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State v. Cocuzza

Decided: February 23, 1973.


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 codefendants 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 assitant prosecutor and, in the alternative, that such a statutory provision would be contrary to the Congressional mandate in the federal wiretap act, 18 U.S.C.A. § 2510 et seq. Moreover, he contends, the entire series of 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 (Cty. Ct. 1970), Berger v. New York , 388 U.S. 41, 87 S. Ct. 1873,

18 L. Ed. 2 d 1040 (1967), and Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2 d 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.


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 ...

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