Judgment, Supreme Court, New York County (James Leif, J.), entered October 29, 1990, convicting defendant, after a bench trial, of the crimes of promoting gambling in the first degree (Penal Law § 225.10 [1]), possession of gambling records in the first degree (Penal Law § 225.20 [1]), and possession of a gambling device (Penal Law § 225.30 [2]), and sentencing him on the promoting gambling count to pay a $5,000.00 fine and the mandatory assessment, and to an unconditional discharge, and on the possession of gambling records and possession of a gambling device counts to an unconditional discharge on each count, is affirmed.
On December 3, 1988, defendant was arrested, during the course of an investigation, by the Manhattan South Public [304] Morals Division (PMD) of the New York City Police Department (Department), of illegal gambling activities, allegedly being conducted in a commercial office building (premises), located at 575 Eighth Avenue, New York County.
Thereafter, in a three count indictment, filed May 17, 1989, a Grand Jury charged defendant, and Messrs. Alfred Paccione and Alfred Sollecito, with committing the crimes of promoting gambling in the first degree, possession of gambling records in the first degree, and possession of a gambling device.
Following arraignment, pleas of not guilty, the completion of motion practice, and the execution of waivers of trial by jury, in August 1990, a bench trial of the defendant and his two co-defendants commenced.
The People’s principal witness was Sergeant George McFadden (Officer McFadden), who had been a member of the Department for more than seventeen years. Officer McFadden testified, in substance, that, prior to the time of defendant’s arrest, he had been assigned to the PMD for approximately one year, immediately prior to that assignment he had been trained to investigate, inter alia, cases involving illegal sports wagering and bookmaking, and, thereafter he had directed ten illegal gambling investigations and had assisted on more than twenty others.
In the late fall of 1988, Officer McFadden stated that, as a result of information received from Florida law enforcement authorities, indicating that a certain New York City telephone number was being used to receive illegal gambling wagers, members of the Department contacted the telephone company and learned that the address assigned to that telephone number was located on 23rd Street, Manhattan, and, when he went to that location, he discovered that the subject calls were being forwarded from there to Room 406 of the premises.
Subsequently, on Friday, December 2, 1988, Officer McFadden visited the premises twice, during the hours when, according to his police experience, bookmaking would be most active. While on the first visit, between noon and 2:00 p.m., he overheard no sound of activity emanating from inside Room 406, and on his second visit, between 6:00 p.m. and 7:00 p.m., as he listened through the door of that room, he overheard telephones ringing, a clicking noise and male voices. In fact, he heard one voice giving a "line”, or point spread, on specific sporting events, involving Seattle, the Nets and the Giants, and apparently a bet was accepted on the Giants for a "dime”, meaning a thousand dollars.
[305] After leaving those premises, Officer McFadden, inter alia, consulted the "Nevada Sports Line”, a published booklet, listing the names of different sports teams, and providing the point spreads established by the casinos in Nevada for different sporting events, and point spreads contained in that publication coincided with point spreads that he had overheard being referred to in Room 406.
Based upon his investigation, the following day, Saturday, December 3rd, Officer McFadden obtained a warrant to search Room 406, and later that same day, at around 6:00 p.m., he, together with several other officers, entered the premises to execute said warrant. When they reached the fourth floor, which, besides Room 406, contained eight to ten other offices, Officer McFadden listened through the doors of those other offices, and, since he heard no activity, he concluded that they were empty. In contrast, when he listened at the door to Room 406, he heard a telephone ringing, a clicking noise and a male voice. Thereafter, Officer McFadden and the accompanying officers stationed themselves in a stairwell, some 15 feet away from Room 406. Subsequently, while the officers waited there, Officer McFadden testified that he heard someone exit a room, and he believed that person came from Room 406, since his earlier check had indicated all the other offices were empty. As that person, who was later identified as the defendant, walked down the fourth floor hallway, and passed where the officers were stationed, they identified themselves as police officers and arrested him.
Thereafter, Officer McFadden testified that the officers took defendant with them, when they executed the search warrant, by entering Room 406 through the front door, which was open.
The dimensions of Room 406 were about eight by twelve feet. Officer McFadden stated that there was a television set in the corner, a desk with papers on it, eight tape recorders containing cassette tapes were on the floor, and those tape recorders were connected to a box, which was wired to five telephones. In the middle of the room there was a large, black table, on top of which were the five telephones, a "validator clock”, line sheets and tally sheets. Additional cassette tapes, line sheets and tally sheets were in a box on the floor. Around the table were four or five chairs, and on the table were 137 time-stamped betting slips, piled in groups in front of each chair.
Officer McFadden testified that three of those chairs were [306] occupied, by the two co-defendants, who were talking on the telephones, and a third man named Mr. Lettena. Further, Officer McFadden stated that the defendant sat down in one of the empty chairs, which had a jacket hanging on the back of it, and, the defendant picked up that jacket and put it on, when he, together with the co-defendants and Mr. Lettena, later left the premises with the officers.
While the police officers were still in the room, the telephones continued to ring, and when Officer McFadden answered one of them, the caller attempted to place a bet.
Admitted into evidence as People’s exhibits were the telephones, tape recorders, "validator clock”, line sheets, tally sheets, cassette tapes, and betting slips.
Besides Officer McFadden, two other PMD Officers testified for the People.
First, Sergeant Vincent Didonato stated, in pertinent part, that he had listened to some of the tapes that had been removed from inside the tape recorders, and the information recorded on those tapes corresponded with the information contained on the recovered betting slips. Further, he testified that recorded on the 137 seized betting slips were approximately 446 wagers, amounting to approximately $144,880.00.
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Judgment, Supreme Court, New York County (James Leif, J.), entered October 29, 1990, convicting defendant, after a bench trial, of the crimes of promoting gambling in the first degree (Penal Law § 225.10 [1]), possession of gambling records in the first degree (Penal Law § 225.20 [1]), and possession of a gambling device (Penal Law § 225.30 [2]), and sentencing him on the promoting gambling count to pay a $5,000.00 fine and the mandatory assessment, and to an unconditional discharge, and on the possession of gambling records and possession of a gambling device counts to an unconditional discharge on each count, is affirmed.
On December 3, 1988, defendant was arrested, during the course of an investigation, by the Manhattan South Public [304] Morals Division (PMD) of the New York City Police Department (Department), of illegal gambling activities, allegedly being conducted in a commercial office building (premises), located at 575 Eighth Avenue, New York County.
Thereafter, in a three count indictment, filed May 17, 1989, a Grand Jury charged defendant, and Messrs. Alfred Paccione and Alfred Sollecito, with committing the crimes of promoting gambling in the first degree, possession of gambling records in the first degree, and possession of a gambling device.
Following arraignment, pleas of not guilty, the completion of motion practice, and the execution of waivers of trial by jury, in August 1990, a bench trial of the defendant and his two co-defendants commenced.
The People’s principal witness was Sergeant George McFadden (Officer McFadden), who had been a member of the Department for more than seventeen years. Officer McFadden testified, in substance, that, prior to the time of defendant’s arrest, he had been assigned to the PMD for approximately one year, immediately prior to that assignment he had been trained to investigate, inter alia, cases involving illegal sports wagering and bookmaking, and, thereafter he had directed ten illegal gambling investigations and had assisted on more than twenty others.
In the late fall of 1988, Officer McFadden stated that, as a result of information received from Florida law enforcement authorities, indicating that a certain New York City telephone number was being used to receive illegal gambling wagers, members of the Department contacted the telephone company and learned that the address assigned to that telephone number was located on 23rd Street, Manhattan, and, when he went to that location, he discovered that the subject calls were being forwarded from there to Room 406 of the premises.
Subsequently, on Friday, December 2, 1988, Officer McFadden visited the premises twice, during the hours when, according to his police experience, bookmaking would be most active. While on the first visit, between noon and 2:00 p.m., he overheard no sound of activity emanating from inside Room 406, and on his second visit, between 6:00 p.m. and 7:00 p.m., as he listened through the door of that room, he overheard telephones ringing, a clicking noise and male voices. In fact, he heard one voice giving a "line”, or point spread, on specific sporting events, involving Seattle, the Nets and the Giants, and apparently a bet was accepted on the Giants for a "dime”, meaning a thousand dollars.
[305] After leaving those premises, Officer McFadden, inter alia, consulted the "Nevada Sports Line”, a published booklet, listing the names of different sports teams, and providing the point spreads established by the casinos in Nevada for different sporting events, and point spreads contained in that publication coincided with point spreads that he had overheard being referred to in Room 406.
Based upon his investigation, the following day, Saturday, December 3rd, Officer McFadden obtained a warrant to search Room 406, and later that same day, at around 6:00 p.m., he, together with several other officers, entered the premises to execute said warrant. When they reached the fourth floor, which, besides Room 406, contained eight to ten other offices, Officer McFadden listened through the doors of those other offices, and, since he heard no activity, he concluded that they were empty. In contrast, when he listened at the door to Room 406, he heard a telephone ringing, a clicking noise and a male voice. Thereafter, Officer McFadden and the accompanying officers stationed themselves in a stairwell, some 15 feet away from Room 406. Subsequently, while the officers waited there, Officer McFadden testified that he heard someone exit a room, and he believed that person came from Room 406, since his earlier check had indicated all the other offices were empty. As that person, who was later identified as the defendant, walked down the fourth floor hallway, and passed where the officers were stationed, they identified themselves as police officers and arrested him.
Thereafter, Officer McFadden testified that the officers took defendant with them, when they executed the search warrant, by entering Room 406 through the front door, which was open.
The dimensions of Room 406 were about eight by twelve feet. Officer McFadden stated that there was a television set in the corner, a desk with papers on it, eight tape recorders containing cassette tapes were on the floor, and those tape recorders were connected to a box, which was wired to five telephones. In the middle of the room there was a large, black table, on top of which were the five telephones, a "validator clock”, line sheets and tally sheets. Additional cassette tapes, line sheets and tally sheets were in a box on the floor. Around the table were four or five chairs, and on the table were 137 time-stamped betting slips, piled in groups in front of each chair.
Officer McFadden testified that three of those chairs were [306] occupied, by the two co-defendants, who were talking on the telephones, and a third man named Mr. Lettena. Further, Officer McFadden stated that the defendant sat down in one of the empty chairs, which had a jacket hanging on the back of it, and, the defendant picked up that jacket and put it on, when he, together with the co-defendants and Mr. Lettena, later left the premises with the officers.
While the police officers were still in the room, the telephones continued to ring, and when Officer McFadden answered one of them, the caller attempted to place a bet.
Admitted into evidence as People’s exhibits were the telephones, tape recorders, "validator clock”, line sheets, tally sheets, cassette tapes, and betting slips.
Besides Officer McFadden, two other PMD Officers testified for the People.
First, Sergeant Vincent Didonato stated, in pertinent part, that he had listened to some of the tapes that had been removed from inside the tape recorders, and the information recorded on those tapes corresponded with the information contained on the recovered betting slips. Further, he testified that recorded on the 137 seized betting slips were approximately 446 wagers, amounting to approximately $144,880.00.
Second, Sergeant Daniel Hoffer stated, in pertinent part, that in his expert opinion, on the basis of, inter alia, examination of the recovered line sheets and tally sheets, Room 406 was a standard bookmaking office, designed to receive bets by telephone. Further, Sergeant Hoffer testified that a "validator clock” is usually used in bookmaking operations to record the time a bettor places a bet on a horse, so that the bookmaker can verify that the bet was placed before the race began.
Criminal Term, after hearing the testimony, and examining the evidence, found the defendant, as well as his co-defendants, guilty of all counts, and sentenced defendant, as mentioned supra.
On appeal, the defendant contends that there was no probable cause to justify his arrest, and therefore the evidence, consisting of the gambling paraphernalia, recovered in Room 406, and the testimony concerning the jacket, should have been suppressed as the product of an illegal arrest. We disagree, since the recovered gambling paraphernalia, and the testimony about the jacket, resulted solely from the execution of a search warrant, whose validity defendant does not contest, and not as a result of defendant’s arrest (United States v Crews, 445 US 463, 474 [1980]; People v Arnau, 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]).
[307] The United States Supreme Court, in United States v Crews (supra, at 474), stated that "the illegality of [defendant’s] detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct”. Similarly, the Court of Appeals of this State, in People v Arnau (supra, at 35), stated "that where the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct”.
Second, the defendant argues that he was not proven guilty beyond a reasonable doubt, and that at most the People merely showed that he was present in the room. To the contrary, based upon our review of the record, and viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), we find that Criminal Term was justified in finding the defendant guilty of being a participant in the flourishing illegal gambling activities being conducted in Room 406.
The dissent cites the cases of People v Lunsford (46 AD2d 612 [1974]) and People v Diaz (54 AD2d 543 [1976]) in support of the contention that the defendant’s guilt was not proven beyond a reasonable doubt. After examining those cases, we find that they are readily distinguishable. While we agree with this Court’s holding in the case of People v Lunsford (supra), wherein it was held that the mere presence of the defendant in that case in a residential apartment, where gambling records were found, was insufficient to establish his guilt beyond a reasonable doubt, we note that herein the facts are vastly different, since they conclusively demonstrate more than defendant’s mere innocent presence in Room 406, where a highly sophisticated bookmaking operation was being conducted. The evidence requires the appropriate conclusion that the defendant was an active participant. Further, the case of People v Diaz (supra) involved a conviction for the crimes of grand larceny in the second degree and illegal possession of a vehicle identification number plate, and not a conviction for gambling offenses.
In reinstating a conviction for the crimes of promoting gambling in the first degree, and for the possession of gambling records in the first degree, a unanimous Appellate Division significantly stated, in pertinent part, "[t]he evidence indicates that the verdict was based on more than defendant’s 'mere presence’ at the time the apartment was searched (cf. [308] People v Lunsford, 46 AD2d 612; People v Diaz, 54 AD2d 543). There was sufficient evidence, both direct and circumstantial, to connect defendant with the gambling operations * * * Although defendant was never seen actually receiving a wager, he was seen passing from the storefront to the apartment building on several occasions, with slips of white papers in his hand * * * Considering all of the facts in this case, including the presence of the policy slips generally associated with an illegal gambling operation, it was reasonable for the jury to infer that defendant was an active participant in the gambling operations” (People v Fortunato, 89 AD2d 610, 610-611 [1982]).
Finally, defendant contends that Criminal Term erred in denying, without a hearing, his speedy trial motion (CPL 30.30). After examining the record, since "we cannot say that the trial court’s decision to deny defendant’s statutory speedy trial motion without a full evidentiary hearing was improper”, we reject defendant’s contention as meritless (People v Lomax, 50 NY2d 351, 358 [1980]; see also, People v Gruden, 42 NY2d 214, 217-218 [1977]). Concur—Sullivan, J. P., Ross and Asch, JJ.