State v. Barrise

• Decision Date: 09 May 1980
• Citation: 414 A.2d 989,173 N.J.Super. 549
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Nicholas BARRISE, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Concetta DE HART, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 549

173 N.J.Super. 549

414 A.2d 989

STATE of New Jersey, Plaintiff-Respondent, v. Nicholas BARRISE, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Concetta DE HART, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 30, 1979.

Remanded Nov. 14, 1979.

Reargued April 29, 1980.

Decided May 9, 1980.

Barry G. Evertz, Hackensack, for defendant-appellant Nicholas barrise.

Donald S. Goldman, East Orange, for defendant-appellant Concetta DeHart.

Michael O. Albertine, Newark, Asst. Essex County Prosecutor, for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; Donald S. Coburn, Essex County Prosecutor, of counsel; Marc J. Friedman, Deputy Atty. Gen., on brief).

Before Judges FRITZ, KOLE and LANE.

The opinion of the court was delivered by

KOLE, J. A. D.

In our opinion of November 14, 1979 we remanded this matter for a plenary hearing and findings on the issue of whether the State had provided a "satisfactory explanation" for the 40-day delay in sealing the tapes obtained during the wiretap. See State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979) (hereafter Cerbo ). We reserved for determination the questions of whether defendants had waived their right to raise the sealing requirement issue at trial by not incorporating it in their pretrial motions to suppress and whether Cerbo should be applied to this case which was pending on direct appeal when Cerbo was decided.

The trial judge conducted the hearing and has submitted her findings. Further oral argument was held on the remanded issue.

We have reviewed the proofs at the remand hearing and have concluded that the factors in the record on which the trial judge relied plainly do not suffice to sustain her ultimate determination that the State had "met its burden of proving a satisfactory explanation for the delay in sealing (the tapes) under N.J.S.A. 2A:156A-14 in this case." Hence that determination was erroneous. See Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J.Super. 332, 382 A.2d 933 (App.Div.1978), aff'd o. b. 78 N.J. 320, 394 A.2d 360 (1978).

The electronic surveillance, ordered by Judge Blake, was terminated on August 1, 1974. He was one of seven judges authorized by the Supreme Court to grant such orders. The tapes were not sealed by Judge Blake until September 10, 1974 a period of 40 days from the date of termination of the surveillance.

We cannot fault the prosecutor for failing to seek out an authorized judge other than Judge Blake to obtain immediate sealing. N.J.S.A. 2A:156A-14 on its face seems to contemplate sealing only by the judge issuing the wiretap order by providing that immediately upon expiration of the order, the tapes "shall be transferred to the judge issuing the order and sealed under his direction." We point out that this interpretation of the statute is erroneous and that notwithstanding the foregoing statutory language, sealing can be, and in the absence of availability of the issuing judge must be, obtained from another authorized judge. See United States v. Poeta, 455 F.2d 117, 122 (2 Cir. 1972), cert. den. 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972).

The problem here, however, involves the failure of the prosecutor's office to seek out Judge Blake with sufficient dispatch for sealing purposes, assuming that it was justified in not availing itself of another authorized judge for that task.

We agree with the trial judge's findings, predicated on sufficient credible evidence, that the prosecutor's office acted in good faith throughout on the assumption, which we hold to be unwarranted in the light of Cerbo, that the sealing of the tapes was not an urgent matter; that the integrity of the tapes was preserved throughout the period; that there was no tampering with the tapes, and that the failure to seek prompt sealing in no wise prejudiced defendant or benefited the State.

However, we read Cerbo, including its reliance on United States v. Gigante, 538 F.2d 502 (2 Cir. 1976), to hold that the aggregate of these factors does not justify a finding of a satisfactory explanation for a failure to obtain immediate sealing of tapes under the statute. Thus, under Cerbo the good faith motives of the State, the presence or absence of any tactical advantages gained by the State or prejudice accruing to the defendant, the lack of any evidence of alteration of or tampering with the tapes and the fact that adequate procedures were taken to preserve the integrity of the tapes are not relevant to the issue of a satisfactory explanation for the delay in sealing. Nor is it of any significance under Cerbo that substantial paper work was required before presentation of the tapes for sealing. And the prosecutor's view here that immediate sealing of the tapes was not an urgent matter which would result in the sanction of suppression is plainly not an adequate explanation for the 40-day delay in the light of Cerbo and this, despite his evident reliance for this position on such authorities as the United States District Court opinion in United States v. Falcone, 364 F.Supp. 877, 894 (D.N.J.1973). ¹ See State v. Burstein, 172 N.J.Super. 388, 412 A.2d 452 (App.Div.1980).

We hold that under the circumstances of this case there was no satisfactory explanation for the sealing dereliction by the State. The State did not act with the dispatch and reasonable diligence required to meet the statutory sealing requirements of N.J.S.A. 2A:156-14.

We do not agree with the judge's finding that for the prosecutor's office to have taken the "secured package (the tapes) from its locked vault and to have driven it 11/2 hours to Judge Blake at his summer residence in another part of the State for official signature and sealing would have been an extraordinary emergency measure which may have caused the tapes to have been lost or otherwise adversely affected."

We also do not agree with the determination that the prosecutor's office had adopted a policy not to disturb Judge Blake during his vacation. The credible evidence is to the contrary. The proofs show that Judge Blake, during his period of vacation in Spring Lake, New Jersey, from August 1 and until he resumed his regular judicial duties on September 9, 1974 (from September 2 to September 6 he attended the New Jersey Judicial Conference), made himself available to the prosecutor's office and that that office knew of such availability. On August 29, 1974, at the request of the prosecutor's office, he authorized a wiretap in another case. It is also evident that there was no directive from him forbidding the prosecutor's office to notify him of the need for his services in connection with the sealing of tapes or otherwise while on vacation, his office was staffed during his absence, and he in fact did visit his office during the month of August although he did not give any notice as to when he would be present there.

In any event, if such a policy did exist, it was clearly erroneous and circumvented the purpose of N.J.S.A. 2A:156A-14 as discussed in Cerbo. We also see no reason for the State's not endeavoring to reach Judge Blake on the weekend of August 31, 1974, when he was on emergent duty, or on September 9, the first day he returned to work.

But our conclusion that there was no satisfactory explanation for the State's failure to comply with the statute's sealing requirements in this case is not fatal to the admissibility of the tapes and thus does not justify a reversal of the convictions.

We hold that Cerbo's restrictive interpretation of the immediate sealing requirements of the statute, which would result in suppressing tapes as evidence where there has been an unexplained failure of prompt sealing, should not be applied retroactively to wiretaps ordered and completed prior to the date Cerbo was decided that is, February 2, 1979. We believe that State v. Howery, 80 N.J. 563, 404 A.2d 632 (1979) (hereafter Howery ) and the philosophical underpinnings of Cerbo mandate this conclusion.

It is true that Cerbo stated that on direct appeal a reversal would have been warranted by reason of the introduction into evidence of tapes violating the sealing requirements; that the sealing requirements of N.J.S.A. 2A:156A-14 are an important component of the protective measures governing the conduct of wiretapping under the Wiretap Act; that the "significance of these particular safeguards is to be appreciated in the broader protective framework structured by the Wiretap Act, which calls for court involvement in and continuing judicial supervision of all aspects of wiretapping and electronic surveillance . . . ;" that the "authenticity and integrity of the wiretap tapes can be assured only through the tight controls encompassed by the transfer and sealing provisions of the Wiretap Act," and that the intrusion into individual rights of privacy effected by the Wiretap Act must be strictly interpreted and meticulously enforced. Cerbo, supra, 78 N.J. at 602-604, 397 A.2d at 675.

But Cerbo also indicated that the suppression remedy as to failure to seal does not take precedence over countervailing reasons firmly founded in the efficient and fair administration of criminal justice pursuant to the court rules, such as R. 3:22-4 relating to post-conviction relief. In our view such reasons exist here as well, so as to preclude reversal of these convictions where the sealing dereliction occurred prior to the date Cerbo was decided.

Despite the importance attached to strict judicial supervision of the governmental intrusion into privacy rights permitted by the Wiretap Act, the court did not consider the delay in sealing of such significance or worthiness as to justify granting post-conviction relief on that ground. We note that the court has not hesitated to grant such relief even if it would otherwise be barred where the matter is of such importance to a defendant that to deny it would be fundamentally unjust. See State v. Clark, 65 N.J. 426, 323 A.2d...