Defendant and three codefendants were indicted for violations of the gambling laws. The primary source of evidence stems from wiretaps executed pursuant to the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. Defendant seeks to suppress the use of the evidence so obtained. N.J.S.A. 2A:156A-21.
Joseph P. Lordi, Prosecutor of Essex County, prior to his vacation period of August 1972, specifically designated Leonard D. Ronco (Chief Trial Attorney) as "Acting Prosecutor, with all the powers and duties of the Office of Prosecutor" for that period. While the prosecutor was actually absent on vacation, the acting prosecutor authorized an application for the wiretap order in the instant case. The wiretap order was issued by a Superior Court judge empowered to sign such orders. N.J.S.A. 2A:156A-2(i).
Defendant contends that the wiretap order is invalid because the required written authorization was not executed by the county prosecutor himself but rather by an "acting" prosecutor, contrary to the provisions of N.J.S.A. 2A:156A-8. It is urged that this section, by its plain meaning, imposes a non-delegable duty upon the prosecutor to himself authorize all such applications, and that generally speaking a prosecutor lacks power to appoint an acting prosecutor. Moreover, she
asserts that if the New Jersey statute is construed to allow such delegation, such a provision is invalid, being in contravention of the federal wiretapping act which controls all local legislation on the subject. 18 U.S.C.A. § 2516 et seq; 1968 U.S. Code Cong. & Admin. News, 2187. Defendant argues that the rationale of State v. Cocuzza, 123 N.J. Super. 14 (Cty. Ct. 1973), a case recently decided by this court, also mandates this result.
The State maintains that the full-time prosecutor, although not specifically authorized by any statutory provision, has inherent power to appoint an acting prosecutor in such a situation. Further, it is contended that the New Jersey Wiretap Statute clearly allows delegation of the wiretap authority to an acting prosecutor who has assumed the full powers of the prosecutor's office during his actual absence as occurred here. The State also urges that State v. Cocuzza, supra, compels such a conclusion.
Dealing with the general problem of whether or not a prosecutor in New Jersey may appoint an acting prosecutor to act in his absence or disability, it appears that there is no statutory authority for such action. See N.J.S.A. 2A:158-1 et seq. The parties concede that there is no precedent in this State nor, indeed, in any other jurisdiction, to support the propositions advanced by either of them in this regard, absent specific legislative enactment. In contrast, the Attorney General is governed by statutory provisions concerning appointment of an Acting Attorney General. N.J.S.A. 52:17A-3.1. It may be noted that N.J.S.A. 2A:158-5 grants to county prosecutors the "same powers" as the Attorney General. Hence, one may argue, this includes the power to appoint an "acting" prosecutor. N.J.S.A. 52:17A-3.1; cf. State v. Winne, 12 N.J. 152, 164-166 (1953).
In Cocuzza this court noted that N.J.S.A. 2A:158-9 provides for appointment of a prosecutor by an assignment
judge in the absence of both the Attorney General and a county prosecutor. The State urges, and this court agrees, that that particular section was intended to apply to long-term situations such as would result from removal of the prosecutor or physical or mental inability on the part of the prosecutor to act. Its clear language does not contemplate action by the assignment judge where the absence or disability is a temporary or transient one, as frequently occurs in the ordinary course of business of such an office.
A county prosecutor is endowed with many powers to enable him to discharge his obligations as such. N.J.S.A. 2A:158-1 et seq. Even in the absence of any specific statutory provision it seems clear that a county prosecutor has the inherent power to designate an acting prosecutor to assume the duties of his office during absences or disabilities which routinely occur in such an office. The thrust of N.J.S.A. 2A:158-18, vesting in the prosecutor's broad powers to delegate duties to assistant prosecutors, would also seem to compel the conclusion that he has the power and discretion to appoint a qualified acting prosecutor to assume all of his duties and powers on such occasions. To hold otherwise would lead to the intolerable result that when relatively short absences or disabilities occur, the prosecutor's office would be left without someone filling its chief position. The desirability of continuity of the administration of prosecutorial business in a county requires that a prosecutor be so empowered.
In the instant case Prosecutor Lordi thus acted lawfully and properly in appointing Leonard D. Ronco as acting prosecutor during his vacation period. (The qualifications and ...