On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
King, O'Brien and Simpson. The opinion of the court was delivered by O'Brien, J.A.D.
In this case we address a perceived inconsistency in the New Jersey Code of Criminal Justice (the Code) between the required presumptive sentence and the presumption of nonimprisonment as they apply to gambling sentences, and we disagree with the need for the sentencing judge to find that "imprisonment is necessary for the protection of the public" in order to impose a term of imprisonment as a condition of probation, as ruled in State v. Hess, 198 N.J. Super. 322 (App.Div.1984).
Defendant appeals from (1) the denial of his motion to suppress evidence obtained pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., (2) the amendment of his plea agreement by the trial judge, and (3) the imposition of a custodial term for third-degree offenses, allegedly violating the presumption of nonimprisonment contained in the Code, N.J.S.A. 2C:44-1e. The State cross-appeals from the sentence imposed as violative of the presumptive sentence required by N.J.S.A. 2C:44-1f. We affirm denial of the suppression motion, direct dismissal of the charges as agreed in the plea agreement, vacate the sentences imposed and remand for resentencing.
Defendant entered pleas of guilty to one count in each of two separate multi-count indictments, being numbered S-239-80 and S-127-81. The counts to which he pled each charged him with conspiracy to promote gambling contrary to N.J.S.A. 2C:5-2 and 2C:37-2, third-degree offenses. As part of the plea agreement, the State agreed to move at sentencing to dismiss the remaining charges against defendant contained in both indictments, as well as a count in one of the indictments charging defendant's wife with aiding and abetting. Defendant preserved his right to appeal the denial of his motion to suppress pursuant to R. 3:5-7(d). Defendant was sentenced to concurrent terms of two years in State Prison.
At sentencing, pursuant to the plea agreement, the prosecutor initially moved to dismiss the remaining charges as well as the charge against defendant's wife. However, when defendant indicated his intention to appeal by seeking bail pending appeal, the sentencing judge permitted the prosecutor to withdraw his motion to dismiss the remaining counts, as well as the count against defendant's wife, pending disposition of the appeal. Defendant describes the judge's action as follows: "The sentencing judge agreed to the prosecutor's request and amended the plea agreement by reinstating the dismissed charges pending the outcome of defendant's appeal."
On this appeal, defendant argues: (1) that his motion to suppress evidence obtained by wiretap should have been granted because the supporting affidavit (a) did not establish probable cause, and (b) failed to show that other normal investigative techniques had failed or were reasonably unlikely to succeed; (2) the plea agreement should be vacated because it was not adhered to by the sentencing judge, and (3) that a custodial term should not have been imposed in view of the presumption of nonimprisonment contained in N.J.S.A. 2C:44-1e. As noted, on its cross-appeal the State contends that, having made the decision to impose a sentence of imprisonment, the sentencing judge was obliged to impose the presumptive sentence required by N.J.S.A. 2C:44-1f.
Defendant was arrested on December 4, 1979 on the charges which resulted in Indictment S-239-80. Execution of search warrants on that day uncovered gambling records which implicated defendant and his coconspirators. That arrest arose out of the electronic surveillance of conversations between defendant and Warren DeGroat over a telephone in Union City, New Jersey. The motion to suppress under review did not relate to the evidence obtained on that wiretap.
Subsequent to defendant's arrest the police continued to investigate illegal gambling activities on the part of defendant. This investigation revealed the involvement of Louis E. Cevoli, who operated a delicatessen in Rutherford, New Jersey. Application for an order of authorization to intercept a wire or oral communication pursuant to N.J.S.A. 2A:156A-9 was made to the assignment judge of Bergen County, one of the judges authorized to receive such applications. The application was supported by the affidavit of a senior investigator with the Bergen County Prosecutor's Office. The order authorized the interception of oral communications on two telephones located in Cevoli's Deli and two telephones listed to the residence of Louis Cevoli. It is the evidence obtained through these wiretaps that defendant's motion sought to suppress.*fn1
We have carefully reviewed defendant's arguments concerning the denial of his motion to suppress in light of the legal principles involved and affirm the denial of defendant's motion substantially for the reasons stated by Judge John J. Cariddi in his oral opinion on April 5, 1982.
Affirmance of the denial of defendant's motion to suppress makes it unnecessary to discuss the propriety of the ruling by the sentencing judge permitting the State to withdraw its motion to ...