On appeal from Superior Court, Law Division, Essex County.
Fritz, Kole and Lane. The opinion of the court was delivered by Kole, J.A.D.
[173 NJSuper Page 550] In our opinion of November 14, 1979 we remanded this matter for a plenary hearing and findings on the issue of whether the State had provided a "satisfactory explanation" for the 40-day delay in sealing the tapes obtained during the wiretap. See State v. Cerbo , 78 N.J. 595 (1979) (hereafter Cerbo). We reserved for determination the questions of whether defendants
had waived their right to raise the sealing requirement issue at trial by not incorporating it in their pretrial motions to suppress and whether Cerbo should be applied to this case which was pending on direct appeal when Cerbo was decided.
The trial judge conducted the hearing and has submitted her findings. Further oral argument was held on the remanded issue.
We have reviewed the proofs at the remand hearing and have concluded that the factors in the record on which the trial judge relied plainly do not suffice to sustain her ultimate determination that the State had "met its burden of proving a satisfactory explanation for the delay in sealing [the tapes] under N.J.S.A. 2A:156A-14 in this case." Hence that determination was erroneous. See Pioneer Nat'l Title Ins. Co. v. Lucas , 155 N.J. Super. 332 (App.Div.1978), aff'd o.b. 78 N.J. 320 (1978).
The electronic surveillance, ordered by Judge Blake, was terminated on August 1, 1974. He was one of seven judges authorized by the Supreme Court to grant such orders. The tapes were not sealed by Judge Blake until September 10, 1974 -- a period of 40 days from the date of termination of the surveillance.
We cannot fault the prosecutor for failing to seek out an authorized judge other than Judge Blake to obtain immediate sealing. N.J.S.A. 2A:156A-14 on its face seems to contemplate sealing only by the judge issuing the wiretap order by providing that immediately upon expiration of the order, the tapes "shall be transferred to the judge issuing the order and sealed under his direction." We point out that this interpretation of the statute is erroneous and that notwithstanding the foregoing statutory language, sealing can be, and in the absence of availability of the issuing judge must be, obtained from another authorized judge. See United States v. Poeta , 455 F.2d 117, 122 (2 Cir. 1972), cert. den. 406 U.S. 948, 92 S. Ct. 2041, 32 L. Ed. 2d 337 (1972).
The problem here, however, involves the failure of the prosecutor's office to seek out Judge Blake with sufficient dispatch for sealing purposes, assuming that it was justified in not availing itself of another authorized judge for that task.
We agree with the trial judge's findings, predicated on sufficient credible evidence, that the prosecutor's office acted in good faith throughout on the assumption, which we hold to be unwarranted in the light of Cerbo , that the sealing of the tapes was not an urgent matter; that the integrity of the tapes was preserved throughout the period; that there was no tampering with the tapes, and that the failure to seek prompt sealing in no wise prejudiced defendant or benefited the State.
However, we read Cerbo , including its reliance on United States v. Gigante , 538 F.2d 502 (2 Cir. 1976), to hold that the aggregate of these factors does not justify a finding of a satisfactory explanation for a failure to obtain immediate sealing of tapes under the statute. Thus, under Cerbo the good faith motives of the State, the presence or absence of any tactical advantages gained by the State or prejudice accruing to the defendant, the lack of any evidence of alteration of or tampering with the tapes and the fact that adequate procedures were taken to preserve the integrity of the tapes are not relevant to the issue of a satisfactory explanation for the delay in sealing. Nor is it of any significance under Cerbo that substantial paper work was required before presentation of the tapes for sealing. And the prosecutor's view here that immediate sealing of the tapes was not an urgent matter which would result in the sanction of suppression is plainly not an adequate explanation for the 40-day delay in the light of ...