State v. Burstein

• Decision Date: 29 February 1980
• Citation: 172 N.J.Super. 388,412 A.2d 452
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Stuart BURSTEIN, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Matthew GREENHAUSE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 388

172 N.J.Super. 388

412 A.2d 452

STATE of New Jersey, Plaintiff-Respondent, v. Stuart BURSTEIN, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Matthew GREENHAUSE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 28, 1980.

Decided Feb. 29, 1980.

Gregory J. Aprile, Paterson, for defendant-appellant Stuart Burstein (Philip M. Saginario, Paterson, attorney).

Harvey Weissbard, West Orange, for defendant-appellant Matthew Greenhause (Isles, Newman & Weissbard, West Orange, attorneys).

Gage Andretta, Asst. Essex County Prosecutor, for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; Donald S. Coburn, Prosecutor of Essex County, of counsel).

Before Judges ALLCORN, MORGAN and FRANCIS.

The opinion of the court was delivered by

MORGAN, J. A. D.

Defendants Matthew Greenhause and Stuart Burstein appeal convictions of possession of CDS (marijuana) with intent to distribute (N.J.S.A. 24:21-19(a) (1)) and conspiracy to violate the narcotics laws (N.J.S.A. 24:21-24), on their pleas of guilty entered after denial of their motions to suppress the taped contents of court-ordered intercepted telephone conversations. The issues raised herein include the retroactivity of State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979), to electronic surveillance occurring before its date of decision, and if applicable, the impact of a suppression order on search warrants and wiretap orders based upon matters uncovered during the allegedly tainted wiretap.

The facts concerning the electronic surveillance, by wiretap of the phones of defendants Greenhause and Burstein, are essentially undisputed and officially documented. On December 2, 1977 an application for an order authorizing a wiretap on the telephone of defendant Greenhause was made to Judge Arthur Blake, Assignment Judge of Essex County. The affidavit submitted therewith, the details of which are irrelevant, sought a 20-day wiretap on a 24-hour-a-day basis. The requested order was issued on December 2, 1977 and authorized the requested 20-day wiretap of Greenhause's telephone with the following findings:

A special need exists to intercept wire communications over said facility on a twenty-four (24) hour basis, whenever it is determined by . . . surveillance that said facility is being used by . . . Greenhause . . . and other unidentified persons in furtherance of this illegal conspiracy.

The Greenhause wiretap began on December 2, 1977, the same day as the order authorizing it was issued. On December 7, 1977 another application for a wiretap was made because the monitored conversations suggested that Greenhause was changing his telephone number. The second application was also granted.

On December 21, 1977 the prosecutor's office applied for a ten-day extension of the wiretap order, averring that between December 2 and December 18, 64 "criminal" conversations were intercepted and recorded. Three such "typical" conversations were reproduced in the application. This application also requested a 24-hour-a-day surveillance authorization. The application was granted.

On December 28, 1977, while the Greenhause wiretap was still fully operative under the ten-day extension order, the prosecutor's office applied for and obtained a 20-day, 24-hour-a-day wiretap on defendant Burstein's telephone on the belief, based upon several of the intercepted Greenhause conversations, that Burstein was a CDS supplier of Greenhause.

The Burstein wiretap terminated on January 5, 1978. The Greenhause wiretap terminated on December 31, 1977. On January 5, 1978, the day the Burstein wiretap terminated and approximately five days after termination of the Greenhause wiretap, the prosecutor's office secured warrants, based upon information derived from the wiretaps, authorizing intrusions into and searches of the Greenhause and Burstein residences. As a result of the warrants, CDS and related paraphernalia were found in the residences of both defendants. Greenhause, Burstein and 11 others were arrested.

The Burstein wiretap tapes were presented for sealing to Judge Blake on January 11, 1978, six days after the wiretap on his phone terminated. The Greenhause tapes, however, were not presented to Judge Blake for sealing until January 30, 1978, 30 days after the Greenhause wiretap had been terminated.

The reason given by the State for the delay in presenting the Greenhause tapes was described as follows:

It has been the standard way we seal tapes. Normally we go before the Judge with the paper work needed for sealing the tapes along with the notices of inventory for those individuals who have been identified throughout the course of the electronic surveillance. In this particular case there was a technical problem with the notice of inventory and there was, as I recall, something from the Attorney General which which changed the format. The notice of inventory and the original notice of inventory that I received had to be sent back and had to be redone. That was not forthcoming. And I waited until that period of time when I decided to wait no longer and bring them before the Judge. And I brought them before the Judge without the notice of inventory which is our normal procedure.

Prior to their trial of charges of possession of marijuana, possession of marijuana with intent to distribute and conspiracy to violate the narcotics laws, both defendants moved to suppress (1) any of their conversations intercepted pursuant to the challenged wiretaps and (2) any evidence obtained as a result of the wiretaps. Both motions were denied. Greenhause and Burstein pleaded guilty, preserving for this appeal the issues related to their unsuccessful motions to suppress.

N.J.S.A. 2A:156A-14 of the New Jersey Wiretapping and Electronic Surveillance Control Act ("Wiretap Act") requires, with respect to intercepted communications, that:

. . . Immediately upon the expiration of the order or extensions or renewals thereof, the tapes, wires or other recordings shall be transferred to the judge issuing the order and sealed under his direction. . . . The presence of the seal provided by this, or a satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication, or evidence derived therefrom, under subsection b of section 17 of this act.

Central to the issues raised on this appeal is the undisputed fact that the tapes of the Greenhause wiretap were not presented to Judge Blake for sealing until 30 days after their termination. Both defendants contend on appeal that this delay violated statutory mandate and resulted not only in depriving those tapes of all evidential value for trial but in similarly invalidating the resulting search warrants and their fruits and the Burstein wiretap and its fruits.

Consideration of these contentions starts with State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979), decided after all pertinent events in this matter, which, by way of dictum, emphasized the transfer and sealing requirements of N.J.S.A. 2A:156A-14 as essential components of the protective measures of the Wiretap Act that involve continuing judicial supervision of all aspects of electronic surveillance. Ibid. Quoting with approval from United States v. Gigante, 538 F.2d 502, 505 (2 Cir. 1976), the Cerbo court noted that the "immediate sealing and storage of recordings of intercepted conversations, under the supervision of a judge, is an integral part of this statutory scheme * * * (and was intended) 'to insure that accurate records will be kept of intercepted communications.' " 78 N.J. at 603, 397 A.2d at 675.

A delay in sealing, without satisfactory explanation, triggers the statutory sanction of exclusion of the tapes from evidential use without requiring a showing of probable or possible alteration thereto, and regardless of the good or bad faith of law enforcement officers in delaying the sealing of the tapes. Continuing in its statement as to the effect of a sealing violation, Cerbo went on to note that because

. . . the Wiretap Act constitutes an 'intrusion into individual rights of privacy' . . . (the act) should be strictly interpreted and meticulously enforced. . . . And '(w)hen the federal and state constitutions protect the individual's right of privacy and the Legislature has seen fit to prescribe an all-inclusive safeguard against wiretaps, it is fitting and proper to hold that the prosecutor comply fully with the conditions under which an exception to the general prohibitions may be permitted.' (Id. at 604, 397 A.2d at 675-676; citation omitted)

The State's contention that the 30-day delay in presenting the Greenhause tapes for sealing is satisfactorily explained, and hence excused, by a newly instituted work procedure which required the completion of newly developed forms is, in light of Cerbo and the reasons rejected therein, clearly without merit.

We similarly reject the State's plea that Cerbo not be retroactively applied to telephone interceptions conducted prior to the date it was decided. The State argues that at the time the Greenhause wiretap terminated it relied upon the determination of the Appellate Division majority in Cerbo ¹ and upon United States v. Falcone, 505 F.2d 478 (3 Cir. 1974), cert. den. 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975), that a delay in presenting wiretap tapes for sealing, although improper, would not result in the exclusion of the tapes from evidence in the absence of suggestion that the actual integrity of the tapes had been violated, or that the delay resulted from the State's desire for tactical advantage, or other improper motive. The argument continues that because it failed to foresee Cerbo, that case should not be retroactively applied. We disagree. Indeed, we detect no retroactivity problem here. Although Cerbo was decided after the taping and sealing of the Greenhause wiretap tapes, N.J.S.A. 2A:156A-14, that portion of...