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State v. Gerardo

December 7, 1988


Feinberg, J.s.c. (Temporarily Assigned On Recall).


The motion to be decided by this court is made by defendant Andrew Gerardo to suppress certain wiretap tapes on the grounds that they were improperly sealed as called for in N.J.S.A. 2A:156A-14. Under Indictment No. SGJ173-86-1(1) defendant is charged along with others of violation of this State's racketeering statute. The order permitting the wiretap in question was effective as of February 26, 1986. In accordance with N.J.S.A. 2A:156A-12(f), the order provided for not more than twenty days of interception.*fn1 The prosecution and defense dispute the expiration date of the order. The prosecution contends it expired March 18, 1986; the defense, March 17, 1986. For purposes of this opinion, it is irrelevant which day

controls because here there was an "extension" order of March 19, 1986, dealing with an order and interception that had ended before the extension order was entered.

The issue to be decided is whether the extension order was effective so that the order of February 26 would not terminate after twenty days or whether the order of February 26 had expired due to the lapse between expiration and extension thus necessitating the tapes being sealed or being suppressed as evidence at trial. More broadly, the question is one of the need to seal tape recordings at the conclusion of a wiretap order which has been extended after a lapse of time.

N.J.S.A. 2A:156A-10 provides in part:

Upon consideration of an application, the judge may enter an ex parte order . . . authorizing the interception . . . if the court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that: f. In the case of an application, other than a renewal or extension, for an order to intercept a communication . . . which was the subject of a previous order authorizing interception, the application is based upon new evidence or information different from and in addition to the evidence or information offered to support the prior order. . . . [emphasis added.]

In addition, judicial wiretap guidelines promulgated by the Administrative Office of the Courts direct that once a wiretap order has expired by the passage of the time limit in the order, for further interceptions to be permissible, a new application pursuant to N.J.S.A. 2A:156A-10(f) shall be made unless a renewal application is submitted within seven days of the expiration date of the order. Directive # 5-1987 of October 22, 1987.

It is clear from the statute that the effect of an application for a renewal or extension is that a prosecutor is faced with the relatively light burden of showing that the investigation continues, the conduct continues and the order should likewise continue. However, the legislature afforded a potential investigee certain protections by providing that where a renewal or extension is not involved, the application must be based on new or different additional evidence. It follows, therefore, that the

legislature believed that a lapse between the time of expiration and application for extension was significant.

Here, this court is faced with a novel issue which presents an analogous situation. A lapse of time between the expiration of the wiretap order, and the point at which tapes would be sealed by the issuing judge or an extension would become effective, is here at issue. In this situation, the key is affording a potential investigee protective measures due. This is manifested by avoiding the possibility of tape-tampering which is tantamount to preserving the integrity of the tapes. In conjunction with protecting potential investigees, such measures serve to protect the image of the judicial system itself by negating even the appearance of possible foul play.

The statutory and case law on the precise issue of sealing requirements in the event of a short lapse between expiration and "extension" is not unequivocal. N.J.S.A. 2A:156A-14 sets out in part:

The import of the statute is two-fold. First, it is to protect the integrity of the tapes; and second, is to protect investigees from possible overreaching. The statute states that upon expiration of the order or any extension, the tapes must be immediately sealed. However, the statute fails to define what is ...

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