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State v. Braeunig

Decided: February 5, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND BRAEUNIG, CHARLES MARTIN, RUSSELL MILLER, JOSEPH RICHARDS, MARIE FLYNN AND EVELYN LAKES, DEFENDANTS-APPELLANTS



Fritz, Lynch and Handler. The opinion of the court was delivered by Handler, J.s.c., Temporarily Assigned.

Handler

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 accumulated 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 (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 (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.

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.e. , 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 (Cty. Ct. 1971),

rev'd and remanded on other grounds 120 N.J. Super. 208 (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 determinaton 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 ...


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