State v. Fuqua

• Decision Date: 20 August 2021
• Docket Number: A-3979-17,A-4584-17,A-3149-17,A-0137-18
• Citation: State v. Fuqua, A-0137-18, A-3149-17, A-3979-17 (N.J. Super. App. Div. Aug 20, 2021)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYQUAN FUQUA, a/k/a TYOUAN FUQUA, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEREK FUQUA, a/k/a DISHAWN FUQUA, DEREK D. FUQUA, JAMES FUQUA, DERRICK FUQUA, JOHNNIE BROWN, JAHARIE CROWN, and DEREK FOQUA, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHANELL VIRGIL, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. TREVIS THOMAS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYQUAN FUQUA, a/k/a TYOUAN FUQUA, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEREK FUQUA, a/k/a DISHAWN FUQUA, DEREK D. FUQUA, JAMES FUQUA, DERRICK FUQUA, JOHNNIE BROWN, JAHARIE CROWN, and DEREK FOQUA, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHANELL VIRGIL, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TREVIS THOMAS, Defendant-Appellant.

Nos. A-3149-17, A-3979-17, A-4584-17, A-0137-18

Superior Court of New Jersey, Appellate Division

August 20, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted May 24, 2021

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 14-04-0026.

Joseph E. Krakora, Public Defender, attorney for appellant Tyquan Fuqua in A-3149-17 (Frank M. Gennaro, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Derek Fuqua in A-3979-17 (Richard Sparaco, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Chanell Virgil in A-4584-17 (David A. Gies, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant Trevis Thomas in A-0137-18 (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent in A-3149-17 and A-3979-17 (Adam D. Klein, Deputy Attorney General, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent in A-4584-17 (Steven Cuttonaro, Deputy Attorney General, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent in A-0137-18 (William P. Cooper-Daub, Deputy Attorney General of counsel and on the brief).

Appellant Derek Fuqua filed pro se supplemental briefs.

Before Judges Rothstadt and Susswein.

PER CURIAM

Defendants Derek Fuqua, Tyquan Fuqua, Trevis Thomas, and Chanell Virgil appeal from their guilty plea convictions arising from their participation in a drug trafficking operation led by Derek Fuqua. The State Police investigation began in 2012 and employed extensive electronic surveillance authorized pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -37. The wiretap portion of the investigation ran over the course of sixty-five days in February through April 2013 during which time nearly 20, 000 telephone calls and text messages were intercepted. In all, twenty-two co-defendants were charged in the resulting State Grand Jury indictment.

Defendants contend the State violated the Wiretap Act by intercepting a call that was made to an attorney's office and by failing to adequately "minimize" a number of non-relevant calls, primarily personal conversations during which criminal activity was not discussed. Because defendants Derek Fuqua, Tyquan Fuqua, Thomas, ^[1] and Virgil all raise the same contentions relating to the minimization requirements of the Wiretap Act, we calendared their appeals back-to-back and now consolidate them for the purpose of issuing a single opinion.

We affirm the trial court's ruling that the State did not violate the Wiretap Act by intercepting Derek Fuqua's call to an attorney's office. The record amply supports the trial court's finding that Fuqua's intercepted conversation was with a secretary or receptionist-rather than an attorney- and that the call related solely to scheduling matters with no discussion of legal advice or disclosure of any confidential information. Accordingly, that interception violated neither the attorney-client privilege nor the Wiretap Act provision designed to safeguard privileged communications.

Defendants also argued to the trial court that non-relevant telephone calls were improperly monitored, requiring the suppression of all information and evidence derived from the entire electronic surveillance investigation. The trial court convened a hearing spanning seven nonconsecutive days, during which it listened to the disputed telephone calls, took testimony from State Police witnesses, and heard arguments of counsel. The trial court rendered a twenty-two-page written decision in which it ruled that although "better efforts could have been utilized in the monitoring" of a "hand full of calls," the State Police monitors did not violate the Wiretap Act.

After carefully reviewing the record in light of the arguments of the parties and applicable principles of law, we affirm the trial court's ruling with respect to the specific calls analyzed in the court's well-reasoned written decision. However, for reasons that are not made clear in the record, the court did not analyze and rule on five calls challenged by defendants that were played and discussed at the suppression hearing. We therefore are constrained to remand the matter for the trial court to make findings of fact and conclusions of law with respect to those five disputed phone calls that are not specifically addressed in its May 17, 2016 written decision.

Furthermore, with respect to call #1, 117 made on March 18, 2013, the court's ruling that the monitoring of the call was not unreasonable appears to have been contingent upon the State providing additional information that the parties to that call had previously discussed criminal activity. The record before us does not indicate whether the State complied with the trial court's instruction to supply that additional information. We therefore remand for the trial court to make definitive findings with respect to this particular call.

In addition to the minimization contentions, defendants argue the State failed to comply with the statutory requirement to immediately seal the wiretap recordings. The wiretap authorization expired on April 3, 2013. On that date, the State asked the Assignment Judge to seal the recordings. The judge directed the State to return several days later. The State complied with that instruction and the judge sealed the recordings on April 9, 2013. We affirm the trial court's ruling that the State provided a satisfactory explanation for the six-day delay and thus did not violate the Wiretap Act.

In addition to the wiretap-related contentions, defendant Thomas appeals from the denial of his motion to suppress illicit drugs found in a warrant search of a vehicle in which he was a passenger. Thomas first argued to the trial court that the vehicle was unlawfully stopped. After the trial court took testimony at the suppression hearing, the defense submitted a supplemental brief arguing that the probable cause set forth in the search warrant application was tainted because the drug detection canine unlawfully entered the vehicle.

The trial court addressed the canine sniff contention and found the dog entered the vehicle unlawfully. The court nonetheless ruled there was adequate probable cause to support the ensuing search warrant application based on information obtained from independent sources. Because the dog sniff issue was not raised until after the police witnesses had testified at the suppression hearing, we conclude the State was deprived an opportunity to present testimony concerning the circumstances in which the dog examined the vehicle. Importantly, the State had no reason to clarify on the record whether the dog alerted to the presence of controlled dangerous substances (CDS) after first examining the exterior of the vehicle. Accordingly, we deem it necessary to remand the matter for a new hearing to establish the exact circumstances and timing of the dog scent examination.

With respect to the trial court's conclusion that the search warrant can be sustained based on information from sources independent of the canine sniff, the State acknowledges the court did not consider and make findings with respect to two of the three elements that must be established by clear and convincing evidence to invoke the independent source exception to the exclusionary rule under State v. Holland, 176 N.J. 344 (2002). We therefore remand the matter for the court to make findings of fact and conclusions of law with respect to all three prongs of the independent source doctrine.

Defendant Virgil appeals from the denial of her motion to withdraw her guilty plea on the grounds she received a sentence of community service that was not explicitly contemplated in her plea agreement. We affirm the denial of her motion to withdraw her guilty plea for the reasons explained in the trial court's oral opinion. Virgil also appeals from the denial of her motion for a mistrial based on prosecutorial misconduct during the trial, which was interrupted when defendant and her trial co-defendants pled guilty. Virgil did not preserve the right to challenge the denial of her mistrial motion and we therefore decline to consider that contention on appeal.

I. We briefly summarize the relevant circumstances surrounding each appeal:

Derek Fuqua

Derek Fuqua was the alleged leader of the drug trafficking operation. He was charged in the State Grand Jury indictment with: first-degree racketeering, N.J.S.A. 2C:41-2(c) and (d); second-degree conspiracy to distribute or possess with intent to distribute CDS, N.J.S.A. 2C:5-2; first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; first-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), (b)(1), and (c) first-degree possession with intent to distribute CDS (heroin), N.J.S.A. 2C:35-5(a)(1), (b)(1), (c), and N.J.S.A. 2C:2-6;...