It is a fourth degree crime if a person is engaging in
bookmaking to the extent that he or she has received or
accepted three or more bets in any two week period. Id.
In all other cases, promoting gambling is a disorderly
persons offense. Id. However, notwithstanding that
gradation, jurisdiction lies in the Superior rather than
the Municipal Court. See N.J.S.A. 2C:37-8.
C. Player Defense
It is a defense to a prosecution under N.J.S.A. 2C:37-
2a that the person participated only as a player. It shall
be the burden of the defendant to prove by clear and
convincing evidence his status as such player. N.J.S.A.
2C:37-2c.
While the player defense applies to a bettor or
contestant, it also applies to a person who sets up or assists
a social game of chance for which he receives no fee,
remuneration or share in the profits of the gambling
enterprise. See N.J.S.A. 2C:37-1c. The burden rests with
the defendant to prove by clear and convincing evidence
that he is a player. See State v. Fischer, 183 N.J. Super. at
84 (upholding the constitutionality of placing the
burden on defendant). One trial court upheld the
defense as constitutional in response to a claim that it
impermissibly placed the burden of disproving an
element of the offense on the defendant. Id. at 84-85.
IV. POSSESSION OF GAMBLING RECORDS
A. Offense Defined
N.J.S.A. 2C:37-3a makes per se possession of
gambling records an offense. The offense is directed at
writings, papers, instruments or articles used either in
bookmaking or a lottery enterprise. N.J.S.A. 2C:37-
3a(1) and (2). The essential elements of the offense are
possession and knowledge. See State v. Brown, 67 N.J.
Super. 450, 454 (App. Div. 1961).
Possession requires intentional control and domin-
ion, that is, the ability to affect the item over time, see
N.J.S.A. 2C:2-1; see also, State v. Labato, 7 N.J. 138, 148
(1951); cf. State v. Davis, 68 N.J. Super. at 455.
Possession extends to any person, not merely one taking
bets. State v. Purdy, 52 N.J. at 308; State v. Rucker, 46 N.J.
Super. at 171. The two types of possession are actual or
manual possession and constructive possession. Actual
possession exists when the defendant has the object on his
person at a given time and has knowledge of its character.
State v. Brown, 67 N.J. Super. at 455. Constructive
possession exists when the property, while not physically
located on the person of the defendant, is so located that
the defendant is able to exercise control over it. State v.
McCoy, 116 N.J. 293, 299 (1989).Possession may be sole or joint. Possession is joint
when two or more persons share actual or constructive
possession of an object. This means that they knowingly
share control over it. See State v. McCoy, 116 N.J. at 299;
State v. Rajnai, 132 N.J. Super. 530, 536 (App. Div.
1975).Knowledge of possession of a gambling record is
intent to possess that record. State v. Labato, 8 N.J. at
149-150. Knowing possession of an illegal record
requires only a general relationship between the items
possessed and the gambling activity, that is, an item that
pertains in any way to gambling, including either one’s
betting record or a special type of paper used to record
gambling activity. N.J.S.A. 2C:37-3a; see also, State v.
Purdy, 51 N.J. at 310; State v. Snow, 149 N.J. Super. 276,
281 (App. Div. 1977), rev’d in part o.g., 177 N.J. (1978).
How long a person possessed a record is relevant to his
knowledge. See State v. Lanzo, 44 N.J. 560, 566 (1965).
Inferences may assist the prosecution in proving
defendant’s knowledge. State v. Gawronski, 9 N.J. Super.
51, 53 (App. Div. 1950).For offenses relating to bookmaking, this section
specifically denominates certain proscribed papers,
which include any paper or paper product in sheet form
chemically converted to nitrocellulose having explosive
characteristics including as well as any water soluble
paper or paper derivative in sheet form. N.J.S.A. 2C:37-
3a(1).For offenses relating to a lottery, this section
proscribes the possession of writings, papers, instruments
or articles of a kind commonly used in the operation,
promotion or playing of a lottery or policy scheme or
enterprise. N.J.S.A. 2C:37-3a(2); see also, State v.
Mollica, 214 N.J. Super. 658, 660-62 (Law Div. 1986),
aff’d., 217 N.J. Super. 95 (App. Div. 1987), rev’d on other
grounds, 114 N.J. 329 (1989).For examples of writings held to constitute such
gambling records, see State v. Fiola, 242 N.J. Super. at
244-45 (lottery slips for lotteries legally run by other
states); State v. Sanders, 212 N.J. Super. 599 (App. Div.
1986) (records involving establishment of a pyramid
scheme), rev’d on other grounds, 107 N.J. 609 (1987);
State v. Mungioli, 69 N.J. Super. 365, 370 (App. Div.
1961) (carbon paper copies with lottery bets); State v.