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State v. Liberti

Decided: June 29, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK E. LIBERTI, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Halpern, Larner and King. The opinion of the court was delivered by King, J.A.D.

King

[161 NJSuper Page 577] This is an appeal from the denial of a motion to suppress evidence seized pursuant to a search warrant issued by telephone. Following denial of the motion defendant pled guilty to two counts of the indictment. His right

to appeal from the guilty plea is preserved under R. 3:5-7(d).

The Bergen County Organized Crime Strike Force had been investigating the disappearance of 1 1/2 pounds of pure cocaine, with a potential value in excess of $1 million, from the State Police crime laboratory at Little Falls. Early in the evening of January 9 Lieutenant Joseph Delaney of the Strike Force was called to the crime laboratory to confer with other investigating officers. At the laboratory Delaney was told by Lieutenants Licitra and King that they were going to arrest Gail Kosmyna, a chemist at the laboratory and defendant's girlfriend. The missing cocaine had been in Kosmyna's custody for analysis following seizure in a pending criminal case. Kosmyna was thereafter arrested at her home and given her Miranda warnings. Under questioning by officers other than Lieutenant Delaney she admitted stealing the cocaine and giving it to the defendant. Kosmyna also admitted that other drugs which she had stolen were still in her home and car.

Kosmyna admitted speaking with defendant as recently as 7:30 P.M. on January 9. At that time defendant told her that he intended to sell the cocaine that evening. He said he would call Kosmyna later in the evening and if he could not reach her, he would assume she had been arrested and he would flee. Kosmyna also admitted supplying defendant with other drugs from the crime laboratory which he sold in the past.

Based on this information from the interrogating officers, at about 2:25 A.M. on January 10 Lieutenant Delaney telephoned Superior Court Judge Galda at home for an oral search warrant. Delaney made the call because he had known the judge for many years as a result of his official duties and knew his voice would be recognized. The call was placed from the crime laboratory in the presence of Licitra and King, to whom Kosmyna had confessed, and a Detective Scolpino. Judge Galda swore Delaney over the telephone and

through him confirmed the presence of the other officers. Delaney explained to the judge the investigatory background and the discovery that the cocaine was missing. Delaney then told Judge Galda of the highly incriminatory statements of Kosmyna, as related to him by the interrogating officers, and of the threatening exigent circumstances.

Judge Galda was told defendant's name and address and the registration number of his motor vehicle. He was given the same information concerning Kosmyna. Judge Galda then telephonically authorized the search of defendant's and Kosmyna's dwellings and automobiles. The judge directed Delaney to prepare and submit a written affidavit in support of the search warrant within 24 hours. The police searched defendant's home at 4:15 A.M. and the cocaine was seized.

The written affidavit was filed with the judge that afternoon. The written warrant was signed nunc pro tunc by Judge Galda at 3:30 P.M. on January 10, and stated the effective time of issuance at 2:20 A.M. on that day.

The conversation between Lt. Delaney and Judge Galda was not tape-recorded or stenographically transcribed. Judge Galda made contemporaneous handwritten notes of the conversation, which were admitted into evidence by consent. A copy of these notes is attached to this opinion. The judge signed and dated the notes, indicating "telephone notes written at time" at the bottom. At the top of the page he noted the time of the call from Lt. Delaney, that the witness had been sworn over the telephone, and that the warrant issued orally. He also noted the presence of Lt. Licitra and Detective Scolpino with Lt. Delaney. He noted the subjects of the search warrant, their addresses and vehicle identifications, the object of the search -- 1 1/2 pounds of cocaine -- the method by which defendant obtained the stolen cocaine, the emergency basis for the application and the exigent circumstances.

Delaney testified that he asked the judge if he was going to "memorialize" the conversation ...


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