Decided: November 27, 1978.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAX BEN SAWICKY, DEFENDANT-APPELLANT
On appeal from the Essex County Court whose opinion is reported sub nom. State v. Chaitkin, 135 N.J. Super. 179 (1975).
Lora, Michels and Larner.
[164 NJSuper Page 95] Following a lengthy jury trial defendant was convicted of assault and battery on a police officer acting in the performance of his duties (N.J.S.A. 2A:90-4) and of possession of a dangerous weapon, to wit, "nunchaka sticks,"*fn1 with intent to use them unlawfully against another (N.J.S.A. 2A:151-56). Defendant's motion for a judgment of acquittal notwithstanding the verdict was denied, and he was sentenced to the Essex County Correctional Center for a term of nine months for assault and
[164 NJSuper Page 96]
battery upon a police officer and to a concurrent 18-month term for possession of the nunchaka sticks. The 18-month term, however, was suspended and defendant was fined $250.
According to the State's proofs, defendant struck Police Officer Frederick Robson with nunchaka sticks, breaking his wrist. Officer Robson, who was assigned to the Tactical Squad of the Newark Police Department, was assaulted by defendant while he, Robson, was attempting to handcuff another person involved in a disturbance which erupted in the council chambers in the Newark City Hall.
Defendant appeals, seeking a reversal of his convictions and, alternatively, a modification of his sentences on the following grounds set forth in his brief:
Point I THE TRIAL COURT ERRED IN REFUSING TO
ORDER THE STATE TO REQUEST FEDERAL AU-
THORITIES TO AFFIRM OR DENY WHETHER DE-
FENDANT HAD BEEN SUBJECT TO WIRETAPS
ON ELECTRONIC SURVEILLANCE OR, IN THE
ALTERNATIVE, TO ORDER THE INDICTMENTS
AGAINST DEFENDANT DISMISSED.
Point II THE TRIAL JUDGE ERRED IN FAILING TO DIS-
QUALIFY HIMSELF AND THE ASSISTANT PROSE-
CUTOR FROM THE HEARING ON WITNESS AN-
THONY BANKS, AND IN FAILING TO ORDER A
VOIR DIRE BEFORE AN IMPARTIAL MAGIS-
TRATE WITH REGARD TO ALLEGATIONS OF IM-
PROPRIETY RESPECTING THE WITNESS' TESTI-
Point III THE TRIAL COURT ERRED IN REFUSING TO
PERMIT CROSS-EXAMINATION OF THE COM-
PLAINING WITNESS AS TO WHETHER HE HAD
BROUGHT A CIVIL ACTION AGAINST DEFEND-
Point IV THE TRIAL COURT ERRED IN FAILING TO
GRANT DEFENDANT'S MOTION FOR JUDGMENT
NON OBSTANTE VEREDICTO IN THAT THE VER-
DICT WAS AGAINST THE WEIGHT OF THE EVI-
Point V THE TRIAL COURT ERRED IN IMPOSING A CUS-
[164 NJSuper Page 97]
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them, and find them to be clearly without merit. R. 2:11-3(e)(2).
However, in affirming the judgment of the Essex County Court, we do not approve the trial court's opinion (reported sub nom. State v. Chaitkin , 135 N.J. Super. 179 (1975)) dealing with defendant's application to compel the Central Intelligence Agency, the Federal Bureau of Investigation and the Attorney General of the United States to disclose the existence of any wiretap orders and transcripts affecting him.
We are of the view that no attempt should have been made to apply § 3504(a) of the Organized Crime Control Act of 1970, 18 U.S.C.A. § 3504(a), (Pub. L. 91-452, Title VII, § 702(a)) or procedures established therein to this state criminal prosecution, even if only by analogy. Section 3504(a) "applies only to trials and other proceedings conducted under authority of the United States," H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. , , reprinted in  U.S. Code Cong. & Ad. News 4007, 4027; see id. , at 4009.
Beyond this, the procedure employed here was entirely unnecessary. The evidence against defendant was not the product of any illegal wiretap or any other unlawful act. Defendant was charged simply with assault and battery upon a police officer in the performance of his duties and possession of a dangerous weapon. The proofs against defendant consisted primarily of testimony of the victim and eyewitnesses to the assault. Wiretaps played no part in this prosecution.