Pinsky, 6 N.J. Super. 90, 93 (App. Div. 1950) (lists of
moneys owed to and from players); State v. Carrano, 27 N.J.
Super. 382, 385 (App. Div. 1953) (lists of customers’
names may be records of a gambling enterprise).
B. Defenses
The Code establishes two defenses to a prosecution
under this section. For each, the burden rests with the
defendant to prove the defense by clear and convincing
evidence. N.J.S.A. 2C:37-3b.
The first defense applies only to gambling records
commonly used in a lottery or policy operation. The
defendant must establish that the records represented his
own play or bets and that the number of plays or bets do
not exceed ten. N.J.S.A. 2C:37-3b(1).
The second defense applies both to a prosecution for
possession of bookmaking and possession of lottery or
policy records. The defendant must establish that the
writing, paper, instrument, or article he possesses in fact
was neither used nor intended to be used in a gambling
operation. N.J.S.A. 2C:37-3b(2).
C. Grading
The degree of the offense is a function of the type,
number and amount of the bets or chances listed in the
record. N.J.S.A. 2C:37-3c.
Possession of gambling records is a third degree
offense, subject to a fine of not more than $35,000,
notwithstanding the provisions of N.J.S.A. 2C:43-3,
when the writing, paper, instrument or article:
- constitutes, reflects or represents more than five
bets totaling more than $1,000 in a bookmaking scheme,
N.J.S.A. 2C:37-3c(1); or - constitutes, reflects or represents more than 100
plays or chances in a lottery or policy scheme or
enterprise. N.J.S.A. 2C:37-3c(2).
Otherwise, possession of gambling records is a
disorderly persons offense subject to a fine of not more
than $20,000 notwithstanding the provisions of N.J.S.A.
2C:43-3 and any other disposition authorized by
N.J.S.A. 2C:43-2b.
There is no right to trial by jury for a disorderly
persons offense of possession of a gambling record even
though the statute authorized a $20,000 maximum fine,
N.J.S.A. 2C:37-3c, and prosecution in Superior Court is
further required. N.J.S.A. 2C:37-8; see also State v.
Tenriero, 183 N.J. Super. 519, 521-24 (Law Div. 1982);
R. 3:1-5.V. MAINTENANCE OF A GAMBLING RESORT
The Code establishes two fourth degree offenses
related to maintaining a gambling resort.The first offense concerns a person who has a
substantial proprietary or other authoritative interest
over a premises and permits its use for the promoting of
a gambling operation or the possession of gambling
records. N.J.S.A. 2C:37-4a. The person must know his
premises are used for gambling and both intend that
other persons use the premises for that purpose and that
he should profit from that activity. Id.; see also, State v.
Costa, 11 N.J. at 246. In addition to all other dispositions
available, the court may impose on the person convicted
of this offense a fine of not more than $25,000. Id. The
offense has been committed when an owner shares in the
proceeds of a gambling operation by permitting his
premises to be used as a numbers bank or office for the
tallying of a numbers operation. State v. Kaiser, 74 N.J.
Super. 257, 264-70 (App. Div. 1962), certif. denied, 38
N.J. 310, cert. denied, 376 U.S. 950 (1964). However,
a private club maintained by contributions of its
members who engage in gambling activity therein may
not violate this section because the premises are not open
to the general public. See Chomatopoulos v. Roma DeNotte
Social Club, 212 N.J. Super. 447, 449 (Law Div. 1985).The second offense concerns a person who has a
substantial proprietary or other authoritative interest
over a premises that is held open to the general public,
and permits its use for the purposes of a gambling
activity. N.J.S.A. 2C:37-4b. Money or property does
not have to pass to the person with control over premises
open to the general public. Id.; see also, State v. Sachs, 69
N.J. Super. 566, 570, 574 (App. Div. 1961). For
examples of premises that have been used for the purposes
of gambling activity, see State v. Schneiderman, 20 N.J.
422, 424 (1956) (premises where people bet on a wheel
of chance); State v. Costa, 11 N.J. at 239 (garage used for
running a dice game); State v. Gallo, 128 N.J.L. 172, 179
(Sup. Ct.), aff’d., 129 N.J.L. 52 (E. & A. 1942) (premises
used for a pool room); State v. Tuzenew, 15 N.J. Misc.
584, 585 (Sup. Ct. 1937), aff’d. sub nom., State v.
Suckow, 120 N.J.L. 190, 198 (E. & A. 1938) (premises
used for a horse race betting parlor); State v. Ford, 86