State v. Martinez, DOCKET NO. A-3479-18T4

• Decision Date: 29 October 2019
• Docket Number: DOCKET NO. A-3479-18T4
• Citation: 461 N.J.Super. 249,220 A.3d 498
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gregory A. MARTINEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

461 N.J.Super. 249

220 A.3d 498

STATE of New Jersey, Plaintiff-Respondent,

v.Gregory A. MARTINEZ, Defendant-Appellant.

DOCKET NO. A-3479-18T4

Superior Court of New Jersey, Appellate Division.

Argued October 2, 2019

Decided October 29, 2019

Jeffrey S. Farmer argued the cause for appellant (Mazraani & Liguori LLP, attorneys; Jeffrey S. Farmer and Joseph M. Mazraani, North Brunswick, on the briefs).

Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher L.C. Kuberiet, North Brunswick, Acting Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and on the briefs).

Valeria Dominguez, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Valeria Dominguez, of counsel and on the briefs).

Joseph J. Russo, Deputy Public Defender, argued the cause for amicus curiae State of New Jersey Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Joseph J. Russo, of counsel and on the briefs).

John J. O'Reilly, Morristown, argued the cause for amicus curiae Association of Criminal Defense Lawyers (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; John J. O'Reilly, of counsel and on the briefs; Courtney A. Johnson, Morristown, on the brief).

Before Judges Sabatino, Sumners and Natali.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This novel case concerns a prosecutor's office's use of body wires on a paid informant, an anticipated trial witness for the State in a narcotics case, to secretly monitor and record a criminal defense attorney's pre-trial interview of that informant.

An assistant prosecutor authorized the surreptitious taping based upon information – which turned out to be untrue – that the attorney might offer the witness a bribe. When the prosecutor's office supplied the recording and a transcript of it to the attorney in discovery three days before his client's trial, he moved to dismiss the indictment, or, alternatively, to bar the witness's testimony for the State.

In its oral ruling, the trial court remarked that the secret recording in this case "should send a chill down the spine of any criminal defense attorney or prosecutor [who] has ever interviewed a witness." The court found the prosecutor's office lacked reasonable suspicion that "evidence of criminal conduct would be derived from [the] interception." Nonetheless, the court concluded the defense's trial strategy had not been sufficiently divulged during the taped interview "to the extent that would justify" the dismissal of indictment or preclusion of the witness's testimony. The court adopted a more limited remedy, barring the State from using the taped interview as evidence at trial. Defendant moved for leave to appeal, which we granted.

For the reasons that follow, we affirm the trial court's decision in part, modify it in part, and remand it in part. As conceded by defendant and related amici, the informant's secret taping of the interview with his one-party consent did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act ("the Wiretap Act"), N.J.S.A. 2A:156A-1 to -34. However, we hold that mere compliance with the Wiretap Act does not mean that the secret taping is permissible, particularly in the manner in which it was conducted in this case. Specifically, without appropriate limitations, such recording can have the capacity to infringe upon a criminal defendant's constitutional right to fair and unimpeded access by his counsel to interview government witnesses, and the capacity to reveal attorney work product. The surveillance of attorney interviews also can implicate ethical norms, particularly those governing prosecutors.

Based on the record developed thus far, we conclude the prosecutor's office erred in allowing detectives in the State's narcotics case and the attorney misconduct case to work jointly in the efforts to record the witness interview. The prosecutor's office further erred in allowing the assistant prosecutor who was handling the narcotics case to have access to the fruits of the surreptitious taping.

Under the circumstances presented, the prosecutor's office instead was obligated to create two screened "taint teams" to proceed independently in: (1) the attorney conduct investigation and (2) the narcotics case. Because of that failure, and because attorney work product from the recorded interview was prejudicially divulged to the narcotics prosecutor and staff, the narcotics case must be transferred for handling by either the Attorney General or by another designated county prosecutor's office.

Further, we remand the case for the trial court to conduct a plenary hearing to determine the extent to which the informant-witness may have been unfairly coached or influenced by the manner in which he was prepared by the State for the taped interview and the manner in which he was debriefed afterwards.

Depending upon the results of that plenary hearing, a possible appropriate prophylactic remedy may be to disallow the informant-witness from testifying for the State at the narcotics trial. On remand, the trial court also shall determine if other prosecutorial witnesses were tainted because of their involvement in or exposure to the recording or its transcript.

Lastly, we recommend that the Attorney General consider promulgating statewide guidelines and procedures addressing any future surreptitious prosecutorial taping of witness interviews by defense counsel.

TABLE OF CONTENTS

I. Factual and Procedural Background...503The Indictment and the Alleged Cocaine Sales...503Defense Counsel's Interview of Cruz...503

The State Turns Over the Interview Recording and Transcript on the Eve of Trial...504

Defendant's Motions...504

The Present Interlocutory Appeal...504

More Details Concerning the Recorded Interview...504

Cruz Meets with Detectives on March 11 and Consents to the Wire...505

The Recorded March 12, 2019 Defense Interview...506

Charges Lodged Against Policastro...506

The April 11 Motion Hearing...507

The Motion Judge's Ruling...507

Proceedings Before the Presiding Criminal Judge...508

II. The Wiretap Act...508

Requirements of the Wiretap Act...508

The 1999 Amendment Eliminating the Reasonable Suspicion Standard...509 The "Indispensable Protection" of Supervisory Review...509

Special Considerations in Authorizing Intercepts of Attorneys...510

Judicial Reviewability of Wiretap Authorizations...511 Comparative Discussion of the Federal Wiretap Act and the Justice Manual...512

The "Relevance" Standard...513

III. Infringement Upon Defendant's Constitutional Rights and Work Product Disclosure...514Constitutional Provisions and Principles...514

State v. Blazas...515

Gregory v. United States...516

Other Cases...516

The State's Pre-Wire Preparation of Cruz...517

The Attorney Work Product Privilege...518

At Least Some Work Product Was Revealed Here...521

IV. Ethical Rules Addressing Clandestine Recording By Attorneys and the Special Duties of Prosecutors...522ABA Opinion 337...522

ABA Formal Opinion 01-422...522

The New Jersey RPCs...523

Special Ethical Restrictions Imposed on Prosecutors...523

The Need for "Fire-walls" or "Taint Teams"...524

Summary...525

V. Implications and Remedies...525

VI. Conclusion...529

I.

(Factual and Procedural Background)

The Indictment and the Alleged Cocaine Sales

In July 2016, a Middlesex County grand jury returned Indictment No. 17-05-0586, charging defendant Gregory A. Martinez with:

• three counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts 1, 5, and 8);

• three counts of second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (counts 2, 6, and 9);

• two counts of third-degree distribution of a controlled dangerous substance near or on school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7(a) (counts 3 and 7); and

• one count of second-degree distribution of a controlled dangerous substance within 500 feet of certain public property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1(a) (count 4).

The charges resulted from three instances between March 22 and July 8, 2016, during which defendant allegedly sold cocaine to Delvi Cruz. Cruz was then cooperating with the county prosecutor's office as a confidential informant ("CI"), pursuant to a plea agreement.¹

Defense Counsel's Interview of Cruz

After learning the identity of the CI, defense counsel for Martinez, Joseph M. Mazraani, requested, through Cruz's counsel Michael A. Policastro, to conduct a pretrial interview with Cruz.

On March 12, 2019, Mazraani and his investigator Dave Gamble met with Cruz in Policastro's office (the "Mazraani interview").²

Policastro, who apparently was in court on another matter that day, was not present for the Mazraani interview. Nor was anyone there in person from the prosecutor's office.

Unbeknownst to the defense or to Policastro, Cruz wore two listening devices at the interview: one on his waist and another in his pocket. Cruz wore the devices at the request of detectives from the prosecutor's office, whose personnel recorded the Mazraani interview as it occurred.

The State Turns Over the Interview Recording and Transcript on the Eve of Trial

Just three days before the scheduled trial date the State turned over certain discovery to the defense, including a recording and the rough transcript of the Mazraani interview, as captured on the device Cruz had worn at his waist.

Defendant's Motions

After receiving the recording and rough transcript, defendant immediately moved to dismiss the indictment or, in the alternative, to bar Cruz's testimony.

On April 11, 2019, the trial court denied the motion to dismiss and the defense's application for a stay of the trial. However, the court held that: (1) the State could not use the Mazraani interview recording at trial, (2) the defense could use the recording, if it desired, to impeach...