On appeal from Superior Court, Law Division, Cumberland County.
Furman, Petrella and Ashbey. The opinion of the court was delivered by Petrella, J.A.D.
This is an appeal by defendant Michael Tirelli from his conviction by a jury of the offenses of misconduct in office and unlawful interception of an oral communication. Defendant raises the following issues on appeal:
1) Both the charge to the jury and the limitations placed upon defense counsel with respect to the offense of misconduct in office were reversible error in that they prevented the jury from considering an essential element of that offense.
2) The court failed to properly charge the jury with respect to an essential element of the crime of unlawfully intercepting an oral communication.
3) The defendant is entitled to an acquittal with respect to count two as a matter of law since his conduct was clearly outside that which is proscribed by N.J.S.A. 2A:156A-3(a) (unlawful interception of an oral communication).
4) The admission of certain parts of Alfred Luciani's testimony was plain error.
This appeal constitutes another chapter in the investigation of Dr. Harry Sugar for the murder of his wife, Joan Sugar. See State v. Sugar, 84 N.J. 1 (1980) and State v. Sugar, 100 N.J. 214 (1985). On July 11, 1979 Dr. Sugar reported his wife missing to the Vineland Police Department. Defendant, who was chief of detectives, assigned the investigation to Detective John Mazzeo. On July 31, 1979 defendant and Mazzeo, along with other members of the Vineland police force, conducted a consensual search of the Sugar residence. On August 6, 1979 defendant and Mazzeo returned to the Sugar residence with the aid of a psychic, defendant's cousin. They moved a picnic table away from the ground on which it was sitting, and defendant told Mazzeo to get a shovel from the car and to start digging. Mazzeo dug into the soil and noticed some flies going into the hole which he had been digging. Mazzeo also smelled a foul
odor coming from the ground. After he dug a few more feet he discovered what turned out to be a human leg.
Sugar, who was returning from California that evening, was arrested at his home in Vineland by defendant and Detectives Mazzeo, Walters and Adams and Chief Joseph Soracco of the Cumberland County Prosecutor's Office and advised of his rights. At the station Sugar was interrogated by defendant, Walters and Mazzeo. Defendant testified that Dr. Sugar was cool and sat very calmly, and that this upset defendant who started hollering at Sugar. At this point Soracco and Adams took over the questioning. Approximately 1/2 hour later defendant came back in to interrogate Sugar.
Sugar contacted the law firm of Greenblatt & Greenblatt. Some time after 2 a.m. Rocco Tedesco, an associate with the firm, was telephoned and asked to go to the Vineland Police Station to see Sugar. Tedesco told defendant that he wished to meet with Sugar privately and defendant asked one of the other officers to take Tedesco to an interrogation or conference room. In that room was a concealed microphone which was part of an electronic communications system hooked up so that defendant, in his office, could hear the conversation taking place there. Defendant testified that at this time he and Soracco listened to Tedesco and Sugar converse. According to defendant's testimony, Soracco had turned on the machine. Soracco, however, claimed that he was not in defendant's office and did not hear any of that conversation. Defendant had a tape recorder on the side of his desk and turned it on to record the conversation. Tedesco testified that his meeting with Sugar lasted for only a couple of minutes. After that meeting he went into the squad room and had a cup of coffee with a number of the detectives who were present. He informed defendant that Sugar would not give a statement and then left the police station, as did defendant.
Tedesco returned to the police station at about eight o'clock the next morning because he had been informed by defendant
that the police wished to take Sugar on a search of his home. Tedesco wanted to be present and to find out whether his client had been charged with any crimes because Sugar was being held in custody. Jay Greenblatt, a lawyer from the firm with which Tedesco was associated, arrived at about 9 a.m. The lawyers asked defendant if they could meet in private with Sugar. Tedesco, Greenblatt and Sugar met in the same room in which Tedesco and Sugar had met in the early morning hours of that same day. At this time, defendant was in his office with Soracco, discussing whether they believed that Sugar committed the murder. Defendant testified that Soracco reached over and turned on the button on the console. Soracco testified that he walked in after defendant had turned on the console in order to listen to Sugar and his attorneys. Mazzeo entered defendant's office to ask what charges should be filed against Sugar and defendant asked Mazzeo to get a pad and take notes on what was being overheard. At that ...