Collester, Lora and Handler.
[133 NJSuper Page 328] Roumania Travis, Antonio Nasisi and William Juliano were convicted of conspiracy to violate the gambling statutes (N.J.S.A. 2A:98-1) and maintaining premises used for gambling (N.J.S.A. 2A:112-3; N.J.S.A. 2A:121-3(c)). Both Travis and Nasisi were also convicted
of working for a lottery (N.J.S.A. 2A:121-3(a)), and Travis was further convicted of possession of lottery slips (N.J.S.A. 2A:121-3(b)).
Defendant Travis was sentenced to three concurrent six-month terms in the Essex County Correction Center, a suspended two to three-year term at the State Correctional Institution for Women, and a $1,000 fine. Defendant Nasisi was sentenced to three concurrent terms of two to two and a half years in State Prison and a $1,000 fine. Defendant Juliano received two concurrent terms of two to two and a half years at State Prison and a $1,000 fine.
The three defendants filed separate appeals which, on motion by the State, were consolidated.
A pretrial motion to suppress on the grounds the wiretap used in the case was illegal was denied by the trial judge in a written, reported decision, State v. Travis, 125 N.J. Super. 1 (Cty. Ct. 1973).
All defendants contend the trial judge erred in his denial of the motion to suppress the wiretap evidence on the ground that there had not been a lawful application for the court-authorized tap. The authorization of the wiretap in question was signed by Leonard D. Ronco, an assistant prosecutor in the Essex County Prosecutor's Office, when the prosecutor was away on vacation during the month of August 1972 and had designated Ronco as the acting prosecutor. The order was signed by a Superior Court judge empowered to sign such orders.
We are of the view the pretrial motions to suppress were properly denied, essentially for the reasons expressed by the trial judge in State v. Travis, supra. Subsequent to his decision on the motions, the United States Supreme Court decided United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). In Giordano a wiretap application made before a federal judge stated that the specific Assistant Attorney General in charge of wiretap authorizations, and so specially designated by the Attorney General pursuant to 18 U.S.C.A. § 2516(1), had approved the
application. In actuality, the Attorney General's executive assistant had placed the Attorney General's initials on a memo instructing authorization of the application by the named Assistant Attorney General, who himself had not personally reviewed the application.
The Supreme Court found that the statute (after which the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1, is patterned) conferred upon the "Attorney General, or any Assistant Attorney General specially designated by the Attorney General" the power to authorize an application for a wiretap order to a federal judge, but did not authorize wiretap applications to be made by any individuals other than the Attorney General or an Assistant Attorney General specifically designated by him; that Congress intended to narrowly limit the power for a few who were responsive to the political process, a category to which the executive assistant to the Attorney General obviously did not belong. 416 U.S. at 520, 94 S. Ct. at 1829, 40 L. Ed. 2d at 356.
However, although the court stated that "it is apparent that Congress desired to centralize and limit this authority where it was feasible to do so," Id., 416 U.S. at 521, 94 S. Ct. at 1830, 40 L. Ed. 2d at 357; it further noted that 18 U.S.C.A. § 2516(2) provided for a wider dispersal of authority among state officers to approve wiretap applications and left the matter of delegation up to state law. In a footnote the court referred to the comments in S. Rep. No. 1097 that the delegation of authority in the states could proceed down to the district attorney (county prosecutor) level, but "[t]he proposed provision does not envision a further breakdown. Although city attorneys may have in some places limited criminal prosecuting jurisdiction, the proposed provision is not intended to include them."
Here, the prosecutor was unavailable since he was out of the county for the entire month of August. An acting prosecutor was appointed by him to exercise all of the duties of the office of ...