State v. Petillo

Decision Date05 July 1972
Citation61 N.J. 165,293 A.2d 649
PartiesSTATE of New Jersey Plaintiff-Respondent, v. Frank PETILLO, Defendant-Appellant.
CourtNew Jersey Supreme Court

Daniel E. Isles, Orange, for appellant (Querques, Isles & Weissbard, Orange, attorneys; Harvey Weissbard, Orange, on the brief).

Michael H. Stieber, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

The opinion of the Court was delivered by

FRANCIS, J.

Indictments were returned against defendant Petillo charging him with bookmaking and keeping a place to which persons might resort for gambling in violation of N.J.S.A. 2A:112--3. Upon trial he was convicted of both offenses. His appeal therefrom was certified by this Court before argument in the Appellate Division.

The evidence which provided the primary basis for the conviction was obtained by a search and seizure made at defendant's home pursuant to a search warrant issued by a Superior Court, Law Division, judge. The evidence seized fulfilled the reasonable expectations of the warrant and clearly justified the jury finding of guilt. The defense rested at the trial without offering any testimony, and it is not suggested on this appeal that the verdict was contrary to the weight of the evidence.

The appeal presents as grounds for reversal (1) a claim that the trial court erred in denying defendant's pretrial motion to suppress the evidence of defendant's participation in the gambling operation which was seized pursuant to the search warrant, and (2) that the trial court committed prejudicial error in limiting the defense cross-examination of a police officer who was a witness for the State.

The second ground of appeal requires no extended discussion and may be disposed of at once. The testimony of the officer is not included in the appendix nor are the questions propounded to him by the defense on cross-examination or the arguments thereon at the trial set forth in the appendix or defendant's brief. However, their general nature is discussed in defendant's brief which suggests that they presented an additional basis for a defense attack on the witness' credibility. Ordinarily the scope of cross-examination of a witness rests in the discretion of the trial court. We see no such abuse of that discretion as would justify a finding of prejudicial error.

The record discloses that on March 20, 1970 State Trooper Laurent H. Gauthier executed a lengthy affidavit before the Law Division judge for the purpose of obtaining a warrant to search defendant's one family two-story house at 326 Bloomfield Avenue, Bloomfield. Gauthier had been a trooper for six years and had investigated numerous gambling complaints throughout the State. He swore that he received information from an informant, whose information had proved reliable in the past and had resulted in gambling arrests. The informant told him that a certain male was conducting a bookmaking or lottery operation or both at the address given above, and that the informant said he had placed numerous horse bets 'in the past' with that person over telephone number 429--9377. According to Gauthier the New Jersey Bell Telephone Company records disclosed that number listed to F. Petillo, 326 Bloomfield Avenue, Bloomfield, and further that there was an auxiliary number, 429--4933 also listed to the same person at that address.

The affidavit recited further that on March 4 at about 3:15 P.M. and March 5 at about 2:35 P.M. Gauthier met with the informant who said he could place a horse bet over 429--9377. On both occasions the officer dialed the number and on hearing a male voice say 'hello,' he handed the phone to the informant who identified himself, placed such bets and hung up.

On March 5 Gauthier conducted a surveillance of the Bloomfield home from 10 A.M. to 2 P.M. At 11:25 A.M. he observed a late model black Oldsmobile, New Jersey registration NLK 307 park in front of the house. A male about 5 8 tall, wearing a brown leather jacket and gray trousers alighted from the car carrying a paper bag. He went into the side entrance of the house. On March 6 and 9 the same surveillance was carried on and the same male driving the same car arrived and went into the house, this time carrying a red trimmed newspaper as well as a paper bag. Check showed the car registered to a Montclair resident.

After considering the affidavit and accepting the statements therein as credible the Law Division judge found that 'probable cause existed to believe' that criminal gambling was being conducted at the described premises, and on the same day he authorized a search for evidence thereof. Gauthier and several other officers executed the search warrant later that afternoon and obtained ample evidence of bookmaking. When the officers forced their way into the house, Gauthier found Petillo (whose counsel later stipulated that he and his family were the tenants of the one family residence) in the kitchen standing at the sink. The water was running and defendant was swishing his hands around in the sink where particles of water soluble paper were observed in the drain. Search of the dining room revealed water soluble paper in a china closet, which one officer, who qualified at the trial as a gambling investigation expert, said was commonly used by bookmakers in order to facilitate destruction of the written record of their activities.

On the kitchen floor near a table on which was evidence of bookmaking activity, was a telephone with its wires ripped out. A loose telephone wire led across the kitchen floor and into the basement where it was hooked to a terminal box. One detective reconnected the wires and began to answer the phone, first in the kitchen, then in the basement. Some callers placed horse and number bets, some asked for 'Frankie,' and others refused to talk.

Following his indictment for bookmaking, and maintaining a house to which persons might resort for gambling purposes, Petillo moved to suppress the inculpatory evidence obtained in the raid on the ground that parts of Trooper Gauthier's affidavit to procure the search warrant were perjurious. The claim was not that as a matter of law the factual statements in the affidavit were not sufficient to justify issuance of the warrant; it was that certain indispensably material facts therein were untrue and therefore the warrant was illegal. Nor was it suggested that the affidavit on its face lacked a satisfactory appearance of trustworthiness. At the hearing on the motion the State objected to the introduction of any such alleged proof on the ground that the only issue properly before the court was whether the factual recitation contained in the affidavit sworn to before the judge who issued the warrant was legally sufficient to warrant a finding of probable cause to believe that the criminal activity described was being carried on at the named premises. The trial court overruled the objection.

Defendant then produced Mrs. Dorothy Waski, Assistant Manager of the New Jersey Bell Telephone Company office in Montclair. According to her testimony the company records showed that Petillo had two telephone numbers assigned to him on December 3, 1969. They were 429--9377 and 748--4933; four telephone instruments were installed for 9377; one for 4933 which was described as an auxiliary line. The witness then testified that the two different exchange numbers, 429 and 748 were given to Petillo through inadvertence and would cause computer billing problems--even though both exchanges covered the Bloomfield area. On its own initiative, therefore, on December 18, 1969 the company changed 429--9377 to 748--8869 and left the auxiliary line 748--4933 unchanged. The physical work to achieve the result was done at the company's central office, not at Petillo's home. The company simply sent him the new number plates to be placed on the telephones. After the change was made at the central office, Mrs. Waski said, if someone called the old number 429--9377 (which was never assigned thereafter to anyone else), an intercept operator would come in and advise him that the number called was not a working number, or perhaps a female computerized voice would deliver the message. Thus, no connection would be made with the dialed number, unless the subscriber had requested a transfer of calls to the new number, in which event the transfer would be made. However, the witness said such an arrangement was not requested in this case. But, even though not a telephone engineer, she did indicate, perhaps relying on her 27 years as a company employee, that some skilled person by manipulating the wires might be able to circumvent the interception. Although such inexpert statement cannot carry much probative force, it does excite suspicion as to the significance of the wire which the officers found pulled out of the kitchen telephone, and leading across the kitchen floor down the steps into the basement, where it was connected to a terminal box. Why that wire leading to the one telephone (of the five on the premises) was pulled out is not explained. Plainly, however, it was being used in the bookmaking operation, because when a detective reconnected it, bets began to come in over the telephone. It seems likely that if the officers were aware at that time of the change of 429--9377 to 748--8869, they would have investigated the wiring and connections more carefully.

Following argument the trial judge denied the motion to suppress. He found that perjury on the part of Trooper Gauthier had not been established with respect to his assertions that bets had been placed over telephone number 429--9377 on March 4 and 5, 1970; and further that even if the references to such telephone calls were eliminated from Gauthier's affidavit, in his judgment probable cause existed for the issuance of the search warrant by the Law Division judge. We agree with that determination, but for future guidance...

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