On appeal from the Superior Court, Law Division, Ocean County.
Michels and Baime. The opinion of the court was delivered by Baime, J.A.D.
Following a jury trial, defendant was convicted of conspiracy to violate the Controlled Dangerous Substances Act. The trial court imposed a custodial term of three years and ordered defendant to pay a penalty of $25 to the Violent Crimes Compensation Board. On appeal, defendant contends that his inculpatory statement given to the Ocean County Prosecutor pursuant to a plea agreement which was subsequently abrogated was improperly admitted into evidence. Defendant argues that such a statement is per se involuntary and, therefore, must be suppressed. Defendant also contends that he was denied the effective assistance of counsel under the Sixth and Fourteenth Amendment. Our thorough review of the record convinces us that defendant's claim is wholly devoid of merit. Nevertheless, we are constrained to reverse defendant's conviction and remand for a new trial because of material deficiencies in the court's instructions to the jury.*fn1
The facts essential to resolution of the issues presented here are not seriously disputed. In July, 1980, the Ocean County Prosecutor obtained a court authorized wiretap for defendant's home in Toms River. The affidavit submitted in support of the electronic surveillance application described a controlled purchase
of narcotics from defendant by a police informant. The drug transaction was successfully completed through the use of defendant's telephone. The wiretap authorization permitted the authorities to eavesdrop upon "anyone or any conversation in connection with offenses of controlled dangerous substances." During the surveillance period, numerous conversations pertaining to illicit drug transactions were recorded. Among those implicated were defendant and several members of his family. As a result of the information obtained through the use of the wiretap, defendant was arrested on November 10, 1980 pursuant to a warrant.
On November 13, 1980, defendant's retained attorney, Henry Collins, was contacted by the Ocean County Prosecutor. Based upon their conversation, Mr. Collins agreed to meet the prosecutor at his office. Present at the meeting were the prosecutor, two investigators, defendant and Mr. Collins. After reviewing several of the tape recorded telephone conversations implicating defendant and members of his family, the parties discussed the possibility of a plea agreement.
Under the initial proposal, the prosecutor agreed to recommend imposition of an indeterminate custodial term. He also promised not to pursue charges against other members of defendant's family. In return, defendant was to identify the voices on the tape. There is some dispute with respect to whether defendant agreed to testify against other members of the conspiracy. Defendant's attorney and the prosecutor's investigator testified that defendant was advised of the possibility that he would be required to testify against his confederates. Defendant vehemently denied that this constituted part of the plea agreement. In any event, defendant and his attorney were permitted to discuss the proposal in private. This engendered further negotiations pertaining to the possibility of reducing bail. After these issues had been resolved, defendant agreed to listen to the tape and cooperate in identifying other members of the conspiracy. Over the next three days, defendant,
in the presence of his attorney,*fn2 gave a detailed statement which was stenographically recorded. Subsequently, defendant refused to testify against others and entered a plea of not guilty.
Prior to trial, defendant sought to suppress his written statement. Specifically, defendant contended that he did not voluntarily waive his Fifth Amendment privilege and that his statement was obtained by way of coercion and intimidation. Significantly, defendant did not raise the argument presently advanced on appeal, i.e., that any statement made pursuant to a plea agreement which is subsequently abrogated must be suppressed. In any event, the trial judge found that defendant knowingly and intelligently waived his constitutional rights in the presence of his attorney. The court also concluded that the methods employed by the prosecutor and his investigators were not coercive and did not have the effect of overbearing defendant's will.
At trial, the State's evidence consisted primarily of the tape recorded telephone conversations interspersed with the investigator's testimony and defendant's statement. The record reflects that most of the telephone conversations were extremely guarded. Apparently, code language was often employed. In addition, many of the terms utilized in negotiating drug transactions were not of common parlance. Thus, defendant's statement was used to describe what was being discussed in the recorded telephone conversations.
Simply stated, it is abundantly clear that defendant's statement constituted a critical part of the State's case. The sole defense advanced at trial was that defendant's statement was coerced and involuntary. Nevertheless, the trial judge refused to ...