State v. Braeunig

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: HANDLER
• Citation: State v. Braeunig, 122 N.J.Super. 319, 300 A.2d 346 (N.J. Super. App. Div. 1973)
• Decision Date: 05 February 1973
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Raymond BRAEUNIG et al., Defendants-Appellants.

Page 319

122 N.J.Super. 319

300 A.2d 346

STATE of New Jersey, Plaintiff-Respondent, v. Raymond BRAEUNIG et al., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 30, 1972.

Decided Feb. 5, 1973.

Patrick McGahn, Atlantic City, for defendants-appellants Braeunig, Martin, Miller, Flynn and Lakes (McGahn & Friss, Atlantic City, attorneys).

Sidney M. Goodelman, Atlantic City, for defendant-appellant Richards.

John A. Brogan, Deputy Atty. Gen., for plaintiff-respondent (George F. Kugler, Jr., Atty. Gen., attorney).

Before Judges FRITZ, LYNCH and HANDLER.

The opinion of the court was delivered by

HANDLER, J.S.C., Temporarily Assigned.

Defendants were indicted for conspiracy to violate the gambling laws and for substantive gambling offenses. They were found guilty by a jury on all counts after a ten-day trial and were sentenced to various prison terms, fines and payment of costs. This appeal ensued.

The prosecution originated with an investigation into bookmaking activities in Cape May and Atlantic Counties in March 1969. During the course of that investigation a member of the New Jersey State Police, acting as an undercover agent, observed and overheard Peter Liberino place a telephone call to a particular telephone number from a public telephone located in his bar in Cape May and relate bets which had previously been given to him orally by other persons. Such activity by Liberino was observed several times between March 4, 1969 and May 9, 1969. The telephone number he called was traced to a particular subscriber. Pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A--1 et seq. the Attorney General authorized an application for an order to intercept communications from this telephone facility and such an order was entered on May 15, 1969. Electronic surveillance over this facility revealed gambling activities involving another telephone. There followed a series of similar court-authorized wiretaps over this and other telephones. The evidence accummulated from these successive electronic surveillances was gathered into applications for search and arrest warrants, the execution of which eventually led to the arrests of the defendants and their indictment on September 30, 1970.

I

Defendants assert initially that the New Jersey Wiretapping and Electronic Surveillance Control Act is unconstitutional. It has been determined that the act is constitutional. State v. Dye, 60 N.J. 518, 291 A.2d 825 (1972).

II

Defendants argue that the New Jersey Wiretapping and Electronic Surveillance Control Act in varying ways was 'illegally applied.' It is contended that the periods for wiretapping authorized in the respective orders were unnecessarily long. Each of the orders provided that 'said interception shall terminate no later than 30 days from the beginning of interception.' The maximum 30-day duration for the successive electronic surveillances, to be otherwise terminated as soon as practicable, in the context of the supporting applications reflect reasonable judicial determinations. Cf. State v. Christy, 112 N.J.Super. 48, 270 A.2d 306 (Cty.Ct.1970). There was, moreover, no overbroad discretion vested in the executing officers with respect to the termination of the interceptions over the subject facilities. See State v. Dye, Supra, 60 N.J. at 534--538, 291 A.2d 825.

It is also contended that the respective orders failed to describe the type communications or the identity of the persons whose communications were to be intercepted as required under N.J.S.A. 2A:156A--12(b) and (d). The orders did refer to the type of communications to be intercepted, namely, those 'evidentiary of such offenses' I.g., those 'relating to the offenses of bookmaking (N.J.S.A. 2A:112--3) and conspiracy (N.J.S.A. 2A:98--1 and 2) * * *.' The persons involved, although unknown, were adequately identified in terms of their anticipated involvement in the suspected gambling activities and their use of the particular telephone facilities to perpetrate these offenses. Cf. State v. Sidoti, 116 N.J.Super. 70, 280 A.2d 864 (Cty.Ct.1971) rev'd and remanded on other grounds 120 N.J.Super. 208, 293 A.2d 678 (App.Div.1972).

Defendants assert further that the orders permitting the interception of communications over certain of the telephones were invalid because there was a failure to satisfy N.J.S.A. 2A:156A--10(c). This provision requires a determination by the court 'on the basis of facts submitted by the applicant that there is * * * probable cause for belief that * * * (n)ormal investigative procedures with respect to such offenses have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.'

The order with respect to the Del Grande facility which was entered on June 4, 1969 (and renewed on July 3, 1969) was based upon an application and affidavit which set forth the actual or expected results of other investigative procedures. These indicated spot surveillances were unproductive and other measures, such as sustained surveillances, toll call analysis or personal interviews, were unlikely to succeed in revealing the substance of gambling communications or might endanger the investigator. A successive application and order included the Del Grande information and contained comparable determinations. Another order involving the Braeunig telephone was entered on July 11, 1969 by the same judge. The affidavit with respect to this tap contained selective results of the earlier interceptions and disclosed the utilization of the Braeunig telephone as an instrumentality in the gambling enterprise. While this affidavit did not explicitly relate that other investigative techniques had actually been utilized, it did reflect the conclusion that '(i)n order to more fully identify individuals associated with Ray and to determine their involvement in his bookmaking activities it will be necessary to intercept the telephone conversations of Ray.' Thus there was a basis for the court's critical determination that 'normal investigative procedures * * * reasonably appear to be unlikely to succeed * * * .' The statement in the order that such procedures had been tried was not literally accurate but, against the backdrop of this investigation, it appears to be an inadvertent omission and is not a fatal defect. We conclude that defendants' contentions on this point lack merit. See State v. Dye, Supra, 60 N.J. at 526, 291 A.2d 825.

Defendants also intimate without precise argument that certain telephones were the facilities of a husband and wife and therefore there was required to be shown 'a special need' for their tap under N.J.S.A. 2A:156A--11. In such a situation applying officers should be mindful of this requirement. But the issue has not been crystallized herein and the record is factually insufficient to support this contention. Cf. State v. Sidoti, Supra, 120 N.J.Super. at 213, 293 A.2d 678.

III

Defendants assert that the various wiretap orders were executed unlawfully in that there was a failure to comply with the directives set forth therein, as required by N.J.S.A. 2A:156A--12(f), Viz:

* * * No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act.

The State's rejoinder is that there was no duty on the part of executing officers to desist from the interception of apparently innocuous communications; that this statutory directive was satisfied since the State limited 'its surveillance to the daylight hours, the normal hours for gambling activity and that there is no showing that the wiretaps were conducted in bad faith.' Defendants point out, however, that they were denied effective discovery since the trial court refused to make all of the tapes and the logs or summaries thereof available to them and thus 'precluded them from determining the real extent of the invasion of privacy * * * and the extent of the violation of the statute.' Their complaints were also continued during trial.

The New Jersey Wiretapping and Electronic Surveillance Control Act contemplates reasonable discovery. N.J.S.A. 2A:156A--16 provides for the timely service of an 'inventory' upon persons named in a wiretap order as well as actual parties to intercepted communications. It states further that '(t)he court, upon the filing of a motion, may in its discretion make available to such person or his attorney for inspection such portions of the intercepted communications, applications and orders as the court determines to be in the interest of justice.' Elsewhere it is provided that there may be an exchange of intercepted communications between law enforcement officers for the proper performance of official duties. N.J.S.A. 2A:156A--17, subd. a. The contents of intercepted communications may also be disclosed in the course of any judicial criminal proceeding. N.J.S.A. 2A:156A--17, subd. b. In addition to disclosure and use for these specific purposes, '(t)he contents of any intercepted wire or oral communication, or evidence derived therefrom, may otherwise be disclosed or used only upon a showing of good cause before a court of competent jurisdiction.' N.J.S.A. 2A:156A--17, subd. c. Further '(t)he court, upon the filing of (a) motion (to suppress) by (an) aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication, or evidence derived therefrom, as the court determines to be in the interests of justice.' N.J.S.A. 2A:156A--21.

The historical antecedents to the...