Opinion
DOCKET NO. A-5983-13T3
12-24-2015
MARC A. JORDAN, Plaintiff-Appellant, v. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, ACTING ATTORNEY GENERAL JOHN J. HOFFMAN, MONMOUTH COUNTY PROSECUTOR'S OFFICE, MONMOUTH COUNTY ACTING PROSECUTOR CHRISTOPHER J. GRAMICCIONI, FORMER MONMOUTH COUNTY PROSECUTOR JOHN KAYE, FORMER MONMOUTH COUNTY ASSISTANT PROSECUTOR THOMAS V. CAMPO and FORMER MONMOUTH COUNTY PARALEGAL NANCY SAUTER, Defendants-Respondents.
Marc A. Jordan, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brian P. Wilson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-948-12. Marc A. Jordan, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brian P. Wilson, Deputy Attorney General, on the brief). PER CURIAM
Marc A. Jordan appeals from a denial of his motion seeking relief from an order dismissing his complaint without prejudice against defendants, the State of New Jersey, the Office of the Attorney General, Acting Attorney General John J. Hoffman, the Monmouth County Prosecutor's Office (MCPO), MCPO Acting Prosecutor Christopher J. Gramiccioni, former MCPO Prosecutor John Kaye, former MCPO Assistant Prosecutor Thomas V. Campo, and former MCPO Paralegal Nancy Sauter (State Defendants). We affirm.
This matter arises out of the issuance of a judicially authorized wiretap order in 1997 which related to Jordan's criminal conduct. Jordan was subsequently arrested, indicted and convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); one count of second-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree theft by extortion, N.J.S.A. 2C:20-5; one count of second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-5(b); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a); and one count of third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). Jordan was sentenced to a life term without parole for armed robbery pursuant to N.J.S.A. 2C:43-7.1(a), among other concurrent terms.
After a direct appeal, this court affirmed Jordan's convictions and sentence. State v. Jordan, No. A-2414-00 (App. Div. Nov. 18, 2002). On February 28, 2003, the New Jersey Supreme Court denied Jordan's petition for certification. State v. Jordan, 175 N.J. 549 (2003). Between 2004 and 2008, Jordan filed, and the trial court denied, four petitions for post-conviction relief. See, e.g., N.J. v. Jordan, No. A-3379-07 (App. Div. Feb. 2, 2009) (slip op. at 1).
On February 7, 2012, Jordan filed a civil lawsuit in the Superior Court of New Jersey against the State Defendants. Jordan alleged the wiretaps amounted to a per se violation of N.J.S.A. 2A:156A-4(c), because the first assistant prosecutor, rather than the Prosecutor, authorized the wiretaps in question. Jordan claimed the statute did not permit a Prosecutor to delegate his authority to authorize wiretaps, even when the Prosecutor is unavailable.
By order dated October 9, 2012, Judge Lawrence M. Lawson dismissed Jordan's complaint without prejudice in a comprehensive written opinion. The judge rejected Jordan's argument that the wiretap was improperly authorized and that a per se violation occurred. Specifically, the judge determined that the Prosecutor was away at a convention when the request for authorization was made and thus, the first assistant was properly delegated to authorize wiretaps in his stead. The judge further determined that either prosecutorial immunity or qualified immunity insulated the State defendants from liability with regard to the authorization of the wiretap.
Jordan filed a motion on June 19, 2014, to be relieved of the order dismissing the complaint. Jordan argued that he was entitled to the relief as the decision to dismiss was contrary to our Supreme Court decision in State v. K.W., 214 N.J. 499 (2013). K.W. involved the delegation of authority for a consensual intercept pursuant to N.J.S.A. 2A156A-4(c). Our Supreme Court held that even where the authorization was made in good faith, if the person was not authorized in accord with the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -34, the violation required suppression of the evidence. See K.W., supra, 214 N.J. at 513.
Jordan argues as well that the order also "denied his criminal motion." However, no criminal motion was filed.
The motion was brought pursuant to Rule 4:50-1, applicable to relief from a final judgment or order. Judge Lawson noted the order under review was not a final order as the dismissal was without prejudice. The judge considered Jordan's motion as one for reconsideration pursuant to Rule 4:49-2.
Here, the judge found, and we agree, that the controlling decision regarding Jordan's argument as to the lack of authorization was State v. Travis, 133 N.J. Super. 326 (App. Div.), certif. denied sub nom. State v. Juliano, 68 N.J. 161, certif. denied sub nom. State v. Nasisi, 69 N.J. 84 (1975). In Travis, which was in effect at the time of the authorization involving Jordan, we permitted the designation of an Acting Prosecutor to assume the duties of office during the Prosecutor's absence to initiate wiretap applications. Id. at 330-31. As the judge found, this is the procedure employed by the MCPO for the authorization in 1997.
On July 25, 2014, Judge Lawson rendered an oral opinion, without appearance by either Jordan or counsel for the State Defendants. After careful consideration of the prior relevant history of the matter, the October 12, 2012 order and opinion, and the applicability of K.W., the judge found no basis for the relief sought by Jordan. From our review of the record and after consideration of relevant law, we find no basis to disturb the judge's well-reasoned decision.
Despite being provided with the opportunity to appear at the motion, Jordan declined to be transported from state prison. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION