Lora, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.
[148 NJSuper Page 587] During its investigation into official corruption in the City of Elizabeth, the Union County grand jury heard a series of telephone conversations taped by Joseph Oliveri which indicated that $395 had been passed by Verle Cain through Oliveri to Thaddeus Gora, a former president and member of the Elizabeth City Council, for use in fixing a traffic ticket issued to Cain. Thereafter, a six-count indictment issued against defendant Gora. Count 1 charged Gora with taking the $395 from Oliveri unlawfully and by color of his office as an illegal fee or reward for performing his duties, contrary to N.J.S.A. 2A:105-1. Count 2 charged that he unlawfully received a fee or reward for performing a service in regard to Cain's criminal case, in violation of
N.J.S.A. 2A:105-2. Count 3 charged Gora with accepting a bribe, in violation of N.J.S.A. 2A:93-6, and count 4 charged misconduct in office, contrary to N.J.S.A. 2A:85-1. Count 5 charged that defendant conspired with Cain and Oliveri (unindicted coconspirators) to commit the substantive crimes charged in the first four counts, thereby violating N.J.S.A. 2A:85-1 and 2A:98-1, and count 6 charged that Gora violated N.J.S.A. 2A:131-1 by willfully and corruptly committing perjury before the grand jury when he testified that he had never received the money from Oliveri. Defendant's pretrial motion to dismiss the indictment was denied by the trial judge, and his subsequent motions for leave to appeal from that order were denied by this court and by the Supreme Court.
Following a lengthy trial the jury found defendant guilty on all counts of the indictment. Defendant's motion for a new trial was denied. Thereafter, the trial judge merged defendant's convictions on the first three counts into count 4, misconduct in office, dismissing counts 1, 2 and 3. He was sentenced to a one to two-year State Prison term and fined $500 on count 4. A suspended one-to two-year State Prison term was imposed for the conspiracy conviction (count 5) and a concurrent one to two-year sentence was imposed for perjury (count 6). Defendant appeals, seeking a reversal on the following grounds as set forth in his brief:
POINT I -- A TAPE RECORDING MADE BY OLIVERI OF GORA WAS IMPROPERLY ADMITTED INTO EVIDENCE IN VIOLATION OF THE NEW JERSEY WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT. (N.J.S. 2A:156A-1 et seq.).
POINT II -- EVEN IF THE NEW JERSEY WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT (N.J.S. 156A-1 et seq.) WAS NOT VIOLATED, THE PROPER FOUNDATION WAS NOT LAID FOR THE ADMISSIBILITY OF THE OLIVERI TAPE.
POINT III -- DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT I AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED DUE TO THE
STATE'S FAILURE TO PROVE THAT GORA RECEIVED OR TOOK MONEY BY COLOR OF HIS OFFICE.
POINT IV -- AS THE SAME EVIDENCE SUPPORTED THE CONVICTIONS UNDER BOTH COUNTS I & IV AND AS EXTORTION, N.J.S. 2A:105-1 (COUNT I) AND MISCONDUCT IN OFFICE, N.J.S. 2A:85-1 (COUNT IV) ARE SUBSTANTIALLY SIMILAR, A REVERSAL OF COUNT I WOULD REQUIRE A REVERSAL OF COUNT IV.
POINT V -- DEFENDANT WAS DENIED A FAIR TRIAL AND THEREFORE IS ENTITLED TO A NEW TRIAL BECAUSE OF THE PREJUDICE RESULTING FROM:
A. THE TRIAL JUDGE'S STATEMENTS THAT S-1A WAS AN "ORIGINAL TAPE".
B. THE CHARGE AS GIVEN FAILED TO STATE THAT TO BE FOUND GUILTY OF EXTORTION, MONEY MUST HAVE BEEN RECEIVED BY GORA AS A QUID PRO QUO , NOT MERELY BEEN RECEIVED "IN CONNECTION WITH" THE PERFORMANCE OF HIS DUTIES. STATE v. SAVOIE , 67 N.J. 439 (1975).
POINT VI -- THE STATE'S INTRODUCTION INTO EVIDENCE AT THE TRIAL OF GORA'S TESTIMONY BEFORE THE GRAND JURY CONSTITUTED REVERSIBLE ERROR.
POINT VII -- THE PRETRIAL MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED AS:
A. THE DEFENDANT DID NOT WAIVE HIS RIGHTS UNDER THE NEW JERSEY PUBLIC EMPLOYEE IMMUNITY STATUTE (N.J.S. 2A:81-17.2(a)(2), et seq.).
B. STATE v. VINEGRA, SUPRA , SHOULD NOT BE FOLLOWED IN THE CASE HEREIN AS VINEGRA DOES NOT PROVIDE FOR THE DISMISSAL OF AN INDICTMENT WHERE THE STATE FAILS TO APPRISE THE DEFENDANT PRIOR TO DEFENDANTS APPEARANCE BEFORE THE GRAND JURY OF THE SUBJECT MATTER OF ITS INVESTIGATION AND AS VINEGRA DOES NOT REQUIRE AN INDICTMENT TO BE DISMISSED WHERE THE STATE CALLS A DEFENDANT AS A RUSE TO OBTAIN EVIDENCE AGAINST HIM OR TO PREJUDICE HIM IN THE EYES OF THE GRAND JURY.
C. THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT WERE INFRINGED UPON AS THE STATE FAILED TO ADEQUATELY INFORM THE DEFENDANT OF THE SCOPE OF ITS INVESTIGATION AT THE TIME THE DEFENDANT WAS CALLED BEFORE THE GRAND JURY.
We have carefully considered all of defendant's arguments addressed to these contentions and find, with the sole exception expressed in Point VI, infra , that they are without merit. R. 2:11-3(e)(2).
I. Admissibility of Tape Recordings Made by Oliveri Of His Telephone Conversations With Defendant.
Defendant asserts that the recording of telephone conversations by Oliveri by use of a tape recorder and special adapter attached to the telephone receiver constituted an "intercept" under N.J.S.A. 2A:156A-2(c), and notes that the interception of oral communications or the disclosure or use of intercepted conversations is unlawful and proscribed by N.J.S.A. 2A:156A-3.*fn1 Therefore, defendant contends, the trial judge erred in denying his motion to suppress the tapes as illegal under the New Jersey Wiretapping and Electronic Surveillance Control Act (hereinafter referred to as the State's Wiretapping Act), N.J.S.A. 2A:156A-1, et seq.
N.J.S.A. 2A:156A-2(c) defines the term "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." We are convinced that Oliveri's recording of his telephone conversations with defendant did not meet this statutory definition, and therefore, in making the recordings, Oliveri violated neither our Wiretapping Act nor the comparable provisions of the Federal Omnibus Crime Control and Safe Streets Act of
1968. 18 U.S.C.A. §§ 2510(4) and 2511(1)(a) and (b). Accordingly, we affirm the order of the Law Division denying defendant's motion to suppress the Oliveri tapes substantially for the reasons expressed by Judge Davidson in his oral opinion of April 10, 1974. See State v. Vizzini , 115 N.J. Super. 97, 99-101 (App. Div. 1971). See also, Rathbun v. United States , 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957); United States v. Harpel , 493 F.2d 346, 350 (10 Cir. 1974); State v. Carbone , 38 N.J. 19, 26 (1962). Cf. Lopez v. United States , 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963).
Furthermore, even assuming that Oliveri's recordings were "interceptions" within the meaning of N.J.S.A. 2A:156A-2(c), such recordings would still not be unlawful in view of N.J.S.A. 2A:156A-4 which, in pertinent part, provides:
It shall not be unlawful under this act for:
c. A person not acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of ...