On appeal from the Superior Court, Law Division, Morris County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Greenberg, J.A.D.
[187 NJSuper Page 365] An indictment was returned in Morris County on July 22, 1980 against defendant John Phelps and against Thomas DeMarco, Angelo Gerrizzo and Robert Hirtler. Three counts of the indictment charged Phelps with crimes: count 13 of the indictment
charged defendant, a police officer employed by the Township of Parsippany-Troy Hills since April 7, 1975, with official misconduct in office with the corrupt purpose to obtain a benefit for himself or another with a value over $200 by failing to report a known gambling operation. N.J.S.A. 2C:30-2(b). Count 14 charged defendant and DeMarco, Gerrizzo and Hirtler with conspiracy to promote gambling. N.J.S.A. 2C:5-2; N.J.S.A. 2C:37-2; N.J.S.A. 2C:37-4. Count 15 charged defendant and DeMarco, Gerrizzo and Hirtler with conspiracy to commit official misconduct. N.J.S.A. 2C:5-2; N.J.S.A. 2C:30-2(b). These defendants had previously served motions to suppress evidence, which was denied. The trial judge on September 26, 1980 ordered that Phelps' trial be severed from that of the other defendants. At the ensuing trial count 15 was dismissed by the judge. The jury found defendant guilty on count 13 and not guilty on count 14. After defendant's motion for a new trial was denied he was sentenced to a five-year term in the New Jersey State Prison. Defendant appeals, raising as grounds for reversal the following issues:
(1) Certain taped conversations of others were improperly admitted into evidence as statements of co-conspirators, without any independent proof of a conspiracy.
(2) The court below erred in denying defendant's motion to suppress the contents of all intercepted wire communications and evidence derived therefrom obtained through the order of The Honorable Arthur J. Blake executed on the 22nd day of October, 1979, and for suppression of the entire contents of all intercepted wire or oral communications together with evidence derived therefrom with respect to an extension of the original order granted by The Honorable Arthur J. Blake by order dated the 9th day of November, 1979.
(3) The contents of the intercepted wire communications and all derivative evidence should have been suppressed below due to the State's failure to comply with the disclosure provisions of N.J.S.A. 2A:156A-17.
(4) The court below erred in overruling numerous objections by defendant which were singularly and cumulatively so prejudicial to defendant as to deny him a fair trial.
(5) The court below committed a reversible error by failing to give a complete charge to the jury regarding the crime of misconduct in office.
(6) The court below committed a reversible error in charging the jury as to the elements of N.J.S.A. 2C:30-2, and in further refusing to vacate the judgment
of conviction or in the alternative, mould the judgment to a crime of the third degree.
(7) The sentence of the court below was improper since defendant was denied an opportunity to have a meaningful challenge of the pre-sentence report.
(8) The court below erred in denying defendant's motion for a judgment of acquittal and in denying defendant's motion for a new trial.
The circumstances leading to the return of the indictment are not complicated. Investigator Michael Romano of the Morris County Prosecutor's office was advised by a reliable informant in the late summer or fall of 1979 that Gerrizzo was operating a bookmaking business from his apartment at Knoll Gardens, Lake Hiawatha, New Jersey. Romano was able to obtain confirmation of this information from a second informer. The prosecutor then made application to Judge Blake for an order authorizing the interception of wire communications from the telephone listed to Gerrizzo at the apartment. Judge Blake on October 22, 1979 issued the order valid for 20 days. On the same day the interceptions commenced. On November 9, 1979 Judge Blake extended the order for ten days. Subsequently, Judge Blake authorized the interception of wire communications on a telephone listed to DeMarco.
The intercepted conversations showed that Gerrizzo and DeMarco were part of a bookmaking operation described by a witness at trial as "extremely huge." The prosecutor obtained search warrants for both DeMarco's and Gerrizzo's premises. The warrants were executed November 18, 1979. While the investigators were in Gerrizzo's premises executing the search warrants, one actually received calls from gamblers phoning in their bets. Gambling records were seized at both apartments.
The tapes of the calls made to Gerrizzo's apartment included several from a person who identified himself as "JP" or "John." There was testimony at the trial identifying the voice of "JP" or "John" as defendant's. Defendant placed bets with Gerrizzo for his own account. In addition, he placed bets for a person named William Gotshall, also called "Bill ...