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State v. Cerbo

Decided: July 25, 1977.


Lynch, Milmed and Antell. The opinion of the majority was delivered by Milmed, J.A.D. Antell, J.A.D. (dissenting).


Defendants John Cerbo and John Benevento appeal from a denial of their petitions for post-conviction relief.

The essential facts are not in dispute. These defendants, along with a codefendant, Michael Centrone, were charged in one indictment with multiple counts*fn1 of bookmaking (N.J.S.A. 2A:112-3). Additionally, the three were charged in another indictment with conspiracy to violate the gambling laws of the State (N.J.S.A. 2A:98-1 and N.J.S.A. 2A:98-2). Defendants' pretrial motions to suppress the fruits of a wiretap placed on Centrone's telephone were denied. Following trial, a jury found them guilty of all charges. Their motion for a new trial was denied. Cerbo and Benevento were each sentenced to the State Prison for terms aggregating two to four years. Fines totalling $2,000 were also imposed on each. Their convictions and sentences were affirmed on appeal. State v. Benevento , 138 N.J. Super. 211 (App. Div. 1975). Petition for certification was denied. State v. Cerbo , 70 N.J. 276 (1976). Defendants then filed with the United States District Court for the District of

New Jersey their application for habeas corpus relief from the convictions, claiming that the introduction into evidence at their trial of electronic surveillance materials which did not comply with relevant wiretap statutes violated their Fourth and Sixth Amendment rights. As pointed out by Chief Judge Whipple in his opinion of July 25, 1976:

Prior to trial, petitioners moved before Judge Thomas F. Dalton to suppress tape recordings for failure of the prosecution to promptly deliver the tapes to the court for sealing, as required by N.J.S.A. 2A:156A-11, 14. The evidence adduced at the suppression hearing disclosed that the tape in question was held by the investigating authorities for the purpose of making a composite tape for use at trial. The original and composite tapes were delivered to Judge Morris Pashman for sealing some thirty-three days after the date of termination of the wiretap authorization. Judge Dalton denied the motion to suppress, holding that the failure of the law enforcement authorities to comply with N.J.S.A. 2A:156-11, 14 [ sic ] was a mere "ministerial defect."

Petitioners appealed their convictions to New Jersey Superior Court, Appellate Division. The alleged violation of the wiretap statute was not specifically urged upon the court as grounds for reversal of the convictions. However, in affirming petitioners' convictions, the court did pass on the issue of the legality of the wiretap evidence. State v. Benevento , 138 N.J. Super. 211, 214 (App. Div. 1975). Certification to the New Jersey Supreme Court was subsequently denied.

The federal District Court did not rule on defendants' claim that the trial judge's failure to suppress the wiretap evidence for failure to comply with the sealing provisions of N.J.S.A. 2A:156A-14 rendered their convictions constitutionally invalid. Rather, it dismissed the applications for habeas corpus relief, holding that "As there presently exists a state forum for determination of petitioners' claim,*fn2 a claim not heretofore considered by the New Jersey appellate courts, petitioners have not exhausted their state remedies."

While their petitions for habeas corpus relief were pending, defendants applied for reduction of their custodial terms. The aggregate term imposed upon Benevento was reduced to one to two years. Cerbo's motion for a reduction of sentence was denied. That denial is the subject of a separate appeal (A-4120-75) which has been disposed of by separate opinion.

On this appeal defendants contend, as they did on their pretrial motion to suppress, that since the State had not, "[i]mmediately upon the expiration of the order" authorizing the interception of wire communications (wiretap), transferred the tapes to the judge who issued the order for sealing under his direction,*fn3 N.J.S.A. 2A:156A-14, the evidence obtained from the wiretap should have been suppressed. They claim that, in the circumstances, allowing the evidence to be used against them at the trial constituted reversible error and that accordingly, their petition for post-conviction relief should have been granted. We disagree.

We note initially that the ground for relief urged on this appeal could "reasonably have been raised in" the prior appeal to this court from the convictions, R. 3:22-4. It was not.*fn4 Nonetheless, we proceed, as did the Law Division on the petition for post-conviction relief, to review the merits of the issue. In denying the pretrial motion to suppress, Judge Dalton found that there was a satisfactory explanation for the delay*fn5 and stated, among other things:

I'm cognizant of the fact that at the time that this particular wire tap was conducted under Judge Pashman's order, you had a sort of a hiatus there in the Prosecutor's Office, you had no Prosecutor, you had the Attorney General's Office handling the affairs of the office. It would appear that since they were I think instrumental in initiating this law initially, that they should have been a little more circumspect in seeing that proper instructions were issued. But I find nothing here to indicate that there was any prejudice to the defendants in the procedure here, nor that there's any indication of any alteration of tapes, anything that would possibly prejudice these defendants. I do not approve of the procedure that had been followed but I do not feel that it is sufficient to warrant a suppression and I find that under 2A:156A-21, the motion must be denied.

We agree. In the circumstances, the motion to suppress was properly denied. N.J.S.A. 2A:156A-21. The purpose of the requirement (N.J.S.A. 2A:156A-14) for prompt sealing of the tapes is to protect their integrity. Here, there was no showing that the integrity of the wiretap recordings was in any way ...

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