On appeal from the Superior Court, Appellate Division, whose opinion is reported at 152 N.J. Super. 30 (1977).
For affirmance -- Chief Justice Hughes, and Justices Mountain, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Handler, J.
This case raises the question of whether defendants are entitled to post-conviction relief under R. 3:22-4 based upon a violation by the State of the sealing requirements of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq.
On March 14, 1973, defendants John Cerbo and John Benevento, and another defendant Michael Centrone, who is not involved in this appeal, were indicted by a Bergen County Grand Jury on multiple counts of bookmaking in violation of N.J.S.A. 2A:112-3 and for conspiracy to violate gambling laws in violation of N.J.S.A. 2A:98-1 and 2. The evidence which led to their convictions was obtained through a court authorized wiretap placed upon the home telephone of defendant Centrone pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1, et seq. (Wiretap Act).
The procedural history of this case is rather convoluted. Prior to trial, defendants Cerbo and Benevento moved unsuccessfully to suppress the evidence obtained from the wiretap. The motion was based upon an asserted violation of N.J.S.A. 2A:156A-14, which requires the transfer and sealing of tapes by the issuing judge immediately upon the completion of the wiretap. Following a long jury trial, defendants were found guilty on all counts. A subsequent motion for a new trial was denied and on July 19, 1974,
defendants Cerbo and Benevento were each sentenced to the State Prison for terms aggregating two to four years and fines totalling $2,000. An appeal was taken but defendants neglected at that time to raise the denial of their pretrial motion to suppress the wiretap evidence. The convictions and sentences were affirmed in a reported opinion, State v. Benevento, 138 N.J. Super. 211 (App. Div. 1975). Defendants' petition for certification was denied on April 1, 1976. State v. Cerbo, 70 N.J. 276 (1976).
On April 28, 1976, defendants filed applications for habeas corpus relief in the United States District Court for the District of New Jersey. That court, in an unreported opinion, dismissed defendants' applications on the ground that they had not exhausted their State remedies in view of the availability of a petition for post-conviction relief under R. 3:22-4. During the pendency of the habeas corpus applications, defendants moved in the State court for a reduction of their sentences, as a result of which Benevento's sentence was reduced to a term of one to two years but Cerbo's was not. On June 10, 1977, the Appellate Division, in an unreported opinion, affirmed the denial of defendant Cerbo's motion for a reduction of sentence and this Court denied his pro se petition for certification on September 27, 1977. 75 N.J. 531 (1977).
Following the dismissal of their habeas corpus applications in the federal district court, defendants applied to the trial court for post-conviction relief under R. 3:22-4. These applications were denied on September 23, 1976 and defendants were ordered to begin serving their respective sentences in State Prison. A notice of appeal from this denial of post-conviction relief was filed by defendant Cerbo on October 18, 1976 and later amended to include defendant Benevento. On July 25, 1977, the Appellate Division, in a reported opinion, affirmed the denial of post-conviction relief. State v. Cerbo, 152 N.J. Super. 30 (1977). There being a dissent, a notice of appeal as of right was filed with this Court on September 8, 1977 under R. 2:2-1(a)(2).
We affirm the judgment of the Appellate Division sustaining the denial of defendants' petitions for post-conviction relief. The grounds advanced by defendants for post-conviction relief were not previously raised in their initial appeal from their judgments of conviction. There appears no basis for finding that these grounds "could not reasonably have been raised" before or that the denial of relief on such grounds would result in "fundamental injustice" or a deprivation of constitutional rights. R. 3:22-4. Post-conviction relief was therefore properly withheld.
We do not, however, subscribe to the conclusions of the majority of the Appellate Division that the provisions of N.J.S.A. 2A:156A-14 for the transfer and sealing of a completed wiretap tape were ministerial and that the failure of the investigating police officers to have turned over the completed wiretap tapes immediately to the issuing judge for such sealing was merely a technical violation of the Wiretap Act which would not justify barring their use as evidence at the criminal trial of defendants. Had defendants raised this issue in their prior appeal from their judgments of conviction, a reversal would have been warranted. On this facet of the case, we endorse generally the reasoning expressed in the dissenting opinion of Judge Antell. Notwithstanding our decision to deny post-conviction relief for the reasons indicated, because of the prominence which the violation of N.J.S.A. 2A:156A-14 has assumed in the disposition of the post-conviction appeal, some further comment with respect to this issue and its impact upon defendants' entitlement to post-conviction relief is warranted.
The gravamen of the petitions for post-conviction relief and this appeal was the failure of the law enforcement officers who were responsible for effectuating the court authorized wiretap to comply with the statutory requirement that ...