 40 (1954); State v. Maranz, 18 N.J.Super. 478, 87 A.2d 543 (App.Div.1952), certification denied 10 N.J. 309, 91 A.2d 228 (1952).

The gist of Hozer's argument seemingly is that, as it was the sitters at places distant from Cliffside Park who actually took the bets from the bettors and noted them on slips, Erickson's activities at Cliffside Park lacked an essential ingredient of the crime defined in the Morano case. The argument has force but, we think, no merit when Erickson's activities are considered in the light of the crime the statute was designed to reach. As Justice Heher noted in his opinion in the Morano case, our State has long been committed through constitutional prohibitions to an 'all embracive' policy against all forms of gambling, except as specifically sanctioned, and 'the design of the provision against bookmaking is * * * to enforce the general anti-gaming policy,' 134 N.J.L. at page 299--300, 47 A.2d at page 422. The statute is to be interpreted in that light and, so considered, brings Erickson's operations at Cliffside Park within the sweep of 'bookmaking' and 'bookmaking practices.' The outlying sitters simply worked at the finger tips of the hand which directed and controlled the criminal enterprise. Erickson was a bookmaker, "one who makes a book on a race or other doubtful event; a professional betting man," State v. Morano, 134 N.J.L. at page 297, 47 A.2d at page 421, and the activities pursued by him and his confederates at 452 and 454 Plaisade Avenue constituted 'bookmaking' and 'bookmaking practices.'

II.

Hozer next argues that the allegation that he 'well knew' of the unlawful use was not sustained by evidence. We think there was a plenitude of proof supporting the jury finding that he knew of the use. He did not confess or in anywise admit his knowledge, and ordinarily it is not possible otherwise to offer specific evidence of knowledge. Cf. State v. Doto, 16 N.J. 397, 109 A.2d 9 (1954). The conclusion must rest...