State of New Jersey v. Christopher Mazzarisi , 440 N.J. Super. 433 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1860-13T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
April 28, 2015
v.
APPELLATE DIVISION
CHRISTOPHER MAZZARISI,
Defendant-Respondent.
________________________________________________________________
Argued October 15, 2014 – Decided April 28, 2015
Before Judges Lihotz, Espinosa and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
12-04-0765.
Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney; Mr. Heinzel, of counsel
and on the briefs).
David W. Fassett argued the cause for
respondent (Arseneault & Fassett, LLP, and
Weir & Plaza, LLC, attorneys; Mr. Fassett and
Edward J. Plaza, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
The facts and issues in this case call upon us to examine the
application of the Supreme Court's decisions in State v. Sugar
(Sugar I), 84 N.J. 1 (1980), and State v. Sugar (Sugar II), 100
N.J. 214 (1985). As in Sugar, the police surreptitiously recorded
conversations between a defendant and his attorney. There are,
however, significant factual differences in the two cases. In
Sugar, police eavesdropped upon the conversations and used the
information obtained to secure search warrants that resulted in
the seizure of incriminating evidence and the filing of charges
against the defendant. Sugar I, supra, 84 N.J. at 5-8. In this
case, the tape recording occurred after charges had been filed
when defendant appeared with his attorney to surrender. This was
the day after a witness reported defendant had fired a gun at her,
a search warrant was issued, and officers executing the warrant
at defendant's residence observed a bullet hole in the wall and
seized a gun and shell casing. An additional fact that
distinguishes this case from Sugar is that the State maintains
that no officer listened to the confidential conversation as it
was being recorded.
Defendant successfully moved to suppress the testimony of
three witnesses and dismiss the indictment against him, albeit
without prejudice. After we denied the State's motion for leave
to appeal, the Supreme Court granted the State's motion, summarily
remanding the matter to this court for consideration on the merits.
2
A-1860-13T4
For the following reasons, we affirm the suppression of the three
witnesses' testimony and reverse the dismissal of the indictment.
I
We begin with a review of the facts and reasoning of Sugar I
and Sugar II, which concerned the prosecution of Harry D. Sugar
for the murder of his wife. The issue concerning the "flagrantly
illegal conduct" of the law enforcement officers, Sugar I, supra,
84 N.J. at 5, arose before Sugar was indicted. Not only did law
enforcement officers intentionally eavesdrop on conversations
between Sugar and his attorneys, they used the information obtained
as the basis for search warrant affidavits. Id. at 7. Sugar's
right to a fair trial was further threatened by the dissemination
of his privileged statements to the public. Id. at 9.
Sugar was arrested on a material witness warrant shortly
after midnight on August 7, 1979. Id. at 5. He had two meetings
with counsel that morning. The first was with a law firm associate
at approximately 2:40 a.m., and the second was with his attorney,
Jay H. Greenblatt, later that morning. Id. at 5-6. Each of the
meetings occurred in an interrogation room with a concealed
microphone. Ibid.
When Sugar's meeting with the law firm associate commenced,
Lieutenant Michael Joseph Tirelli of the Vineland Police
Department went into his office with Joseph Leon Soracco, Chief
3
A-1860-13T4
of Detectives, of the Cumberland County Prosecutor's Office. Id.
at 6. Tirelli activated a monitor in his office that permitted
them to listen to the conversation between Sugar and his attorney,
telling Soracco, "it would be a good idea to know if we had a
[sic] right guy or not." Ibid. He also recorded part of the
conversation. Ibid.
At the second meeting, Sugar met with both Greenblatt and his
associate in the same interrogation room. Ibid. Once again,
Tirelli activated the monitor in his office and recorded the
conversation. In addition to Tirelli and Soracco, Lieutenant Guy
Buscemi and Detective John Mazzeo1 eavesdropped upon the
conversation. Id. at 6-7. Tirelli instructed Mazzeo to take
notes and prepare criminal complaints against Sugar. Id. at 7.
Tirelli summarized the eavesdropped conversations for Detective
William L. Walters, who was drafting affidavits for a search
warrant for Sugar's home. Id. at 6-7.
Tirelli led the officers in the search of Sugar's home, later
boasting to Greenblatt they "had demonstrated an uncanny ability
to locate what they were seeking quickly." Id. at 7. Although
the fact of the illegal eavesdropping had been disclosed to the
Cumberland County Prosecutor, no one advised Greenblatt that
1
Other than Soracco, all officers are members of the Vineland
Police Department.
4
A-1860-13T4
police officers had eavesdropped and recorded his conversation
with his client. Id. at 7-8. As additional search warrants were
obtained and executed, Greenblatt began to suspect the police had
eavesdropped upon his interview with his client, a suspicion
confirmed by an anonymous caller. Id. at 8. Greenblatt contacted
the Division of Criminal Justice in the Attorney General's Office
and, after the eavesdropping was confirmed, the criminal
prosecution was assumed by the State. Ibid.
The harm caused was not limited to the police officers'
intrusion into the attorney-client relationship. Accounts of the
eavesdropping made their way into two newspapers and "detailed
descriptions of [Sugar's] conversations circulated" in Vineland.
Id. at 9.
Sugar's constitutional claims were based upon the guarantees
provided by the Sixth Amendment of the United States Constitution
and article I, paragraph 10 of the New Jersey Constitution, which
"establish a defendant's right to the assistance of counsel in
criminal prosecutions." Sugar I, supra, 84 N.J. at 15-16. The
Court stated there were two possible ways in which the illegal
eavesdropping2 could "irreparably compromise[]" the ability of
Sugar's attorney to be effective:
2
The Court commented on the potential illegality of the officers'
conduct, noting "the willful interception of oral communications
5
A-1860-13T4
The first is that official knowledge of the
contents of the overheard conversation would
prevent defendant's counsel from constructing
and presenting an adequate defense. The
second potential source of impairment arises
from public knowledge of the interview between
defendant and his attorneys.
[Id. at 17.]
The Court focused on the first of these potential sources of
impairment. Id. at 18.
In Weatherford v. Bursey, 429 U.S. 545, 552-54, 97 S. Ct.
837, 842-43, 51 L. Ed. 2d 30, 38-39 (1977), the United States
Supreme Court declined to adopt a per se rule that every intrusion
into attorney-client consultations constituted a violation of the
Sixth Amendment warranting reversal of a conviction. Our Supreme
Court agreed, stating: "Not every intrusion into the attorney-
client relationship results in a denial of the right to effective
assistance of counsel." Sugar I, supra, 84 N.J. at 18. The Court
adopted the principle that dismissal of a prosecution based upon
the denial of effective assistance of counsel "is the appropriate
remedy for official intrusion upon attorney-client relationships
only where it destroys that relationship or reveals defendant's
trial strategy." Id. at 21. The Court concluded neither occurred
in Sugar I. Id. at 21-22.
by electronic means, if not specifically permitted," is a crime
under both State and federal law. Id. at 13-14 (citing 18 U.S.C.A.
§ 2511(1)(a); N.J.S.A. 2A:156A-3(a)).
6
A-1860-13T4
Nonetheless, the Court stated the role of law enforcement
officers in the intrusion raised the question of whether a
dismissal might be required as a matter of fundamental fairness
even in the absence of a Sixth Amendment violation. Id. at 14-
15. Under such circumstances, the prosecution might proceed if
"carefully purged of all taint from investigatory excess." Id.
at 15. To be effective, the exclusionary remedy had to
"vindicate[] defendant's constitutional rights and deter[] future
incidents of such egregious conduct." Id. at 25.
Noting the role of law enforcement officers in the egregious
conduct, the Court dictated the following remedy:
We find that under the circumstances of
this case, the only appropriate remedy is
exclusion of tainted witnesses and evidence
from the grand jury and at trial. Because the
violation of the right to the effective
assistance of counsel was so serious, and
because the guarantee of a fair trial has been
so threatened by the insolence of local law
enforcement officers, the fruits of their
lawlessness must not be allowed to aid a
prosecution in any manner. . . . To permit
the State to proceed before the grand jury
with illegally obtained evidence would expose
defendant to the threat of a tainted and
compromised prosecution. It would fail to
deter those who would seek the publicity of
an indictment even if a subsequent trial would
fail for lack of untainted evidence. . . .
[The grand jury] may not receive evidence
obtained in blatant violation of the federal
and State constitutions, [U.S. Const., amends.
IV, VI; N.J. Const. art. I, ¶¶. 7, 10], and
State law proscribing illegal electronic
surveillance, N.J.S.A. 2A:156A-3, -21.
7
A-1860-13T4
Accordingly, we hold that a threshold hearing
to determine the extent of taint should take
place before the grand jury begins to receive
evidence.
[Id. at 25-26 (emphasis added) (internal
citations omitted).]
At the hearing that followed Sugar I, the trial court
determined the only witness who had to be excluded in the grand
jury proceedings and at trial was Tirelli. Sugar II, supra, 100
N.J. at 225-26. The Court reviewed that decision in Sugar II.3
The Court observed that because its earlier decision
addressed taint arising from two different sources – either
exposure to the publicity about the eavesdropped conversations or
participating in the eavesdropping - there was a need to clarify
the scope of disqualification for witnesses tainted by the illegal
conduct. Id. at 226-27. The Court described "the purport" of its
prior decision:
[A] witness with direct first-hand knowledge
of the contents of the unlawful intercept,
particularly a witness who had engaged in or
attended the intercept itself, [cannot]
thereafter testify in the prosecution of
defendant. . . . We confirm and reiterate
that ruling: as a matter of law, a person who
actually participated in, attended, or was
contemporaneously informed of the unlawful
intercept must be deemed to have been tainted
by his direct knowledge of the intercept; he
is therefore disqualified to testify as a
witness in defendant's prosecution.
3
Sugar did not challenge the participation of Soracco, Buscemi,
or Walters as witnesses.
8
A-1860-13T4
[Ibid. (emphasis added).]
The point that required clarification concerned comments the
Court made in Sugar I addressing the potential prejudice arising
from publicity about the intercepted conversations. Id. at 227.
In Sugar I, the Court stated that witnesses should be permitted
to testify who "can lay aside [their] impression or opinion, and
render testimony free from the influence of the illegally grounded
publicity." Sugar I, supra, 84 N.J. at 24-25 (citation and
internal quotation marks omitted). In Sugar II, the Court
clarified this statement:
This direction . . . was not intended to apply
to witnesses, such as Mazzeo or Tirelli, who
were actually responsible for the illegal
wiretap. Our direction concerning witnesses
who could overcome any potential taint was
included in that portion of the Court's
opinion dealing with prejudicial publicity.
This focused on whether information relating
to the illegal intercept had reached members
of the public, including potential witnesses,
thereby imperiling a fair trial . . . .
In this context, we were not referring
to persons who had actually participated in,
attended, or contemporaneously received
information of the illegal intercept.
Witnesses so directly involved in the illegal
intercept itself were tainted in a direct and
primary sense. We have no hesitancy in
directing that they be excluded from any
attempt to prosecute the defendant.
[Sugar II, supra, 100 N.J. at 227 (emphasis
added).]
9
A-1860-13T4
The Court described the remedy it prescribed as "the exclusion
of primarily tainted witnesses from the prosecution" and stated
it was "minimally required in view of the profoundly offensive
nature of the official misconduct in [that] case." Id. at 228.
II
The events relevant to this appeal all occurred on two days.
On November 9, 2011, defendant's nineteen-year-old girlfriend,
K.S., went to the Holmdel Township Police Department to report an
assault. We draw upon the statement she gave to police to
summarize the salient facts regarding the alleged offense.
That morning, K.S. received a text message from a friend,
which defendant misinterpreted. What began as a verbal fight
escalated. When K.S. packed her things to go, defendant pulled
out his gun. He was screaming, waving the gun around, and saying
he was going to shoot. K.S. heard a "pop" and ducked. Defendant
thwarted her efforts to call the police. K.S. stated she screamed,
kicked, and tried breaking windows to escape while defendant kept
the gun in his hand. K.S. attempted unsuccessfully to escape by
kicking the front window in the empty guest room. K.S. stated
defendant grabbed her neck and hood each time she kicked at the
window. After she was able to leave through the garage door,
defendant came outside, unarmed, and threw her keys to her. K.S.
drove directly to the police station, where red marks were observed
10
A-1860-13T4
on her neck, arms, and on the inside of her wrist. K.S. reported
she believed defendant had a rifle and shotgun.
That day, a municipal court judge granted K.S. a temporary
restraining order against defendant and issued a search warrant
authorizing the police to enter defendant's home to search for and
seize his firearms and firearms purchase or identification card.
Defendant's father, who resided with defendant, also gave his
consent to a search of the residence.
Detective Eric Hernando conducted the search of defendant's
home with Sergeant Jeffrey Ackerson, Detective Andrew Kret, and
three others: Lieutenant Michael Smith of the Holmdel Police
Department and Detectives Peter Gosza and Jose Cruz of the Monmouth
County Prosecutor's Office. They recovered a spent .22 caliber
shell casing from the floor of the bedroom where K.S. said the
shooting occurred. There was a small hole consistent with the
size of a projectile fired from a rifle in the center of the wall
inside an open closet. The officers also seized a rifle matching
a description given by K.S. In addition, the detectives observed
extensive damage inside the spare bedroom that included damage to
the window screen consistent with an effort to kick out the window.
A complaint was filed charging defendant with attempted
murder, aggravated assault, criminal restraint, criminal mischief,
and weapons offenses. The police were notified that defendant
11
A-1860-13T4
would come to the police station with his attorney to surrender
before 2:00 p.m. the next day.
Defendant arrived with his attorney, Edward J. Plaza, the
next day as promised. When Hernando learned they were in the
lobby, he turned on an audio and video recording system called
Case Cracker that was linked to the interview room. He entered
defendant's name and the case number into the monitor to label the
recording and then ushered Plaza and defendant into the interview
room. He positioned defendant and Plaza in the interview room so
they would be facing the covert camera located in the room and
then left them alone in the room.
Hernando testified he knew the recording device was operating
when he left defendant and counsel alone in the room. He did not
advise Plaza or defendant they were being recorded because, he
said, he was not required to do so. Hernando further stated it
was the department's standard operating procedure to video and
audio record an attorney and client when the client surrenders.
While Hernando was out of the room, Plaza instructed defendant
not to volunteer certain information about his appearance. The
instructions may be interpreted as relating to defendant's
activities after the alleged assault.
After approximately one and one-half minutes, Hernando
returned to the interview room with Ackerson and Kret. A report
12
A-1860-13T4
of the internal affairs investigation that followed includes
admissions by both Ackerson and Kret that they knew the audio and
video recording device was operating at this time.
Defendant was advised he was under arrest and served with the
complaints and warrants against him. Plaza informed the officers
defendant would not be answering any questions. Hernando testified
this was the first time he learned defendant was not going to make
a statement.
Hernando served defendant with the temporary restraining
order. Within ten minutes of their entry into the interview room,
Hernando, Ackerson, and Kret left. Hernando told defendant and
counsel he would return in a few minutes and left the interview
room to contact an assistant prosecutor regarding bail. Once
again, he did not caution defendant or his counsel they were being
recorded. However, he testified that, unlike the first occasion,
he forgot the recorder was on when he left the room.
Other than returning briefly to provide defendant with his
sweatshirt, Hernando left defendant and Plaza alone in the room
for ten minutes. During that time, there was discussion between
them that may be characterized as relating to possible drug use
by defendant. Defendant asked Plaza whether there was a concealed
camera in the room. Plaza replied, "Could be."
13
A-1860-13T4
Hernando came back and provided the bail information to
defendant and his counsel. Plaza left to speak to the assistant
prosecutor and returned to briefly discuss the bail with defendant.
In the course of that private conversation, Plaza made a statement
to defendant to the effect that he was "a decent kid" who made a
mistake, "who lost his head[,] whose got problems."
Plaza left the police station at approximately 2:15 p.m.
Hernando turned off the recording device at 2:17:39 p.m. Asked
whether he "unforgot" he had not shut off the recorder, Hernando
replied taking Plaza back to the lobby "must have made [him]
remember that [he] need[ed] to shut it off." He also admitted the
purpose of the recorder was to record defendant and his attorney.
Hernando was the lead detective on the case. It was his
decision to turn on the recording equipment in the interview room.
On cross-examination, Hernando said he believed there was a
possibility defendant would agree to be interrogated and make a
statement when he surrendered. However, he admitted that, in his
nine years' experience as a detective, no attorney has ever
permitted him to interrogate a client who surrendered.
Hernando testified a remote speaker can be connected to a
desktop computer in the detective bureau to listen to what is
being recorded in the interview room. He also said it was possible
to visually monitor the interview room on a computer screen in the
14
A-1860-13T4
detective bureau. He stated the speaker in the detective bureau
was turned off on the day of defendant's surrender.
Hernando was the only witness produced by the State at the
suppression hearing. Without providing any foundation for his
personal knowledge as to the actions or intent of Ackerson and
Kret, Hernando testified none of them "purposely [left] the video
recording system on" and none of them "listen[ed] in on any of the
conversations" between defendant and Plaza. Hernando stated he
did not review the recording contemporaneously "because there was
nothing on it that [he] needed to review." Hernando testified he
watched and listened to the DVD one time, approximately one month
before the suppression hearing, when he was asked to confirm the
accuracy of the transcript that had been prepared.
It is conceded the recording of the conversations between
defendant and his counsel violated the Monmouth County Uniform
Policy for Videotaped Review of Formal Written Statements (the
Policy). The Policy4 states explicitly,
[I]f the target meets with and speaks to his
attorney privately, the tape must be turned
off to avoid breaching the attorney/client
privilege.
4
A copy of the Policy has not been included in the record. We
rely upon quotations from the Policy included in testimony and the
trial court's opinion.
15
A-1860-13T4
The Policy states further, "videotaping procedures are to be
employed only to memorialize the reviewing and signing of a formal
written statement by an adult or juvenile targeted in an
investigation regarding a first or second degree crime." Hernando
acknowledged he was not videotaping a formal written statement.
Hernando testified he first became aware that the video
recording device had not turned off and continued to record
defendant with his attorney when his supervising lieutenant told
him the internal affairs division of the Prosecutor's Office was
looking into the matter. This testimony was inconsistent with his
earlier testimony that: (1) he knew the recorder was on when he
first left defendant and his counsel alone in the interview room
and (2) he remembered the recorder was on when Plaza left the
building and turned it off at that point.
Hernando also testified as to the results of the internal
affairs investigation.5 No criminal charges were filed against
him. He was not punished or penalized in any way. The police
department's only response to his failure to turn the video
recording device off was to require him "to review the policy
regarding the recording of interviews."
5
The report of the investigation was marked for identification.
The defense moved for the admission of all exhibits marked; the
State did not object to the admission of this report and the motion
judge listed it among the exhibits in evidence.
16
A-1860-13T4
The State presented this matter to the grand jury on April
10, 2012. Hernando was the sole witness. In his testimony, he
described his actions and observations on November 9, 2011. He
also reviewed the statement provided by K.S. on November 9, 2011,
information received from a former girlfriend of defendant's
regarding a possible motive to fabricate by K.S., and a second
statement obtained from K.S. thereafter. Although Hernando
testified defendant turned himself in, he provided no information
derived from the recorded communications between defendant and his
counsel. Further, the record does not reveal any investigative
action taken after defendant's surrender that was prompted by any
recorded communications.
III
The State conceded the taping of defendant's conversation
with his attorney violated the Policy but contended the taping of
the conversation was unintentional. Although the motion judge
stated he could not find the taping was "intentional" as a matter
of law, he noted it was "clear" the conversation should not have
been recorded, citing the Sixth Amendment to the United States
Constitution, the New Jersey Constitution art. 1, ¶ 10, and
N.J.R.E. 504, and proceeded to review the evidence in light of the
considerations identified in Sugar I and Sugar II.
17
A-1860-13T4
The court reviewed the three instances we have described: the
discussions of defendant's actions after K.S. left, defendant's
possible drug use, and Plaza's opinion he was a decent kid who
made a mistake. The court observed the violation of the Policy
had not resulted in a breakdown of the attorney-client relationship
in light of Plaza's continued representation of defendant. Next,
the court considered whether trial strategy had been revealed to
the detriment of defendant. Although describing the comments as
touching upon "guilt and innocence and things of that nature," the
court concluded the comments did not disclose trial strategy. The
motion judge found Ackerson and Kret were clearly aware of the
Policy; knew the tape was on while they were in the room; knew the
recorder needed to be shut off when an attorney and client were
speaking alone and assumed the recorder was turned off when
defendant was left alone with his attorney.
The judge concluded the violation here was a "constitutional
injury." He ordered that Hernando, Kret, and Ackerson be barred
from participating in the prosecution and, because the State's
case was presented to the grand jury through Hernando's testimony,
he dismissed the indictment without prejudice.
In its appeal, the State argues the motion judge erred in
barring the testimony of the three witnesses because the recording
of defendant's conversation with his counsel was unintentional,
18
A-1860-13T4
not prejudicial, and did not violate the Sixth Amendment. The
State further argues the disqualification of Kret and Ackerson was
arbitrary and that there was no basis to dismiss the indictment.
IV
We first consider whether the police misconduct here resulted
in a constitutional violation. "Because intrusions into the
attorney-client relationship are not per se unconstitutional,
establishing a Sixth Amendment violation requires some showing of
prejudice in terms of injury to the defendant or benefit to the
State." United States v. Noriega, 764 F. Supp. 1480, 1488 (S.D.
Fla. 1991).
[C]ourts have identified the following factors
to consider in determining whether the
requisite amount of prejudice needed to
establish a Sixth Amendment violation is
present: (1) whether the government's
intrusion was intentional; (2) whether the
prosecution obtained confidential information
pertaining to trial preparations and defense
strategy as a result of the intrusion; and (3)
whether the information obtained produced,
directly or indirectly, any evidence used at
trial, or was used in some other way to the
defendant's substantial detriment.
[Id. at 1489.]
See also Sugar I, supra, 84 N.J. at 18-19; State v. Ates, 426 N.J.
Super. 614, 628 (Law Div. 2009), aff'd, 426 N.J. Super. 521 (App.
Div. 2012), aff'd, 217 N.J. 253 (2014), cert. denied, ____ U.S.
19
A-1860-13T4
____, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014); State v. Santiago,
267 N.J. Super. 432, 436-37 (Law Div. 1993).
In Sugar I, decided more than a decade earlier, our Supreme
Court's analysis of the Sixth Amendment issue included
consideration of similar factors. There was no question in Sugar
I regarding the intentional nature of the law enforcement officers'
egregious conduct. The second and third Noriega factors, which
relate to whether information was revealed that would impact the
defense and whether that information could be used to a defendant's
detriment, Noriega, supra, 764 F. Supp. at 1489, are mirrored in
the Court's statement that dismissal of a prosecution based upon
the denial of effective assistance of counsel "is the appropriate
remedy for official intrusion upon attorney-client relationships
only where it destroys that relationship or reveals defendant's
trial strategy." See Sugar I, supra, 84 N.J. at 21.
A
The question whether the State's conduct here was intentional
requires a fact-sensitive analysis. At the outset, we note this
was not a case where the interception was the result of errors
committed by a third party, e.g., In re Pharmatrak, Inc. Privacy
Litig., 292 F. Supp. 2d 263, 267-68 (D. Mass. 2003), or due to a
design defect in equipment after the recording was believed to be
20
A-1860-13T4
terminated. E.g., Sanders v. Robert Bosch Corp., 38 F.3d 736,
742-43 (4th Cir. 1994).
In Santiago, supra, the recording of a conversation between
attorney and client by the courtroom's sound system was found
"clearly unintentional." 267 N.J. Super. at 437. Similarly, the
recording of conversations between a defendant and his attorney
that occurred as a result of the routine recording of prisoners'
telephone calls by the Bureau of Prisons was also deemed to be
unintentional in Noriega, supra, 764 F. Supp. at 1489. In neither
Santiago, supra, 267 N.J. Super. at 437, nor Noriega, supra, 764
F. Supp. at 1489, was the actual recording the product of
prosecutorial action and, in Noriega, the defendant had no
reasonable expectation of privacy in engaging in the telephone
calls under the procedure he used. Id. at 1488.
The recording in Ates, supra, 426 N.J. Super. at 623-24, was,
however, the product of prosecutorial action. Although the
intercept was conducted pursuant to a court order authorizing the
electronic interception of the defendant's telephone
communications, it violated the clear restriction in the order
that "no attorney client conversations may be intercepted." Id.
at 625 (internal quotation marks omitted). The trial court found
the interception and recording of a call to the defendant from his
attorney's office violated the wiretap order, the Prosecutor's
21
A-1860-13T4
protocol on minimization procedures, the New Jersey Wiretapping
and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to
-37, and case law. Id. at 626-27.
Still, the court concluded the interception was inadvertent.
Id. at 628. The court accepted the version of events provided by
the monitoring officer, whom he found "forthright and candid" in
admitting and explaining how he failed to notice the incoming call
and allowed it to be recorded by leaving earphones in the
monitoring device while working on the log sheet. Id. at 624,
628-29. The court further noted the officer accepted
responsibility for his error and promptly brought the violation
to the attention of his superior officer when he discovered it at
the end of his shift. Id. at 629. The court also considered this
call within the context of the significant number of calls between
the defendant and his attorney's office, which were "promptly
minimized and not recorded." Ibid. The court concluded, "rather
than establishing a pattern of unauthorized and unlawful
interception of privileged communications . . . the interception
and recording of [the privileged call was] . . . an isolated and
aberrant event." Ibid.
The conceded facts here distinguish this case from Ates,
Santiago, and Noriega. Hernando made a conscious decision to turn
on the taping device to record statements made in the interview
22
A-1860-13T4
room when defendant and his attorney were present without providing
any notice to them that they were being recorded. After Plaza
stated his client would make no statements, Hernando left defendant
and counsel alone in the room where their conversation would be
recorded. Hernando is a law enforcement officer bound to comply
with the Policy he admittedly violated. Further, in light of
Hernando's testimony he was following standard procedure, a view
echoed by both Ackerson and Kret, this was not "an isolated and
aberrant event" as in Ates. We therefore conclude the recording
of communications between defendant and his attorney was
intentional. See, e.g., Commonwealth v. Fontaine, 524 N.E.2d 75,
76-78 (Mass. 1988) (finding the recording intentional where a
defense attorney met with his client in a prison cell and the
booking officer, who knew the area was being recorded, failed to
turn off recording device or advise defendant and his attorney
they were being recorded).
B
Our next inquiry is whether the information recorded included
confidential information, Noriega, supra, 764 F. Supp. at 1489,
or revealed defense strategy, Sugar I, supra, 84 N.J. at 21.6
Although there were two statements in Sugar I that "reflect[ed]
6
Like Sugar, defendant does not argue that the intrusion
destroyed his relationship with his attorney. Sugar I, supra, 84
N.J. at 21.
23
A-1860-13T4
an awareness of possible defenses," the Court concluded that no
trial strategy had been revealed because neither statement
"amount[ed] to a strategic decision and thus cannot be used by the
State to [the] defendant's detriment." Sugar I, supra, 84 N.J.
at 22 (emphasis added).
In this case, Plaza was prudent and measured in his discussion
with defendant, even advising defendant of the possibility the
interview room could be under surveillance. The record does not
reflect that "official knowledge of the contents of the overheard
conversation would prevent defendant's counsel from constructing
and presenting an adequate defense." See id. at 17. Although
there were statements reflecting an awareness of facts that could
be relevant to the case, none of the statements by Plaza or
defendant amounted to "a strategic decision." See id. at 22. We
therefore conclude the information recorded did not reveal any
trial strategy.
C
The final Noriega factor addresses "whether the information
obtained produced, directly or indirectly, any evidence [to be]
used at trial or . . . used in some other way to the defendant's
substantial detriment." Noriega, supra, 764 F. Supp. at 1489.
The search warrants were obtained and executed and the charges
brought all before the recorded communications. Nothing from the
24
A-1860-13T4
improperly recorded conversation was presented to the grand jury.
In short, the State's case and proofs were set before the improper
recording. We are confident a remedy may be fashioned here that
will adequately safeguard the rights of defendant at trial.
Thus, although we find the recording here to be an intentional
act by law enforcement, no confidential defense strategy was
revealed and defendant need not suffer any prejudice from the
recording at trial. Therefore, the intrusion here did not rise
to the level of a Sixth Amendment violation.
Even in the absence of a constitutional violation, a dismissal
of charges may be appropriate when "conduct by law enforcement
officials . . . perverts the judicial process and turns it into a
prosecutorial tool." Sugar I, supra, 84 N.J. at 14. That is not
the case here, where neither the search warrants nor the indictment
were based upon any information revealed in the recorded
conversation. Finding no Sixth Amendment violation or any
corruption of the judicial process, we conclude dismissal of the
charges is not warranted.
V
We turn to the appropriate remedy under these circumstances.
Given the egregious conduct in Sugar I, the Court found "the only
appropriate remedy" was "exclusion of tainted witnesses and
evidence from the grand jury and at trial." Id. at 25.
25
A-1860-13T4
The State must "be 'in no better position than it would have
enjoyed had no illegality occurred.'" State v. Smith, 212 N.J.
365, 395 (2012) (quoting Sugar II, supra, 100 N.J. at 239-40),
cert. denied, ____ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558
(2013). However, even when there is a Sixth Amendment violation,
"the general rule [applies] that remedies should be tailored to
the injury suffered from the constitutional violation and should
not unnecessarily infringe on competing interests." United States
v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668, 66 L. Ed. 2d
564, 568 (1981); cf. Smith, supra, 212 N.J. at 393-401 (applying
the independent source rule to affirm denial of motion to suppress
evidence obtained as the result of a warrant flawed because the
supporting affidavit's omissions rendered it inaccurate).
The role of the exclusionary remedy employed by the Supreme
Court in Sugar I is twofold: to vindicate defendant's
constitutional rights and to deter police from such conduct in the
future. Sugar I, supra, 84 N.J. at 25. For the prosecution to
proceed, it must be "carefully purged of all taint from
investigatory excess." Id. at 15.
The State would have us rule that no remedy is required here
because there were no disclosures of trial strategy or other
information prejudicial to defendant. If we were to adopt this
argument, the exclusionary remedy would only apply to cases in
26
A-1860-13T4
which there was an actual violation of a defendant's Sixth
Amendment right to effective assistance of counsel. The remedy
prescribed by Sugar I and Sugar II is not so limited. It is
applicable as well to cases in which there has been no
constitutional violation, but fundamental fairness requires a
remedy. Sugar I, supra, 84 N.J. at 15. To read the Sugar cases
otherwise would limit the objective of the exclusionary remedy to
vindicating the violation of a defendant's rights and ignore its
purpose to deter future incidents of police misconduct. See id.
at 25. We decline to do so.
A
We first consider what is required to purge the factual
evidence of taint. Obviously, Plaza's opinion that defendant was
a good kid who made a mistake could not be used by the State in
any way, even if there had been no impropriety. At a minimum, a
careful purge requires that the references to defendant's actions
after K.S. left his residence and possible drug use be suppressed
as information obtained from the improper recording.
B
The scope of that purge also includes all "primarily tainted
witnesses." Sugar II, supra, 100 N.J. at 228. Such witnesses
include persons "actually responsible for the illegal wiretap,"
id. at 227, and those "with direct first-hand knowledge of the
27
A-1860-13T4
contents of the unlawful intercept, particularly a witness who had
engaged in or attended the intercept itself." Id. at 226.
It is clear Hernando is "tainted in a direct and primary
sense" as defined in Sugar II. See id. at 227. It was his
decision to activate the monitoring and recording device in the
illusory hope that defendant might be the first suspect in his
nine years' experience to make a statement when he surrendered
with counsel. Hernando admitted he intentionally turned on the
recording device for the purpose of recording communications in
the interview room and knowingly left defendant and his counsel
alone in the room with the recorder operating. It was, therefore,
his conscious objective to record communications in the interview
room surreptitiously, an objective he did not abandon when attorney
and client were left alone in the room. He was, therefore,
admittedly a person who was "directly involved in the illegal
intercept itself," having "actually participated in [and] attended
. . . the illegal intercept." See ibid. Moreover, although he
states he only reviewed the contents of the recording once, when
instructed to proofread the transcript of the recording, Hernando
remains a witness with "first-hand knowledge of the contents of
the unlawful intercept." See id. at 226.
28
A-1860-13T4
C
It was the State's burden to "establish beyond a reasonable
doubt that it [could] conduct a prosecution with unsullied evidence
and witnesses." Sugar I, supra, 84 N.J. at 25. However, although
the record indicates Ackerson and Kret were both available at the
time of the hearing to be called by either the State or defendant,
neither testified at the hearing.
Hernando's testimony as to their knowledge and intent did not
constitute competent evidence. N.J.R.E. 602; Neno v. Clinton, 167
N.J. 573, 585 (2001) ("'A person who has no knowledge of a fact
except what another has told him [or her] does not, of course,
satisfy the present requirement of knowledge from observation.'")
(alteration in original) (quoting McCormick on Evidence § 10
(Strong ed., 5th ed. 1999))).
The only evidence as to Ackerson's and Kret's knowledge came
in the form of the report of the internal affairs investigation.
According to the report, each of them stated he was aware the
recording device was on when they were in the room with defendant
and Plaza and assumed it was turned off when they left the room
after counsel stated his client would not make a statement.
Pursuant to N.J.R.E. 803(b)(2), Ackerson's and Kret's
statements they knew the recording device was on are admissible
as admissions. However, their exculpatory assertions that they
29
A-1860-13T4
assumed the recording device was turned off when they left the
room constitute hearsay not admissible under any exception. See
State v. DeRoxtro, 327 N.J. Super. 212, 223-24 (App. Div. 2000)
(rejecting the argument that a self-serving "exculpatory portion
of a [hearsay] statement should [necessarily] be permitted to 'tag
along' with the inculpatory part, under the doctrine of continuing
trustworthiness or for reasons of completeness"); State v. Gomez,
246 N.J. Super. 209, 215-16 (App. Div. 1991).
The practice of surreptitiously recording meetings between
police officers and a defendant who appears with counsel may be
ill-advised, but it is not illegal. See N.J.S.A. 2A:156A-4(b)
("It shall not be unlawful under this act for . . . [a]ny
investigative or law enforcement officer to intercept a[n] . . .
oral communication, where such officer is a party to the
communication . . . ."); 18 U.S.C.A. § 2511(2)(c) ("It shall not
be unlawful . . . for a person acting under color of law to
intercept a[n] . . . oral . . . communication, where such person
is a party to the communication . . . ."); 18 U.S.C.A. § 2511(2)(d)
("It shall not be unlawful . . . for a person not acting under
color of law to intercept a[n] . . . oral . . . communication
where such person is a party to the communication . . . ."). The
critical question as to whether Ackerson and Kret were tainted by
the improper recording here cannot be resolved without competent
30
A-1860-13T4
evidence regarding their knowledge and actions after they left the
interrogation room, which would be subject to cross-examination.
Having failed to present such competent evidence, the State has
not carried its burden of establishing beyond a reasonable doubt
that these witnesses were free from taint.
D
Finally, we consider whether the appropriate remedy here
requires the dismissal of the indictment without prejudice. In
establishing the parameters for a fair presentation to the grand
jury, the Supreme Court stated the State must be prohibited from
"proceed[ing] before the grand jury with illegally obtained
evidence," including "evidence obtained in blatant violation of
the federal and State constitutions, and State law proscribing
illegal electronic surveillance." Sugar I supra, 84 N.J. at 25-26
(internal citations omitted).
As we have stated, although Hernando was the messenger, none
of the evidence delivered to the grand jury was illegally obtained
or tainted by the improper recording here. Moreover, the trial
court did not reject his testimony that he first became aware of
the contents of the intercepted conversation when he proofread the
transcript, well after he testified before the grand jury. To
require the State to present the evidence to the grand jury again
through a different witness would merely result in some
31
A-1860-13T4
inconvenience to the State without any appreciable benefit to
defendant. We are satisfied the suppression of evidence and
witnesses we require provides a remedy that is "tailored to the
injury suffered" without "unnecessarily infring[ing] on competing
interests," Morrison, supra, 449 U.S. at 364, 101 S. Ct. at 668,
66 L. Ed. 2d at 568, and places the State "in no better position
than it would have enjoyed had no illegality occurred." Smith,
supra, 212 N.J. at 395 (quoting Sugar II, supra, 100 N.J. at 239-
40). We therefore reverse the order dismissing the indictment
without prejudice.
In sum, we conclude Hernando, Ackerson and Kret must be
excluded from participating in the prosecution of defendant and
that the State is prohibited from using any information provided
in the recorded conversation at trial. We also conclude the grand
jury presentation was untainted by the improper recording of an
attorney-client communication and reverse the order dismissing the
indictment without prejudice.
Affirmed in part and reversed in part.
32
A-1860-13T4