State v. Schultz

• Decision Date: 24 October 1980
• Citation: 422 A.2d 105,176 N.J.Super. 65
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Peter SCHULTZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 65

176 N.J.Super. 65

422 A.2d 105

STATE of New Jersey, Plaintiff-Appellant, v. Peter SCHULTZ, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 15, 1980.

Decided Oct. 24, 1980.

Ronald G. Marmo, Asst. Prosecutor, for plaintiff-appellant (Joseph A. Falcone, Passaic County Prosecutor, attorney; John P. Goceljak, Asst. Prosecutor, on the brief).

Philip M. Saginario, Paterson, for defendant-respondent.

Before Judges FRITZ, POLOW and JOELSON.

The opinion of the court was delivered by

FRITZ, P. J. A. D.

The State appeals on leave granted from the order gained by defendant on his successful suppression motion.

The sole and narrowly limited issue here involved is whether the electronic recordings of telephone conversations between defendant and one Leslie Ann Alessandrelli, obtained by the prosecutor's agent with the consent of Alessandrelli, were subject to the sealing requirement of N.J.S.A. 2A:156A-14. We answer that inquiry in the negative and reverse.

Defendant's attack on the recording is predicated solely on the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. That act imposes criminality on certain communication intercepts (N.J.S.A. 2A:156A-3) and provides for their suppression for violations of the act (N.J.S.A. 2A:156A-21). That act also expressly excludes from its declaration of illegality certain intercepts, for which exclusion those here in question qualify (N.J.S.A. 2A:156A-4 c).

A condition is imposed upon otherwise qualifying intercepts: that "the Attorney General or his designee or a county prosecutor within his authority determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception." This is the only condition. No condition otherwise imposed by the act, such as authorization by a specified officer to apply for permission to intercept (N.J.S.A. 2A:156A-8) or application for an order (N.J.S.A. 2A:156A-9) or the issuance of an order (N.J.S.A. 2A:156A-12), appears. In such circumstance we are certain the Legislature did not intend to circumscribe the express exclusion from the operation of the act to any greater degree than by the one condition it imposed. See State v. Anepete, 145 N.J.Super. 22, 366 A.2d 996 (App.Div.1976).

While the persuasion of that logic by itself would constrain us to reverse, we find reassurance respecting our conclusion in the obvious inapplicability of the sealing statute (N.J.S.A. 2A:156A-14) according to its own terms. For instance its operative time is marked by the time of the "expiration of the order or extensions or renewals thereof." No order is required for the consensual intercept. The sealing is to be done by "the judge issuing the order." No judicial officer is implicated in any manner in the exclusion of consensual intercepts. There simply is no "judge issuing the order."

The federal cases are particularly pertinent since the New Jersey act was modelled closely after the federal electronic surveillance act. In re Wire Communication, 76 N.J. 255, 386 A.2d 1295 (1978). Support for our determination is found...