State of New Jersey v. Christopher Mazzarisi

NOT FOR PUBLICATION WITHOUT THE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.

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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

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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.
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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

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 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)).
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 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.

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 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.
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 [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).]

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 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

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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

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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

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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."

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 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

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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.
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 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.
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 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.

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 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,

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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.

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____, 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

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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

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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

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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
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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
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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
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 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
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 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.

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