This matter comes before this court on a motion filed by defendant Joseph Laurence, which seeks to suppress evidence obtained by the State as a result of consensually intercepted communications between himself and a confidential informant.
On June 1, 1988, a State Grand Jury indicted George Fresolone and four other alleged organized crime members for the offenses of racketeering, usury, business of criminal usury, promoting gambling and conspiracy to commit those offenses. As a result of that indictment George Fresolone agreed to become a confidential informant and agreed to provide information to the New Jersey State Police. In August of 1989, Mr. Fresolone consented to wear an onbody monitoring device which would record his conversations with alleged members and/or associates of the organized crime groups with which he was allegedly involved. The Attorney General's designee, pursuant to his authority under N.J.S.A. 2A:156A-4(c) periodically authorized the interception of such conversations. These authorizations were in effect from August 1, 1989 until August 26, 1990.
One of the people with whom George Fresolone became involved during his course of cooperation with the State was the defendant Joseph Laurence. On several occasions, Mr. Fresolone, while wearing an on-body monitoring device, met and spoke with the defendant. At least one of those conversations
allegedly involved a request by defendant to obtain a loan at a usurious interest rate, whereupon defendant, after receiving the loan, would lend it to another at an even higher usurious interest rate, thereby earning a profit for himself. Joseph Laurence was thereafter charged with Conspiracy to Commit Criminal Usury, second degree, contrary to N.J.S.A. 2C:21-19(a) and Conspiracy to Engage in the Business of Criminal Usury, second degree, contrary to N.J.S.A. 2C:21-19(b).
Defendant asserts that the consent form and procedures used to obtain authorization from the Attorney General or his designee to consensually intercept conversations in this matter are tantamount to an administrative rule and therefore are void for not having been promulgated in accordance with the Administrative Procedure Act (APA) N.J.S.A. 52:14B-1 et seq.. Thus, he contends that all tapes seized pursuant to such procedures should be suppressed. Furthermore, defendant asserts that the procedures which are consistently utilized by the Division of Criminal Justice in this and all other cases to obtain authorization are tantamount to an administrative rule and since they were not promulgated in accordance with the APA they should be declared void. Additionally, defendant argues that the consensually intercepted communications should be suppressed because the orders of authorization were deficient. He asserts that one order was not signed and that others were typed, signed and dated after the Attorney General's designee orally approved such requests. Finally, defendant argues that Deputy Attorney General (DAG) David Brody violated RPC 3.7 since DAG Brody may be needed as a witness in this case which he previously presented to the Grand Jury. Defendant asserts that DAG Brody obtained oral authorization from the Attorney General's designee to intercept communications before he obtained the factual basis for the requests from New Jersey State Police Detective Quirk, and thus DAG Brody may be needed to testify at trial about the circumstances surrounding the granting of the authorization.
Initially, this court finds that the consent form and procedures used by the Division of Criminal Justice in this case do not amount to an administrative rule for the reasons hereinafter set forth, and were used merely as a means of memorializing the Attorney General's designee's authorization for the consensual interception. Thus, the consent forms and procedures used did not have to be promulgated in accordance with the APA. It is, therefore, not necessary for this court to determine whether these procedures consistently amount to an administrative rule as argued by defendant.
The Attorney General or his designee may authorize the interception of communications. N.J.S.A. 2A:156A-4(c) provides that it shall not be unlawful for:
Any person acting at the direction of an investigative or law enforcement officer to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made unless the Attorney General or his designee or a county prosecutor within his authority determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception.
The Attorney General has set up a procedure which must be followed before authorization to consensually intercept communications will be given. Pursuant to this procedure a factual basis for the requests must be submitted to the Attorney General or his designee. After reviewing the information submitted, the Attorney General or his designee makes a determination as to whether reasonable suspicion exists that evidence of criminal conduct will be derived from such interception. If the Attorney General's designee finds that it so exists and if one party to the communication consents to the interception, the Attorney General's designee will authorize the consensual interception of such conversations. This procedure was used in the case at bar.
After obtaining Mr. Fresolone's consent to the interception, DAG Brody, based upon investigative information received, telephonically read the information to Detective Quirk who verified its accuracy and orally adopted those facts as the bases
for the requests. Subsequently, DAG Brody either telephonically, or in writing, submitted the factual bases to the Attorney General's designee. After reviewing the information submitted and determining that reasonable suspicion existed, periodic authorizations were given, either verbally or in writing, by the Attorney General's designee. These authorizations allowed communications to be intercepted from August 1, 1989 until August 26, 1990.
The Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. allows state agencies to adopt administrative rules only upon notice and compliance with N.J.S.A. 52:14B-2(e). A rule not adopted in accordance with those procedures is invalid. N.J.S.A. ...