November 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER RIVA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA 004-10-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2008
Before Judges Cuff, Fisher and Baxter.
Because defendant's death between his municipal conviction and his appeal to the Law Division did not in this case warrant a dismissal of the appeal or an abatement of the prosecution, we reach the merits of defendant's appeal and reverse because evidence acquired during what the State claims was a field inquiry, but which was, in reality, an unlawful investigatory stop, should have been suppressed.
On February 18, 2006, defendant, who was a probation officer then on suspension, was charged with possession of drug paraphernalia, namely a glass crack pipe, with the intent to use same, N.J.S.A. 2C:36-2.
Prior to trial, defendant moved for the suppression of the crack pipe, which was obtained by Officer Mitchell when he encountered defendant and Lisa Rose in defendant's parked vehicle in a CVS parking lot on the date in question.
The municipal judge first heard the testimony of Officer Mitchell, who stated that, upon seeing defendant's vehicle parked approximately 100 to 150 feet away from all other vehicles in the lot, he decided to find out what the occupants were doing. He drove his marked police vehicle to the area and parked partially behind defendant's vehicle, stepped out, and approached defendant's vehicle.*fn1
In approaching, Officer Mitchell saw on the pavement a small blue ziplock baggie, which appeared to have some drug residue within, and a nearby cotton Q-tip. Believing the baggie to have once contained a controlled dangerous substance (CDS), and knowing that Q-tips are commonly used to clean CDS pipes, the officer picked up the baggie and Q-tip.
Officer Mitchell testified that, as he continued to approach, Rose appeared "startled and nervous" and she "reached down towards" the floor area; at the same time, defendant placed his right hand in his right front coat pocket. The officer ordered both to place their hands on the dashboard. Defendant responded that he was "on the job," and asked for "a break." Defendant reached into his pocket again, saying to Officer Mitchell, "I'll give it to you," and removed a glass pipe, which Officer Mitchell recognized as the type used to smoke crack cocaine. Defendant asserted that the pipe belonged to Rose and explained he was attempting to help Rose with her drug problem.
With both occupants outside the vehicle, Rose reached into her right pocket, which caused Officer Mitchell to grab her and push her against the vehicle. When Rose removed her hand from her pocket, she held two baggies containing white rock, which Officer Mitchell believed was CDS. Defendant and Rose were arrested.
Based upon his finding that the officer was engaged in a field inquiry and that his discovery of the baggie and Q-tip thereafter provided a reasonable articulable suspicion to warrant an investigatory stop, the municipal judge found there was no cause to suppress the other evidence obtained.
After denying defendant's suppression motion, the judge presided over a trial at which Officer Mitchell testified about his encounter with defendant and the evidence he had obtained. A lab report, which concluded that residue on the pipe was crack cocaine, was received in evidence. Defendant testified that the crack pipe belonged to Rose and that he was with her because he was attempting to help her with her addiction. At the trial's conclusion, the municipal judge found defendant guilty of possessing the crack pipe with the intent to use it, N.J.S.A. 2C:36-2. The judge also conducted a hearing that led him to conclude that the conviction touched upon defendant's employment as a probation officer and required forfeiture of his office, N.J.S.A. 2C:51-2(a)(2); in that regard, the judge found that defendant was in the company of a probationer, Lisa Rose, whom he had previously met when acting as a probation officer,*fn2 when he engaged in the offending conduct. The municipal judge imposed a $250 fine, together with court costs and other required penalties and fees; with the exception of the job forfeiture, the municipal judge stayed the sentence pending defendant's appeal to the Law Division.
On April 9, 2007, defendant filed a timely appeal to the Law Division. On July 16, 2007, defendant died. The State's brief asserts without reference to the record that defendant was killed during a gun battle with a Totowa police officer.
The municipal appeal was heard by the Law Division judge on September 14, 2007. Defense counsel argued that defendant's death required the abatement of the prosecution and the vacation of the municipal conviction. Before deciding this issue, the judge heard the balance of counsel's arguments on the merits of the appeal and reserved decision. The judge later issued a written decision in which he found defendant's death did not require a termination of the proceedings or the vacation of the judgment; he also found, in his de novo review of the municipal court proceedings, that there was no merit in defendant's argument that the evidence should have been suppressed and found defendant guilty as charged. The Law Division judge imposed the same fines and penalties, and also concluded, as had the municipal judge, that the forfeiture of defendant's employment as a probation officer was justified pursuant to N.J.S.A. 2C:51-2(a)(2).
Defendant*fn3 appealed, raising the following arguments for our consideration:
I. MR. RIVA'S CONVICTION SHOULD BE VACATED AND THE PROSECUTION SHOULD BE ABATED BECAUSE MR. RIVA DIED WITH A PENDING APPEAL AS OF RIGHT.
II. ALL EVIDENCE OBTAINED SUBSEQUENT TO OFFICER MITCHELL'S PARKING HIS MARKED POLICE VEHICLE BEHIND MR. RIVA'S CAR SHOULD HAVE BEEN SUPPRESSED, AS SUCH EVIDENCE WAS THE PRODUCT OF AN UNLAWFUL SEIZURE.
A. Officer Mitchell Effected A Seizure When He Parked His Marked Police Car Behind Mr. Riva's Vehicle Because A Reasonable Person In Mr. Riva's Position Would Not Have Believed That He Was Free To Leave At That Point.
B. Officer Mitchell Lacked A Sufficient Basis For Detaining Mr. Riva As An Exercise Of The Officer's Community Caretaking Function Because There Was No Indication That The Safety Or Well-Being Of Either Of The Occupants Was In Danger.
C. Officer Mitchell Lacked Sufficient Grounds For Conducting An Investigative Detention Of Mr. Riva Because He Lacked A Reasonable And Articulable Suspicion That Criminal Activity Was Afoot When Mr. Riva Was Initially Detained.
III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. RIVA VIOLATED N.J.S.A. 2C:36-2 BECAUSE THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH THAT MR. RIVA POSSESSED THE REQUISITE INTENT TO USE THE PARAPHERNALIA TO ENGAGE IN CRIMINAL ACTIVITY.
IV. ASSUMING, ARGUENDO, THAT MR. RIVA VIOLATED N.J.S.A. 2C:36-2, THERE IS AN INSUFFICIENT NEXUS BETWEEN THE OFFENSE AND HIS EMPLOYMENT TO WARRANT FORFEITURE OF HIS JOB UNDER N.J.S.A. 2C:51-2a(2).
Because the circumstances suggest that the judgment has collateral consequences beyond the mere stigma a criminal conviction carries, we conclude that the principles that apply when a defendant dies during pendency of an appeal as of right permit our consideration of the merits of this appeal. See State v. Gartland, 149 N.J. 456 (1997). In reaching the merits, we agree with defendant's contention that the evidence seized from his vehicle should have been suppressed.
In considering the impact of a defendant's death during appellate proceedings, it is helpful to first consider the federal approach. In a brief opinion, in which the Court dismissed a petition for certiorari due to the intervening death of the defendant-petitioner, Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed. 2d 531 (1976), the Court overruled its earlier decision in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed. 2d 200 (1971), which held that the scope of abatement in such circumstances should be determined by the lower federal courts. Following Dove, most of the federal courts of appeals have concluded, as described in United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977), that when death has "deprived the accused" of an appeal as of right, "the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of [our] system for finally adjudicating guilt or innocence"; as a result, the federal approach requires a determination that the appeal be deemed moot, the conviction vacated, and the matter remanded for a dismissal of the indictment. Accord United States v. Christopher, 273 F.3d 294, 296-97 (3d Cir. 2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2764, 153 L.Ed. 2d 847 (2002); United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998); United States v. Zizzo, 120 F.3d 1338, 1346 (7th Cir.), cert. denied, 522 U.S. 998, 118 S.Ct. 566, 139 L.Ed. 2d 406 (1997); United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed. 2d 292 (1997); United States v. Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994).*fn4
However, in State v. Gartland, supra, 149 N.J. at 464, our Supreme Court held that the brightline federal rule would not be applied because New Jersey "has followed a middle course." The Court made particular note of the rule regarding standing to appeal, which states that "[i]n any criminal action, any defendant, the defendant's legal representative, or other person aggrieved by the final judgment of conviction entered by the Superior Court . . . may appeal." R. 2:3-2. The Court also chose not to follow the federal approach because our state constitution does not "confine the exercise of the judicial power to actual cases and controversies," as does the federal constitution; by the same token, the Court emphasized that our courts do "not render advisory opinions or exercise [their] jurisdiction in the abstract." 149 N.J. at 464. In addition, the Court recognized its tradition of entertaining cases, even when they become moot, "when the issue is of significant public importance and is likely to recur." Ibid. In summarizing these principles, the Gartland Court declared that "[t]he power to review a criminal appeal of a dead defendant is rarely exercised." Ibid. (citing State v. DeBellis, 174 N.J. Super. 195, 198 (App. Div. 1980)).
In Gartland, defendant was charged with killing her husband in the bedroom of their home. She was convicted of reckless manslaughter and appealed, raising the question of whether she had a duty to retreat. We affirmed and defendant died after her petition for certification was filed. 149 N.J. at 462.
The Supreme Court concluded that because the matter raised issues about domestic violence and because of the Legislature's "strong commitment to the eradication of domestic violence," it was "worth the judicial effort" to address concerns about the Domestic Violence Act in that matter despite the defendant's intervening death. Id. at 465. Yet, the Court maintained that because the power to entertain a criminal appeal even after death "should be sparingly exercised," a conviction should not be set aside when a defendant has died "unless the record shows palpably that there has been a fundamental miscarriage of justice, an error that 'cut mortally into the substantive rights of the defendant . . . [or impaired] a defendant's ability to maintain a defense on the merits.'" Ibid. (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). The Court explained that it had adopted this more restrictive approach to appellate review upon a defendant's death because there is an intrinsic imbalance in the conduct of a criminal appeal on behalf of a deceased defendant. The contest is one-sided. The defendant can no longer be retried for the crime. The State and the victims of the crime cannot win. If the conviction is set aside, the State is realistically deprived of the opportunity to vindicate the public interest in enforcement of the law. On the other hand, important interests of the defendant or society at large may be at stake if an erroneous conviction is left standing. [Id. at 465-66.]
In short, what becomes of a dead defendant's appeal depends on the particular circumstances, including the importance of the issues raised and the continuing impact upon defendant's dependents if the conviction remains in place and the impact on the public if the conviction is vacated.
The record provides no evidence -- only suggestions --about the effect of either the continuation of the conviction or its vacation. As a result, prior to the argument of this appeal, we wrote to counsel asking that they be prepared to address "[t]he continuing impact of the judgment of conviction, or its vacation, on any of defendant's dependents or on the public, and . . . [w]hat, if any, impact has the forfeiture of office on defendant's family." During argument, it was suggested that defendant's estate will be entitled to reimbursement of back pay that accrued from the date of the municipal conviction until defendant's death if the conviction is reversed; on the other hand, if affirmed, the public will be spared the payment of such compensation.*fn5 In addition, defense counsel suggested that the entitlement to a death benefit might be affected by the outcome of this appeal.*fn6
We are satisfied that our disposition of this appeal has a larger impact than the mere stigma of the conviction on the deceased. Since there is a potential financial impact for both defendant's family and the public in the balance, we conclude that, in the words of the Court in Gartland, it is "worth the judicial effort" to resolve the merits of this appeal. Id. at 465.
It is important to recognize, in reviewing the order denying the suppression of evidence, that the State argues that in approaching defendant's vehicle with his vehicle, the officer was only executing a field inquiry. The State concedes that at the time of this approach, the officer lacked a reasonable articulable suspicion and that if the officer was conducting an investigatory stop, such stop consequently cannot be sustained; defendant concedes that the officer gained a basis upon which to conduct an investigatory stop when he found the empty baggie and Q-tip on the pavement near defendant's vehicle. Accordingly, the linchpin to the suppression of the evidence obtained from defendant is whether the officer actually was conducting an investigatory stop, as opposed to a field inquiry. Before considering the factual circumstances relating to that inquiry, it is important to consider the three different types of police encounters that the law recognizes.
We start by acknowledging that warrantless searches and seizures are presumptively invalid as contrary to the United States and New Jersey Constitutions. State v. Cooke, 163 N.J. 657, 664 (2000); State v. Patino, 83 N.J. 1, 7 (1980). When no warrant is sought, as here, the State has the burden of demonstrating that the search falls within "one of the few well-delineated exceptions to the warrant requirement." State v. Maryland, 167 N.J. 471, 482 (2001). There are three constitutionally permissible forms of warrantless police encounters with citizens, namely: (1) the encounter occasioned by probable cause; (2) the investigatory stop; and (3) the field inquiry. State v. Pineiro, 181 N.J. 13, 20-21 (2004).
The encounter based upon probable cause requires "a well-grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001). Probable cause "exists where the facts and circumstances" based upon "reasonable trustworthy information" are sufficient "to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (internal quotes omitted), cert. denied, 531 U.S. 1146, 121 S.Ct. 1083, 148 L.Ed. 2d 959 (2001).
The investigatory stop, sometimes referred to as a Terry*fn7 stop, is valid if "based on specific articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Nishina, 175 N.J. 502, 510-11 (2003) (internal quotes omitted). The suspicion "need not rise to the 'probable cause necessary to justify an arrest.'" Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 511).
The field inquiry is "the least intrusive" constitutionally permissible encounter. Pineiro, supra, 181 N.J. at 20. It occurs "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions,'" and is permissible "so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting Nishina, supra, 175 N.J. at 510). When subjected to a field inquiry, a person "'need not answer any questions at all and may go on his way.'" Maryland, supra, 167 N.J. at 483 (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)).
The legitimacy of a field inquiry turns on the manner of execution. In this regard, we have the considerable guidance of our Supreme Court:
A field inquiry is not considered a seizure "in the constitutional sense so long as the officer does not deny the individual the right to move." The officer's demeanor is relevant to the analysis. For example, "an officer would not be deemed to have seized another if his questions were put in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature." Neither the officer's subjective intent, nor the subjective belief of the citizen, determines whether a seizure has occurred. An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted. [State v. Rodriguez, 172 N.J. 117, 126 (2002) (citations omitted).]
To summarize, a legitimate field inquiry may occur for any reason but, for the field inquiry to remain legitimate, the law enforcement officer is not entitled to prevent the individual's movement and the questioning must not be overbearing. In other words, the field inquiry loses its legitimacy when a law enforcement officer prevents the individual from departing or executes the encounter in an overbearing way. At that point, the field inquiry must be viewed as an investigatory stop, which must be deemed unlawful absent articulable facts giving rise to a reasonable suspicion of criminal activity.
At the suppression hearing, the municipal judge heard testimony from both Officer Mitchell and defendant. A review of their testimony reveals that they disputed very little.
The encounter occurred on February 18, 2006, at 2:32 p.m., in the parking lot of a CVS drugstore in Wayne. The drugstore was open for business and defendant's vehicle was legally parked between the painted lines of the stall he had chosen when Officer Mitchell approached in his marked vehicle. Defendant's vehicle was parked approximately 100 to 150 feet from the store's entrance and a substantial distance from other vehicles parked in the lot. It was the location of the vehicle in the lot that prompted Officer Mitchell's interest in conducting a field inquiry.
The municipal judge accepted the fact that the police vehicle was brought to a stop behind defendant's vehicle. The officer testified that he parked at a "canted" angle toward the back of defendant's vehicle; defendant's vehicle was parked head-on toward a retaining wall. While testifying, Officer Mitchell drew a sketch of the position of the two vehicles. That sketch has not been included in the record on appeal, so we are left to understand the position of the vehicles from the findings that were made, which are based upon Officer Mitchell's testimony.
As we have observed, Officer Mitchell testified that he stopped his vehicle toward the back of the passenger side of defendant's vehicle and at an angle, as suggested by his use of the word "canted." How much of his vehicle was behind defendant's vehicle is not entirely clear. But, in determining whether defendant was free to leave, as was his right, Officer Mitchell acknowledged that defendant could not have simply driven straight back out of his parking spot without colliding with the police vehicle; he also acknowledged the difficulty defendant would have encountered if he attempted to maneuver around the police vehicle:
Q: And you stated before that you pulled behind Mr. Riva's vehicle?
Q: And the center of your hood was at the rear -- the rear passenger side of his car?
A: Bumper, yes.
Q: Okay. So that was the center of your hood?
A: Roughly, yes.
Q: And in front of Mr. Riva is a -- probably approximately ten-foot stone wall?
A: Yes, sir.
Q: And at that time you exited your vehicle?
Q: So your car was placed in park behind Mr. Riva's car?
A: Yes, sir.
Q: And if Mr. Riva had tried to back out of that car not knowing you were there he could have hit your car, correct?
Q: And -
A: If he went straight back he could have.
Q: Well, he couldn't have gone forward, correct?
Q: And he -
A: But if he cut -
Q: -- couldn't have gone to the side?
A: If he cut the wheel hard he probably could have got out.
Q: He would have had to make numerous maneuvers -
A: A pretty good turn.
Q: He would have had to make numerous maneuvers to get that car out cutting the wheel tight. Is that not correct?
A: Well, he had a small Honda Civic. Like I said, I parked six to eight feet away from the corner of that bumper. If he cut it hard he could have, you know, I'm sure he could have if he was a good driver. I don't know, you know, if he would have had to back in and out. [Emphasis added.]
When asked questions about whether defendant was free to leave, Officer Mitchell gave the following illuminating testimony:
Q: And if this car had tried to maneuver around you[,] you would have still tried to speak to the occupants, correct?
A: I would want to know why they were leaving.
Defendant's version of how Officer Mitchell parked in conjunction with defendant's vehicle appears to conflict in only one respect -- the distance between the two vehicles after Officer Mitchell parked behind defendant's vehicle. The municipal judge accepted Officer Mitchell's "guesstimate" that he parked "six to eight feet" behind defendant's vehicle and not defendant's testimony that the distance was more like "three to four feet."*fn8 The Law Division judge, in accepting the municipal judge's credibility findings, also accepted Officer Mitchell's testimony that he was six to eight feet behind defendant's vehicle. This finding is entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).
Despite our deference to the factual scenario described by Officer Mitchell, we conclude that the evidence should have been suppressed.
The State concedes that when Officer Mitchell parked behind defendant's vehicle he did not have probable cause or a reasonable articulable suspicion of criminal activity, only that the officer intended to conduct a field inquiry.*fn9 The officer was simply curious as to why defendant's vehicle was parked far away from other vehicles in the lot. The question, then, is whether the officer properly conducted this field inquiry.
What is claimed to be a field inquiry is not a field inquiry when it extends beyond an officer's approach of an individual with a conversational request that he or she answer questions, or when, from the individual's perspective, State v. Tucker, 136 N.J. 158, 165-66 (1994), he or she is prevented from leaving or does not have the choice of declining the officer's questions, Maryland, supra, 167 N.J. at 483 (holding that "conclusory testimony at the suppression hearing that defendant 'was free to leave' is not probative"). The correct inquiry is whether the individual, under all the attendant circumstances, reasonably believed he could depart without answering any of the officer's questions.
Officer Mitchell acknowledged, and it was found, that he parked his police vehicle six to eight feet behind defendant's vehicle. We defer to this finding, but we do not defer to the conclusion that the distance between the two vehicles suggested that defendant was free to leave. Parking in a way that would only "probably" permit "a good driver" to maneuver around the police vehicle "with a hard cut of the wheel," would not communicate to that driver he was free to go on his way; the only reasonable conclusion is to the contrary. Indeed, although neither the municipal judge nor the Law Division judge commented on it, we are also persuaded by the officer's testimony -- that, if defendant and his passenger attempted to leave, the officer "would want to know why they were leaving" -- that defendant was not free to leave.
We hold that the evidence credited by the municipal judge and the Law Division judge does not support their conclusion that the officer had not "seized" defendant or his vehicle. The placement of the police vehicle behind defendant's vehicle was intended to convey to defendant that he was not free to leave. If the officer simply wanted to have a conversation with defendant about what he was doing, he could have simply parked parallel to defendant and got out of his vehicle to approach defendant's vehicle. The placing of a police vehicle behind a vehicle that was parked head into a retaining wall would lead the occupant of the parked vehicle to only one conclusion -- he or she was not free to leave.
The difference between an investigative stop and a field inquiry is significant. Recent case law demonstrates legitimate concerns about the need to keep clear the line between the two types of encounters. Had defendant guessed wrong about the officer's intent and had the defendant attempted to leave by assuming the officer was conducting a mere field inquiry, he ran a genuine risk of being charged with another criminal offense. See State v. Crawley, 187 N.J. 440 (holding that an individual commits the crime of obstruction if he disobeys a police command and flees from an unconstitutional investigatory stop), cert. denied, __ U.S. __, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006). Further consequences could have ensued if defendant -- in order to depart from this field inquiry -- had imperfectly attempted to maneuver around but came into contact with the police vehicle parked behind him. See State v. Williams, 192 N.J. 1, 4 (2007) (holding that "resistance and flight, which amounted to obstruction, broke the link in the chain between the initial unconstitutional stop and the later seizure of [evidence]," which would not therefore be suppressed pursuant to the exclusionary rule). In short, much rides on how well an individual determines the nature of the police encounter.
As a result, it is important not only to an individual's understanding of his or her rights at the time of the encounter, but also to the State's ability to make use of evidence acquired thereby, that police officers not put individuals to the task of guessing whether they are being subjected to an investigatory stop or a mere field inquiry. When a law enforcement officer truly intends on conducting a field inquiry, the officer should be certain to approach the individual in a way that makes clear that he or she is not acting more intrusively than the law permits.
Were our courts to loosely interpret the standards announced in State v. Rodriguez, supra, 172 N.J. at 126, and other cases, in defining what type of approach is permitted in conducting a field inquiry, the result would be the gradual evisceration of the articulable-suspicion standard. That is, if we were to hold in instances such as that presented here that an officer may conduct a field inquiry in the same or similar manner of an investigatory stop, there would be no point in ascertaining whether the circumstances met the articulable-suspicion standard. An unlawful investigatory stop could be excused by the mere assertion that the officer was conducting a field inquiry, which may be conducted at any time for any reason. Because of the dire constitutional consequences of a blurred line between the type of approach required for a field inquiry and that allowed when conducting an investigatory stop, our decisions must keep that line as bright as the law presently requires.
Here, the officer's conduct was not consistent with a field inquiry; accordingly, the encounter must be viewed as an investigatory stop, which in this case was unlawful due to the lack of articulable facts of a suspicion of criminal activity, and the evidence seized from defendant should therefore have been suppressed. In applying the Gartland standard for setting aside a conviction following a defendant's death, we conclude that the admission of evidence, which should have been suppressed, constituted "a fundamental miscarriage of justice, [which] 'cut mortally into the substantive rights of the defendant . . . [and impaired his] ability to maintain a defense on the merits.'" 149 N.J. at 465 (quoting Harper, supra, 128 N.J. Super. at 277). Accordingly, the conviction based on a trial that included this evidence must be reversed.*fn10 As a result, we need not reach any of the other issues raised by defendant in this appeal.