State v. Tamburello

• Decision Date: 27 September 1961
• Docket Number: No. A--424,A--424
• Citation: 174 A.2d 11,69 N.J.Super. 166
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John TAMBURELLO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 166

69 N.J.Super. 166

174 A.2d 11

STATE of New Jersey, Plaintiff-Respondent, v. John TAMBURELLO, Defendant-Appellant.

No. A--424.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 8, 1961.

Decided Sept. 27, 1961.

Samuel D. Bozza, Newark, for appellant.

Brendan T. Byrne, Prosecutor of Essex County, Newark, for respondent (C. William Caruso, Sp. Legal Asst. Prosecutor, Newark, of counsel, on the brief).

Before Judges PRICE, SULLIVAN and LEONARD.

The opinion of the court was delivered by LEONARD, J.S.C. (temporarily assigned).

This is a criminal case. The defendant-appellant was convicted of bookmaking in the Essex County Court on November 7, 1960.

In support of its case the State produced Lt. Kenny, an Essex County Prosecutor's detective who testified that on April 14, 1959 at or about 12.55 P.M., he and several other detectives, armed with a search warrant, visited premises located at 1965 McCarter Highway, Newark, N.J. The defendant then resided in an apartment located on the third floor of said premises. Upon arriving at the third floor landing the witness met the defendant's wife who at that time had a clothes basket in her possession. The detectives obtained the apartment key from defendant's wife, unlocked the door to defendant's apartment, but met resistance. Upon gaining admittance the detectives found two Armstrong publications, a white pad and slip, several blank pads in the pantry and an automatic revolver and a gravity knife in the bedroom drawer. The lieutenant's qualifications as an expert on gambling and horse race betting were admitted and he identified the writing and insignia on said white pad and slip to be the names of various race tracks and the list of names of persons who bet on various horses and the amount of money bet thereon.

This witness further testified that four pieces of 2 4 lumber were found in the hall of said apartment; that they fit exactly when placed in a certain position with one placed under the door knob of the entrance door to prevent it from being opened from the outside.

Jerome DeStephano, an investigator working in the Essex County Prosecutor's Office, accompanied Lt. Kenny on this raid and, in addition to corroborating Lt. Kenny's testimony, testified that he found other account slips in the defendant's desk drawer. He further testified that while in the apartment he heard the telephone ring on four occasions and answered it. This witness was asked by the State to divulge said conversations. The defendant objected to these as being contrary to N.J.S. 2A:146--1, N.J.S.A. The judge overruled the defendant's objection and permitted the investigator to testify to the conversations which were as follows:

'The caller identified himself as Shoes, asked for Johnny and then said, 'Laurel, 2--5, $10.00, 10 DD; Lincoln, 11--5, 10 DD." This call was received at 1.38 P.M.

At 2.10 P.M. the witness received another call from presumably the same party, who again identified himself as Shoes, asked for Johnny and inquired as to the bet he had placed at 1.38. The witness responded '2 & 5, 11 & 5 $10.DD' and the party said 'O.K.' and hung up.

At 1.43 the witness received a call from a party who asked for Johnny and identified himself as Pete. The witness responded 'Go ahead' and the party said 'Fourth at Gulfstream, Star O'Lee, 7 at Gulfstream, Little Fritz 2, 4 reverse.'

The witness also received a phone call from a party who identified himself as Harry and asked for Johnny. The witness said 'Go ahead' and the witness thereafter did not hear anything.

The defense called the defendant's wife. She testified that her husband came home from work early that day for the purpose of taking their son to the doctor; that she left the apartment to do some laundry when she met four men in the hall who shoved her and ripped her dress and asked for the key to the apartment.

The defense then offered one Joseph Simmons as a witness. He stated that the defendant was employed by him on April 15, 1959 as a driver; that the defendant worked daily from 8.30 to 4.00 or 4.30 and was paid by check weekly.

Thereafter, one Zippo testified on behalf of the defense. He testified he had known the defendant for 20 years and did business with him, which consisted of the selling of certain commodities to the defendant who would in turn solicit separate individuals to whom he would resell these commodities.

The defendant's 14-year-old son testified he was home from school that day so his father could take him to the doctor. He explained that the pads found by the detectives were used by him for his school work. In regard to the three 2 4's found in the apartment, the defendant's son testified that he used two of them for his electric train platform and the third was used to bar the door in addition to the locks on the door.

The defendant denied being a bookmaker. He testified that the pads were used by his son; that he himself was a truck driver and worked from 8.30 to 4.30, and that, in addition, he sold commodities to various individuals. The defendant explained he stayed home from work on the day of said raid so he could take his son to the doctor. While in the apartment the four detectives broke in without identifying themselves. Once they had obtained admittance they searched the apartment and found a gun, a knife and an Armstrong & Turf Flash that he had purchased. He further testified that the long 2 4 found in the apartment was used by his wife when he was not at home.

I.

The defendant urges that the admission into evidence of the telephone conversation was error.

The statute which the defendant alleges was violated is the Wire Tap Statute, N.J.S. 2A:146--1, N.J.S.A.:

'Tapping telegraph or telephone lines; disclosing messages.

Any person who willfully and maliciously:

a. Cuts, breaks, taps or makes any connection with a telegraph or telephone line, wire, cable or instrument belonging to any other person; or

b. Reads, takes, copies, makes use of, discloses, publishes or testifies concerning a message, communication or report intended for any other person and passing over any such telegraph or telephone line, wire or cable in this state; or

c. Uses any apparatus unlawfully to do any of such acts--

Is guilty of a misdemeanor.'

Defendant argues section (b) of the above statute makes it illegal for the detective to disclose, publish or testify as to what he heard when he answered said telephone calls and hence said testimony should not have been received in evidence.

Similar telephone conversations were held admissible in State v. O'Donnell, 8 N.J.Super. 13, 16, 73 A.2d 207, 208 (App.Div.1950):

'The telephone conversations concerning the betting were admissible to show defendant's complicity in the offense. The only person at the place of the call to whom the designation 'Eddie' could refer was the defendant. The nature of the conversation made it competent as a material circumstance in the case. Of course, such evidence should be admitted with caution (because of the ease with which it may be counterfeited) and, should not be received at all, except when the circumstances rebut every suspicion that it may be spurious.'

In the case at bar, the four callers asked for Johnny, the defendant's name being John. He was the only John in the premises. Three of said calls concerned themselves with horse race bets and were therefore competent as material circumstances in this case. The circumstances therefore rebut every suspicion that they were spurious.

The defendant further argues that O'Donnell, supra, is distinguishable from the instant case in that the violation of the foregoing statute was not urged therein. That it was not so urged is true.

However, this statute has been interpreted. In State v. Vanderhave, 47 N.J.Super. 483, 490, 136 A.2d 296 (App.Div.1957), affirmed sub nom. State v. Giardina, 27 N.J. 313, 142 A.2d 609 (1958), the Appellate Division said:

'* * * It cannot be doubted that section (a), supra, inhibits the mechanical wire 'tap' of a telephone line or facility belonging to any other person, whereas section (b) deals with the taking or use of a message intended for any other person 'passing over any such * * * telephone line,' section (c) forbidding the use of any apparatus unlawfully to accomplish such acts. There was here, of course, no mechanical 'tap' * * *.

* * * we believe that the non-mechanical monitoring of such conversations cannot be classified as coming within the terms of the statute. We incline to the view that the forbidden appropriation of a message 'passing over any such * * * wire,' described in section (b) of the statute, refers back to a wire 'belonging to any other person' with which there has been the mechanical interference, or 'tap,' described in section (a) thereof.'

In State v. Giardina, supra, 27 N.J., at pages 316, 317, 142 A.2d, at page 611, Chief Justice Weintraub stated:

'Nor does subsection (b) apply * * *. It may also be that the quoted phrase of subsection (b) also means 'any such' telephone line as has been 'cut, broken, tapped or connected' with, in violation of subsection (a).

Thus we agree with the conclusion of the Appellate Division that our statute was not violated.'

Since it is manifest from the record that there was no Mechanical interference and that such mechanical interference is a Sine qua non of the statute's applicability, the defendant's argument on this point is deemed to be without merit.

II.

The defendant's final contention is that the receipt of his revolver and knife in evidence, over his objection, was erroneous and prejudicial. As stated before, they both were found in a dresser drawer in defendant's apartment.

Preliminarily to the question involved herein, it should be noted that at trial no reason was advanced for the admission of...