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State v. Toth

June 13, 2002

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FULLER TOTH, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



Before Judges Braithwaite, Coburn and Weissbard. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 01-01-00018.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2002

The State appeals by leave granted from an order suppressing statements defendant made during a telephone conversation that was intercepted pursuant to a consensual interception authorized by the Gloucester County Prosecutor's "designee" under N.J.S.A. 2A:156A-4c. The central issue on appeal is whether the word "designee" authorizes the Attorney General and county prosecutors to name more than one assistant attorney general and assistant prosecutor as an authorized designee pursuant to N.J. S. A. 2A:156A-4c. In granting defendant's motion to suppress, the judge interpreted the statue to limit the Gloucester County prosecutor to appoint only one designee.

On appeal, the State argues that: (1) "designee" authorizes the prosecutor "to provide for multiple designees;" (2) "[t]he appointment of multiple designees is not a critical violation of the wiretap act requiring suppression of the evidence;" and (3) the Law Division "order requiring the prosecutor to produce information regarding internal procedures was in error." We agree with the State that the word "designee" authorizes multiple designees and therefore reverse the order granting defendant's motion to suppress. Our decision on point one renders the resolution of point two unnecessary. We decline to address point three because the contested information was not presented to the motion judge for review. We are therefore unaware of what the information is and are consequently unable to review this issue.

There is a cross-appeal filed by defendant. He asserts that the motion judge erred in suppressing only the intercepted communications and should have also suppressed the "evidence obtained from the conversations as well." Because of our resolution of point one of the appeal, the cross-appeal is moot.

I.

Between November 29, 2000, and December 1, 2000, the Pitman Police Department and the Gloucester Prosecutor's Office conducted an investigation into the drug possession and distribution activities of defendant. The State obtained a quantity of marijuana from J.O., *fn1 a juvenile, and also a statement from her that she sold the drugs for defendant on consignment. She agreed to participate in monitored and recorded telephone conversations as part of the investigation. Telephone conversations between J.O. and defendant were monitored and recorded pursuant to a consensual interception authorization executed by Gloucester County Senior Assistant Prosecutor Michael S. Curwin on November 30, 2000. At some point after the consensual intercepts began, J.O. arranged to meet defendant in Pitman, where defendant was arrested while approaching J.O.'s home.

On January 9, 2001, indictment number 01-01-00018 was returned by the Gloucester County grand jury charging defendant with third degree distribution of marijuana, N.J.S.A. 2C:35- 5a(1) and N.J.S.A. 2C:35-5b(11); and second degree employment of a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6.

On or about September 7, 2001, defendant filed a motion to suppress the consensually recorded telephone conversations, alleging that Curwin was not authorized to approve consensual interceptions. On September 28, 2001, the return date of the motion, the judge reviewed in camera the memo designating those prosecutors allowed to authorize consensual interceptions. The State then produced a redacted copy of the Gloucester County Prosecutor's November 14, 2000 memo authorizing Curwin to approve consensual interceptions pursuant to N.J.S.A. 2A:156-4c. The redacted portion of the memo was deemed not subject to discovery by the State. Before the hearing concluded, the judge ordered the State to produce additional documents related to the redacted portion of the memo.

On October 12, 2001, the State filed a motion for leave to appeal the order to produce further documentation. On January 10, 2002, we granted the State's motion. That appeal is docket number A-2226-01.

On the same date, October 12, 2001, the judge granted defendant's motion to suppress the intercepted telephone calls. On October 22, 2001, the State filed a motion for reconsideration of the order to suppress. The judge considered and denied the Attorney General's motion to appear as amicus curiae. The prosecutor relied on the Attorney General's brief in support of its motion for reconsideration, but after a hearing on November 2, 2001, the judge denied the motion.

On November 16, 2001, the Attorney General, pursuant to N.J.S.A. 52:17B-107a, superceded the Gloucester County Prosecutor's Office for purposes of this appeal. On November 21, 2001, the Attorney General filed a motion for leave to appeal from the order denying reconsideration. On December 12, 2001, defendant filed a motion for leave to cross-appeal from the order denying his motion to suppress any and all evidence arising from the intercepts including observations of him and his subsequent arrest. On January 10, 2002, we granted the State's motion for leave to appeal (docket number A-2206-01) and consolidated it with A-2226-01. We also granted defendant's motion for leave to cross-appeal.

II.

The State argues that, based on the longstanding statutory principle that singular words in statutes are to include and apply to the plural form, the only reasonable reading of N.J.S.A. 2A:156A-4c authorizes the Attorney General and county prosecutors to designate multiple persons to review and authorize consensual intercepts. It claims that N.J.S.A. 2A:156A-4c must be read in light of N.J.S.A. 1:1-2. It ...


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