On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Graves, and Alvarez.
Defendant, Wilfredo Suarez, appeals a jury verdict finding him guilty of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, for which crime he was sentenced to five years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The jury acquitted him of the remaining counts of the indictment, including four counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). We affirm the judgment of conviction.
All the charges arose from a robbery at a McDonald's orchestrated by defendant, his former girlfriend, Jennifer Brana, and Daniel Alfaro. Brana and Alfaro, who had previously worked together at the restaurant, were co-defendants also named in the indictment. Brana and Alfaro testified at trial, as did three of the McDonald's employees named as robbery victims in the indictment. Brana said that defendant conceived the idea of the robbery; Alfaro claimed that Brana and defendant developed it together. It is undisputed, however, that Brana convinced Alfaro to participate in the robbery. On January 8, 2005, as prearranged, she called Alfaro at approximately 5:30 a.m. to alert him to the fact that it was the appointed day. When Alfaro arrived for work approximately fifteen minutes later, he saw defendant sitting on the curb, wearing a mask and a hooded sweatshirt. Alfaro called the manager to let him in through the locked back door. When the manager opened the door, defendant ran inside. While holding the employees at gunpoint, he removed $600 from the safe. He took everyone's cell phones except for Alfaro's, and struck Alfaro a few times in order to make him appear innocent of any involvement. While defendant and Brana were at a laundromat that afternoon, he told her about the robbery, including the fact that he was armed and took money from the safe. Alfaro eventually admitted his involvement in the crime, as did Brana.
At trial, Alfaro and Brana acknowledged receiving favorable pleas in exchange for their testimony. Both pled guilty to third-degree conspiracy to commit robbery. Brana was admitted into PTI while Alfaro was sentenced to probation.
Immediately prior to the start of the trial, defense counsel moved to strike Brana's testimony entirely, or in the alternative, to conduct a taint hearing in accord with State v. Sugar (Sugar I), 84 N.J. 1, 25 (1980). Defense counsel made the application because the State sent Brana, after defendant had been indicted and had been assigned counsel, to meet with him on two different occasions at the county jail while wearing a wire. The wire malfunctioned completely during the first meeting and nothing whatsoever was recorded. At the second meeting, only Brana's voice was generally audible. Since the encounters garnered no useful recording, the State contended no taint hearing was necessary and agreed to simply limit Brana's testimony solely to the facts and circumstances leading up to and immediately subsequent to the robbery.
On appeal, defendant raises the following points:
THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL WERE FLAGRANTLY VIOLATED BY THE STATE'S TAPING OF CONVERSATIONS BETWEEN THE INDICTED, REPRESENTED DEFENDANT AND HIS CO-DEFENDANT GIRLFRIEND NECESSITATING DISMISSAL OR RETRIAL. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. 1, par. 10.
THE STATE COMMITTED PREJUDICIAL MISCONDUCT BY CONTINUALLY IMPLYING THAT THE PROSECUTOR WAS ARGUING FROM PERSONAL KNOWLEDGE. U.S. Const., Amend. XIV; N.J. Const. (1947), Art. I, par. 10. (Not raised below)
As contended by defendant, there can be no doubt that the use of a wire was prosecutorial misconduct which violated defendant's Sixth Amendment right to counsel. U.S. Const. amend. VI. Equally clearly, however, Brana's testimony was admissible because it was derived from an indisputably independent source, namely, her role as ...