State v. Cusmano

• Decision Date: 30 June 1994
• Citation: 274 N.J.Super. 496,644 A.2d 672
• Parties: STATE of New Jersey, Plaintiff-Appellant/Cross-Respondent, v. Robert CUSMANO, Richard Najar and Keith Pacciano, Defendants-Respondents, and Shannon Dick, Defendant-Respondent/Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 496

274 N.J.Super. 496

644 A.2d 672

STATE of New Jersey, Plaintiff-Appellant/Cross-Respondent, v. Robert CUSMANO, Richard Najar and Keith Pacciano Defendants-Respondents and Shannon Dick, Defendant-Respondent/Cross-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted May 10, 1994.

Decided June 30, 1994.

Nicholas L. Bissell, Jr., Somerset County Prosecutor, for plaintiff-appellant/cross-respondent (Patrick C. O'Hara, Jr., Asst. Prosecutor, of counsel and on the letter brief).

Robert Musto, Woodbridge, for defendant-respondent Robert Cusmano.

Brause & Brause, Metuchen, for defendant-respondent/cross-appellant Shannon Dick (Pamela Lynn Brause and Peter Ventrice, of counsel and on the letter brief).

Susan L. Reisner, Acting Public Defender, for defendant-respondent Richard Najar (Neill Q. Hamilton, Asst. Deputy Public Defender, of counsel and on the letter brief).

Frank J. Johnson, Somerville, for defendant-respondent Keith Pacciano.

Before Judges PRESSLER, BROCHIN and KLEINER.

The opinion of the court was delivered by

KLEINER, J.S.C. (temporarily assigned).

Defendants Robert J. Cusmano, Richard K. Najar and Keith M. Pacciano were indicted for second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third degree possession of a weapon, a pipe, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d, upon Carmen E. Parisio. This attack occurred March 7, 1993, as Parisio and his girlfriend Lana Jakubiw were exiting Parisio's vehicle in the parking area of an apartment building where Jakubiw rented an apartment with a roommate Maria Kapinos. At the time of the incident Parisio was also residing in that apartment. Kapinos is alleged to have observed the assault from an apartment window.

On June 9, 1993, Jakubiw and Kapinos informed Detective Nicholas Importico of the Somerset County Prosecutor's Office that they had received telephone calls from defendants attempting to persuade them not to testify at the impending trial. Importico obtained authorization for a consensual interception, N.J.S.A. 2A:156A-16, and a recording device was installed at the Jakubiw/Kapinos apartment. Ultimately, ninety minutes of taped conversation were recorded involving either Jakubiw or Kapinos and defendants Cusmano, Pacciano and Shannon Dick. Ms. Dick had been with defendant Pacciano, who was her boyfriend, on March 7, 1993.

As a result of these tape recordings, another indictment was returned by the Somerset County Grand Jury charging in: Count one, aggravated assault, N.J.S.A. 2C:12-1b(1), by defendants Cusmano, Najar and Pacciano and in Count two, conspiracy of those three defendants and Shannon Dick to induce Jakubiw or Kapinos to testify falsely or withhold testimony in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:28-5a; Counts three, four and five separately charged defendants Cusmano, Pacciano and Dick individually with substantive violations of N.J.S.A. 2C:28-5a.

On September 20, 1993, defendant Dick filed a motion to dismiss the indictment and a separate motion seeking a hearing as to the admissibility of the tape recordings. The motion to dismiss was denied on October 21, 1993 by the Presiding Judge of the Criminal Part.

An Evid. R. 8 hearing (now N.J.R.E. 104) was conducted by another judge on November 29 and 30, 1993 and December 1 1993. Prior to that hearing defendants Cusmano and Pacciano also filed formal motions to challenge the admissibility of the taped conversations. Defendant Najar was granted leave to participate in that evidentiary proceeding. ¹

At the conclusion of this hearing, the court rendered an oral opinion suppressing the taped recordings, and thereafter filed a written opinion on December 9, 1993 supplementing the oral decision. The proposed recorded evidence consists of three sides of taped conversations, marked and designated "tape one, side one," "tape one, side two," and "tape two, side one." Each side comprises thirty minutes. The motion judge considered the tapes as one unit and ruled the tapes inadmissible at trial on a dual basis: the operators of the recording equipment were not competent and the tapes as offered contain deletions. The court's conclusions are interrelated: the presence of the deletions were regarded by it as evidence of the incompetence of the operators of the recording equipment or, postulated differently, the incompetence of the operators caused the occurrence of the deletions. The court predicated its decision on State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962). As discussed infra, Driver does not define the operator's "competence." The motion judge declared "competence" should be construed as " 'competence to operate a sound recording device for use in a criminal prosecution.' " The judge did not further explain his definition. We conclude that an analysis of judicial precedent in the federal courts leads to the contrary conclusion that the tapes are admissible. We agree with the federal analysis and are constrained to reverse.

On December 17, 1993, the State sought leave to appeal the interlocutory decision of the motion judge and thereafter defendant Dick filed a cross-motion seeking leave to appeal the denial of her motion to dismiss the second indictment. Both motions for leave to appeal were granted and these separate appeals have been consolidated for disposition.

Since the motion judge premised his decision on State v. Driver, id., we will, in Part I, review New Jersey precedent commencing with Driver as background for our analysis, in Part II, of the proffered tape recorded conversations. In Part III, we will discuss federal precedent upon which we primarily rely in reaching our decision. Part IV will focus upon the separate appeal by defendant Dick.

I

In State v. Driver, supra, 38 N.J. at 287, 183 A.2d 655, the Supreme Court stated:

At the present time the great weight of authority throughout the country sanctions the use of sound recordings where the matter contained therein is competent and relevant. See Annotation, 58 A.L.R.2d 1024 (1958). We adopt that view. As a condition to admissibility, however, the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. Annotation, supra, at pp. 1027, 1032-36; as to confessions, see the many cases cited at pp. 1046-47.

In Driver, the court determined that a tape recording of a confession should have been excluded. The specific reasoning of the court was:

In the matter now before us, therefore, the tape recording was not inadmissible per se, so long as its capacity to record accurately, and the other conditions precedent were established. But even if the involuntary character of the recording did not bar it, in our view it should have been excluded. It was garbled, full of static and other foreign sounds; it was unintelligible and inaudible for the most part, and a fair exercise of discretion required the entire tape to be withheld from the jury. In this connection, we note the comment of the trial judge as he listened to it: "If you can't hear it, you can't hear it. Inaudible." He did not specify further. Basic fairness demanded its exclusion.

[Id. at 288, 183 A.2d 655 (citations omitted).]

Since 1962, the Annotation, 58 A.L.R.2d 1024, relied upon by the Court in Driver has been supplemented. See 57 A.L.R.3d 746 (1974). Our review of the cited decisions throughout the United States in both State and federal courts reflect that the broad conclusion pronounced in State v. Driver, supra, is still correct.

Although State v. Driver, id., is often cited for various precedential value, our research reveals only five New Jersey decisions which specifically rely upon State v. Driver in examining the admissibility of particular recordings: State v. Seefeldt, 51 N.J. 472, 487, 242 A.2d 322 (1968); State v. Seaman, 114 N.J.Super. 19, 28, 274 A.2d 810 (App.Div.), certif. denied, 58 N.J. 594, 279 A.2d 679 (1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 674, 30 L.Ed.2d 662 (1972); Sarte v. Pidoto, 129 N.J.Super. 405, 324 A.2d 48 (App.Div.1974); State v. Zicarelli, 122 N.J.Super. 225, 239-40, 300 A.2d 154 (App.Div.), certif. denied, 63 N.J. 252, 306 A.2d 455, cert. denied, 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed.2d 120 (1973); State v. Gora, 148 N.J.Super. 582, 593, 372 A.2d 1335 (App.Div.), certif. denied, 74 N.J. 275, 377 A.2d 679 (1977).

Relevant to our discussion, although not citing Driver, is State v. Dye, 60 N.J. 518, 291 A.2d 825, cert. denied, 409 U.S. 1090, 93 S.Ct. 699, 34 L.Ed.2d 675 (1972), modified on other grounds by State v. Catania, 85 N.J. 418, 427 A.2d 537 (1981), involving in part the admissibility of conversations recorded over tapped telephones pursuant to N.J.S.A. 2A:156A-1 et seq., the New Jersey Wiretapping and Electronic Surveillance Act.

Of the five cases specifically relying on Driver, only State v. Zicarelli, supra, is particularly relevant to our analysis sub judice. The Zicarelli court noted:

It is true that in State v. Driver it was suggested that the tape there involved was so inaudible and garbled that, as a matter of discretion, it should have been excluded.

In reviewing the exercise of discretion here we consider the evidential purpose which the tape served. It has been held that if a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible. State v. Spica, 389 S.W.2d 35, 48 (Mo.Sup.Ct.1965), cert. den. 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); United States v. Hall, [342 F.2d 849 (4 Cir.1965) ] supra; Addison v. United States, 317 F.2d 808, 815 (5 Cir.1963), cert. den. 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605 (1964).

Certainly, the tape of the...