State v. Barclay, 479 N.J. Super. 451 (App. Div. 2024); State v. Wildgoose, 479 N.J. Super. 331 (App. Div. 2024). Judge Susswein seems often to write published opinions in criminal appeals that are out of the ordinary in some way. Mercifully, he generally writes in a way that makes the cases intelligible even to practitioners who handle only civil matters. Yesterday and today saw one such opinion by Judge Susswein each day.
State v. Barclay, decided today, “present[ed] a novel statutory construction question under the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37. Pursuant to N.J.S.A. 2A:156A-4(c) (Section 4(c)), law enforcement officers may intercept and record a telephonic communication when a party to the conversation allows them to listen in on the phone call.” Such recordings are known as “consensual interceptions,” because section 4(c) requires police to obtain the advance approval of the attorney general, a county prosecutor, or their designee.
Defendant, convicted of aggravated sexual assault on a child, “W.B.,” did not dispute that “W.B. consented to the law enforcement interception of the telephone conversation. Nor [did] defendant dispute the detectives directing the call obtained prior authorization from an assistant prosecutor designated by the county prosecutor to grant such approval. Rather, defendant contends the assistant prosecutor’s prior approval was invalid because it was not provided to the detectives in writing, thus requiring suppression of the recording.” Defendant asserted, however, in seeking post-conviction relief, that his counsel had been inadequate for failing to make the argument that the prosecutor’s approval was required to be in writing.
Judge Susswein did not agree. After providing useful background about the standards for post-conviction relief and the historical evolution of the Wiretap Act, he invoked “the fundamental goal of statutory construction[: ] to ascertain the Legislature’s intent.” He looked first to the plain language of the statute and observed that that plain text did not state that written approval was required. Instead, it was silent on the issue. The panel declined “to add words to [the] statute to change its meaning.” Moreover, since another section of the Wiretap Act did provide expressly for a written authorization in a different context, that “confirms the Legislature knows how to specify when Attorney General/county prosecutor/designee prior approval must be in writing but chose not to include that requirement with respect to approving a request to conduct a consensual interception.”
There were other bases for the panel’s ruling as well. Judge Susswein cited caselaw under the 1975 version of section 4(c) that stated that that section did not appear to require a writing. The statute was amended in 1999, but the Legislature did not alter section 4(c). “[T]he Legislature is presumed to be aware of judicial construction of its enactments.” The fact that the Legislature did not add a writing requirement in the 1999 amendments confirmed that no such requirement was intended.
Finally, defendant argued that State v. K.W., 214 N.J. 499 (2013), supported a writing requirement. Judge Susswein rebuffed that contention. K.W. did not mention any such requirement, and it “focused solely on the timing of the consensual-intercept approval, not the method by which it was communicated to the detective” (emphasis by Judge Susswein).
Defendant’s demand for a writing requirement was thus meritless. “It is not ineffective assistance of counsel for defense counsel not to file a meritless motion.” The panel therefore affirmed the Law Division.
State v. Wildgoose was a more complicated appeal. It involved the Jessica Lunsford Act, N.J.S.A. 2C:14-2 (“JLA”), which “prescribes a mandatory twenty-five-year sentence for aggravated sexual assault of a child under the age of thirteen. The mandatory minimum sentence can be reduced by up to ten years, but only by the prosecutor through a plea agreement. A judge, moreover, may not impose a prison term less than the one agreed to by the prosecutor.”
The JLA required that guidelines be promulgated to ensure statewide uniformity in the offering of plea bargains by prosecutors. “The Guidelines employ a graduated system differentiating between pre- and post-indictment plea offers. Prosecutors are expressly prohibited from tendering the most lenient plea offer allowed under the JLA—a ten-year sentence reduction—once a defendant is indicted. The question of first impression raised in this appeal is whether the graduated plea provision in the Guidelines violates a defendant’s constitutional rights when the prosecutor chooses to tender the initial plea offer after indictment, thereby automatically foreclosing a ten-year sentence reduction.”
In a lengthy opinion that is well worth reading in full, Judge Susswein ultimately turned to a comparable case decided by the Supreme Court: State v. A.T.C., 239 N.J. 450 (2019). There, the Court upheld the JLA and the guidelines against a facial challenge. But in order to “ensure statewide uniformity and facilitate judicial review to guard against the arbitrary or capricious exercise of prosecutorial discretion,” the Court required that prosecutors must provide a statement of reasons for their decision to offer a reduced term of imprisonment. But the defendant in that case had waived his right to indictment, so the Court had no occasion to address the graduated plea provision implicated in Wildgoose.
Judge Susswein followed “the analytical template and remedy devised in A.T.C.” and upheld the constitutionality of the graduated plea feature “subject to a condition: when a prosecutor elects to tender the initial plea offer after indictment, the statement of reasons required by A.T.C. should include an explanation for the timing of the plea offer or else an explanation that the graduated plea provision had no impact on the sentence reduction authorized by the plea offer. When a prosecutor chooses by the timing of the plea offer to automatically preclude the maximum ten-year sentence reduction, the rationale for that decision should be part of the statement of reasons required by A.T.C. for the decision to offer a prison term ‘between fifteen and twenty-five years.'” Id. at 475.”
To that limited extent, defendant prevailed. But the panel rejected his other constitutional arguments while vacating and remanding for the Law Division to develop a record “by requiring the prosecutor to provide an explanation for the decision to withhold a pre-indictment plea offer in accordance with this opinion. The PCR judge shall review the explanation provided by the prosecutor and determine whether the prosecutor’s discretion was exercised in an arbitrary and capricious manner as to warrant further judicial relief.” The panel “offer[ed] no opinion on whether withholding a pre-indictment plea offer in this case was inappropriate, or whether defendant suffered any prejudice from that decision.”