State v. Cocuzza

• Decision Date: 23 February 1973
• Citation: 301 A.2d 204,123 N.J.Super. 14
• Parties: STATE of New Jersey, Plaintiff, v. Joseph COCUZZA, Defendant. (Criminal), New Jersey
• Court: New Jersey County Court

Page 14

123 N.J.Super. 14

301 A.2d 204

STATE of New Jersey, Plaintiff, v. Joseph COCUZZA, Defendant.

Essex County Court,

Law Division (Criminal),

New Jersey.

Feb. 23, 1973.

John A. Matthews, III, Asst. Prosecutor, for State (Joseph P. Lordi, Prosecutor of Essex County, attorney).

Harvey Weissbard, Montclair, for defendant (Isles & Weissbard, Montclair, attorneys).

SCALERA, J.C.C.

Defendant Joseph Cocuzza is charged with conspiracy to operate a lottery and to violate the laws pertaining to gambling, conspiracy to obstruct justice and obstruction of justice, conspiracy to threaten a life and threatening to take a life. Eighteen co-defendants were indicted for sundry violations of the laws pertaining to gambling.

The indictments find origin in a series of five wiretap orders issued pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A--1 et seq.

On December 13, 1971 the Essex County assignment judge authorized members of the Essex County Prosecutor's office and members of the City-County Task Force to intercept wire communications of two telephones listed to one 'M. Mazzeo' (a codefendant) at 61 Plymouth Street, Newark, New Jersey. The order issued as a result of the application of an investigator in the Essex County Prosecutor's office. His affidavit indicated the use of those telephone facilities to foster illegal gambling activities. The written authorization required by N.J.S.A. 2A:156A--8 was signed, not by the county prosecutor himself, but rather by an assistant prosecutor.

On December 17, 1971 a second order authorized a wiretap of a telephone listed to one 'W. Crecca' (a codefendant), Apt. B. 343 Branch Brook Drive, Belleville, New Jersey. The sworn application was based on information emanating from the December 13 wiretap order. On December 21, 1971 a third wiretap order permitted interceptions of a different phone issued to one 'Carl Romano' (a codefendant), at the same address as indicated in the December 17 wiretap order. Again, the requisite information had been obtained from the monitoring authorized by the December 17 wiretap. On December 30, 1971 the assignment judge approved an extension of the initial December 13 wiretap order. On January 3, 1972 a final order authorized a wiretap of a telephone listed to one 'M. Hlavenka' (a codefendant), Apt. 94, 352 Hoover Avenue, Bloomfield, New Jersey, based upon information obtained from the previously authorized wiretaps.

On January 8, 1973 an affidavit relating information secured from the various wiretaps in progress, resulted in the issuance of numerous search and arrest warrants which, when executed, resulted in multiple arrests. Defendant Cocuzza apparently was not involved in the arrests stemming from the execution of these warrants.

Defendant initially sought to suppress 'any and all telephone communications intercepted pursuant to N.J.S.A. 2A:156A--1 et seq. and all evidence derived therefrom,' contending that the interceptions were in violation of the New Jersey wiretap statute and of his constitutional rights.

He then narrowed the scope of his attack. More particularly, he asserts that the December 13 wiretap was invalid because the written authorization required by N.J.S.A. 2A:156A--8 was signed by an Assistant prosecutor instead of the county prosecutor himself. It is urged that the New Jersey wiretap statute prohibits such a delegation of authority to an assistant prosecutor and, in the alternative, that such a statutory provision would be contrary to the Congressional mandate in the federal wiretrap act, 18 U.S.C.A. § 2510 Et seq. Moreover, he contends, the entire series or wiretap orders is 'tainted,' being necessarily based upon information secured from the defective initial wiretap order, and all information secured thereby must be suppressed as 'evidence derived' from an illegal interception. N.J.S.A. 2A:156A--21. In further consequence of this, defendant asserts, the resultant search warrants and all evidence produced from their executions must be suppressed.

The historical development of permissible intrusion by law enforcement in the field of wiretapping is well documented. State v. Christy, 112 N.J.Super. 48, 270 A.2d 306 (Cty.Ct.1970), Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), fashioned the constitutional touchstone for future wiretaps by law enforcement agencies. Adherence to their mandates is a Sine qua non of legitimate and constitutionally valid searches by such means. The United States Congress responded by enacting legislation to guide not only the Federal Government's activities in this sensitive area but also to permit the several states to adopt legislation workable on a local level but consonant with their decree. 1968 U.S.Code Cong. & Adm.News p. 2177 Et seq.; 18 U.S.C.A. § 2510 Et seq.; Blakey and Hancock, 'A Proposed Electronic Surveillance Control Act', 43 Notre Dame Lawyer 657 (1968); ABA, Standards Relating to Electronic Surveillance, (Approved Draft 1971 pp. 13 to 98). The New Jersey act was thus specifically 'designed to meet the Federal Requirements' N.J.S.A.Cum.Supp. 2A:156A--1 Et seq., Statement.

I

Dealing with initial authorization of an interception, the act provides that

The Attorney General, a county prosecutor or the chairman of the State Commission of Investigation when authorized by a majority of the members of the commission of a person designated to act for such an official and to perform his duties in and during his actual absence or disability may authorize, in writing, an ex parte application to a judge designated to receive the same for an order authorizing the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation. * * * (N.J.S.A. 2A:156A--8)

In contrast to the Federal provision, our act requires that such authorization be 'inwriting.' It is noted that the absence of a more precise manner and method of authorization in the federal legislation has led to different and sometimes conflicting interpretations. 18 U.S.C.A. § 2516(1); United States v. Doolittle, 341 F.Supp. 163 (M.D.Ga.1972) ; United States v. Pisacano, 459 F.2d 259 (2 Cir. 1972); United States v. Cantor, 328 F.Supp. 561 (E.D.Pa.1971); United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa.1972); United States v. Aquino, 338 F.Supp. 1080 (E.D.Mich.1972); United States v. La Gorga, 336 F.Supp. 190 (W.D.Pa.1971); United States v. Casale, 341 F.Supp. 374 (M.D.Pa.1972).

Congress, under 18 U.S.C.A. § 2516(2), requires that such state legislation limit those empowered to grant the initial authorizations to the 'principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof * * *.'

Recognizing the 'awesome' power of modern electronic listening devices Congress clearly intended, as a matter of policy, to have control of that power remain within the 'political process,' United States v. Robinson, 468 F.2d 189 (5 Cir., 1972), reargument granted En banc 468 F.2d 194 (1972); 1968 U.S.Code Cong. & Adm.News pp. 2185--2187; ABA, Standards Relating to Electronic Surveillance (Approved Draft 1971, at 131--133); United States v. Narducci, 341 F.Supp. 1107 (E.D.Pa.1972). Unquestionably, the purposeful design was to keep 'decisions at the highest practicable policy-making levels' of government in all wiretap intrusions. Ibid; United States v. Lanza, 341 F.Supp. 405, 408 (M.D.Fla.1972).

The New Jersey Legislature accordingly provided that a wiretap may be initiated, 'in writing,' only by the 'Attorney General, a county prosecutor or the chairman of the State Commission of Investigation * * * or a person designated to act for such official and to perform his duties in and during his actual absence or disability.' N.J.S.A. 2A:156A--8.

The affidavit submitted by the county prosecutor here indicates that the assistant prosecutor who signed the authorization had orally advised him of the preparation of this application for the initial wiretap order and 'briefly the facts upon which said application was to be based.' The prosecutor was thus 'satisfied' to permit the application. The prosecutor was further advised that the wiretap should be executed 'as soon as possible.' Since he was 'scheduled to attend a meeting outside of the office' he 'told' the assistant prosecutor 'to sign the authorization in (his) name' and apply for the wiretap order. Accordingly, the application and authorization which had been prepared for the county prosecutor's personal review and signature was, instead, reviewed and signed by the assistant prosecutor with the latter's signature.

Thus the question arises whether an assistant prosecutor may be individually authorized by the county prosecutor to so initiate a wiretap, within the meaning of N.J.S.A. 2A:156A--8.

The statutory language is susceptible of different interpretations. One may argue, as does the State, that the statute permits the prosecutor to delegate to an assistant the power to initiate a specific wiretap application. Defendant urges that it should be construed to mean that, only a person properly designated to assume All of the powers of the prosecutorial office during actual absence or disability of the prosecutor has power to so act.

A county prosecutor is appointed by the Governor with the advice and consent of the Senate. N.J.Const. (1947) Art. VII, § II, par. 1; N.J.S.A. 2A:158--1. Similarly, the other two officers empowered to initiate wiretaps under the statute, the Attorney General and the chairman of the State Commission of Investigation, are likewise appointed by the Governor with similar legislative involvement. N.J.Const. (1947), Art. V, § IV, par. 3; N.J.S.A. 52:9M--1.

Congress sought to distinguish the use of wiretaps from other search and seizure procedures then in use, both...