State v. Gargano
| Docket Number | A-1230-22 |
| Decision Date | 28 August 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Appellant, v. DENNIS F. GARGANO, JR. and CLARENCE D. GRANT, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Approved for Publication August 28, 2023
Argued May 17, 2023
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Ocean County, Indictment No 17-02-0034.
William P. Cooper-Daub, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General attorney; William P. Cooper-Daub, of counsel and on the briefs).
Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for respondent Clarence D. Grant (Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs; Glenn D. Kassman, Designated Counsel, on the briefs).
Patricia Colligan, Designated Counsel, argued the cause for respondent Dennis F. Gargano, Jr. (Joseph E. Krakora, Public Defender, attorney; Patricia Colligan, on the briefs).
Before Judges Vernoia, Firko and Natali.
VERNOIA, J.A.D.
This appeal requires that we consider whether the trial court correctly determined the State's interception of privileged marital communications between codefendant spouses Clarence D. Grant and Nicole Villa-Grant during the execution of wiretap orders issued pursuant to the New Jersey Wiretapping and Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act), requires suppression of all other non-privileged communications intercepted following the first interception of a privileged marital communication. Based on the plain language of the Wiretap Act and the circumstances presented, we conclude the court correctly determined suppression of the non-privileged interceptions is mandated under N.J.S.A. 2A:156A-21, which broadly requires suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order and authorization.[1]
The facts pertinent to a disposition of the issues presented on appeal are not disputed. In 2015, the New Jersey State Police investigated a suspected Ocean County drug distribution operation. The State Police applied for wiretap orders authorizing interception of electronic communications on four phone facilities - cellular phones - one of which was subscribed to Grant's spouse, Villa-Grant, another of which was subscribed to codefendant James Gorman, and the remaining two of which were subscribed to other individuals who were suspected participants in the alleged drug distribution operation.
On February 27, 2015, the court granted the State Police's application and entered four separate wiretap orders, one for each of the four cellular phones. The orders identically required the interceptions "shall end as soon as practical and be conducted in a way as to minimize or eliminate the interception of communications other than the type described herein . . . ." The orders authorized wiretap interceptions of electronic communications over the phones for a period of twenty-days commencing at 4:00 p.m. on February 27, 2015.
On March 20, 2015, the State Police sought, and obtained, a thirty-day extension of the wiretap orders for three of the four cellular phones,[2] as well as a thirty-day wiretap order for an additional cellular phone subscribed to an individual not previously identified in the initial wiretap order application. The application submitted in support of the extension of the February 27, 2015 wiretap orders explained that wiretap interceptions from the phone subscribed to Villa-Grant revealed "Grant distributes cocaine, prescription pills, marijuana[,] and heroin, and directs subordinates to solicit both buyers of cocaine and to distribute cocaine and prescription pills[,]" and that "Grant's wife," Villa-Grant, and another individual, conspired with Grant to "thwart law enforcement" and "assist[] with narcotics transactions."
In its March 20, 2015 orders granting the State Police's application, the court authorized thirty-day extensions of the wiretap orders for three of the four phones covered by the February 27, 2015 order, including the phone subscribed to Villa-Grant, and an initial thirty-day order allowing wiretap interceptions on the fourth newly-added phone. The court entered separate orders for each phone. The orders included a requirement the wiretap interceptions "end as soon as practical and be conducted in a way as to minimize or eliminate the interception of communications other than the type described" in the order.
On February 27, 2015, within hours of the issuance of the initial wiretap orders, the State Police intercepted what it concedes was the first of what turned out to be 306 privileged marital communications between spouses Grant and Villa-Grant through April 16, 2015. Following the February 27, 2015 interception of the first privileged marital communication between Grant and Villa Grant, and through April 16, 2015, the State Police intercepted numerous other non-privileged communications among the alleged participants in the drug distribution network that, according to the State, are evidential of the various defendants' - including Grant's and Dennis F. Gargano, Jr.'s - commission of crimes for which they have been charged.
As a result of the evidence developed during the State Police investigation, a grand jury returned an indictment charging: Grant with first-degree leader of a drug distribution network, N.J.S.A. 2C:35-3; Grant and Gorman with first-degree conspiracy to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(1), -5(c), and N.J.S.A. 2C:2-6; Grant, Villa-Grant, Gorman, Gargano, and two others with second- degree conspiracy to distribute CDS, cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(1), -5(c), and N.J.S.A. 2C:5-2; Grant, Gargano, and two others with conspiracy to commit burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:20-3, and N.J.S.A. 2C:5-2; Villa-Grant with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and Grant, Gorman, and another individual with third-degree possession of CDS, cocaine, N.J.S.A. 2C:35-10(a)(1).
In a motion filed on behalf of Villa-Grant, and joined by Grant and Gargano, they sought suppression of all the wiretap interceptions following the February 27, 2015 initial interception of a privileged marital communication between Grant and Villa-Grant. They argued interception of the privileged marital communications was unlawful under the Wiretap Act, violated the minimization requirement attendant to all wiretap orders, and therefore required suppression under N.J.S.A. 2A:156A-21. As noted, the statute mandates suppression of "the entire contents of all intercepted, wire, electronic[,] and oral communications obtained during or after any interception which is determined to be in violation of" the Wiretap Act, as either "unlawfully intercepted" or intercepted in a manner "not in conformity with the order or authorization or in accordance with the requirements of" N.J.S.A. 2A:156-12.[3] N.J.S.A. 2A:156A-21.
The court denied the motion. In its written statement of reasons, the court explained that, at the time the marital communications were intercepted under the wiretap orders, N.J.R.E. 509 provided a privilege for such communications. The court, however, noted that effective November 9, 2015, following the initial interception of the marital communication between Grant and Villa-Grant, N.J.R.E. 509 was amended to include a crime-fraud exception to the marital communications privilege.[4] L. 2015, c. 138, § 2, eff. Nov. 9, 2015.
The court determined the crime-fraud exception in the amended N.J.R.E. 509 applied retroactively, and, for that reason, interceptions of marital communications on February 27, 2015, and thereafter, were not unlawful because the communications were made in furtherance of ongoing or future crimes. The court reasoned interception of the marital communication was therefore not unlawful under the Wiretap Act and did not require suppression under N.J.S.A. 2A:156A-21 of the non-privileged interceptions that followed it. The court later denied defendants' joint motion for reconsideration.
Three years later, Gargano filed a motion, which Grant joined, for reconsideration of the order denying the motion to suppress the non-privileged wiretap communications under N.J.S.A. 2A:156A-21.[5] They argued the Supreme Court's holding in State v. Bailey - that the 2015 amendment to N.J.R.E. 509 adding the crime-fraud exception was not retroactive, 251 N.J. 101, 127 (2022) - undermined the trial court's previous reliance on the exception as the basis for its determination that interception of the privileged marital communications between Grant and Villa-Grant did not violate the Wiretap Act. Gargano and Grant claimed the court erred by finding suppression of all the intercepted non-privileged communications following the first interception of a privileged marital communication between Grant and Villa-Grant was not required under N.J.S.A. 2A:156A-21.
The State conceded the Court's holding in Bailey warranted reconsideration of the order denying the suppression motion. The State agreed all 306 intercepted marital communications between Grant and Villa-Grant were privileged and inadmissible at trial because the communications had been intercepted prior to the amendment to N.J.R.E. 509 adding the crime-fraud exception. The State, however, argued interception of the communications was authorized by the wiretap orders and interception of the privileged communications are not per se unlawful under the Wiretap Act. See ...
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