The opinion of the court was delivered by: Carroll, P.J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Facts and Procedural History
This matter is before the court on defendant's motion to dismiss the indictment. The factual and procedural background which follows is taken from the briefs and attached exhibits submitted by defendant and the State, as well as the testimony and evidence adduced at the evidentiary hearing held in connection with the motion.
On August 23, 2006, police discovered the body of Paul Duncsak at 95 West Crescent Avenue, Ramsey, New Jersey. The cause of death was gunshot wounds from a .22 caliber firearm. Duncsak was the ex-husband of Stacey Walker. Defendant is the father of Stacey Walker and the former father-in-law of Duncsak. Dottie Ates is the wife of defendant and the mother of Walker. Myra Barnes is the mother of defendant.
On September 18, 2006, the Honorable Marilyn C. Clark, P.J.S.C., Passaic County, authorized the electronic interception of cellular telephone and telephone communications between Walker, defendant, Dottie Ates, and other as yet unidentified persons. On September 21, 2006, Judge Clark amended the order of September 18, 2006, to extend the hours of authorized interception. On September 25, 2006, Judge Clark authorized the electronic interception of cellular telephone and electronic communications between Walker, defendant, Dottie Ates, Brenda Ates, Barnes, and other as yet unidentified persons. On October 6, 2006, Judge Clark authorized an extension of the electronic interception of cellular telephone and telephone communications between Walker, defendant, Dottie Ates, and other as yet unidentified persons. On October 18, 2006, Judge Clark again authorized an extension of the electronic interception of cellular telephone and telephone communications of Walker, defendant, Dottie Ates, Brenda Ates, Barnes and other as yet unidentified persons.
On June 6, 2007, Judge Clark issued complaint warrants against defendant charging him with murder, felony murder, burglary, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. Defendant was thereafter arrested on the charges and a first appearance was held before the Honorable William C. Meehan, P.J.S.C. Bail was originally set at $2,000,000, which was subsequently reduced to $1,000,000 by Judge Meehan at a bail hearing on July 25, 2007. On September 6, 2007, a probable cause hearing was held at which Judge Meehan found that sufficient probable cause was established for the issuance of the subject complaints.
On September 28, 2007, Bergen County Indictment No. 1606-07 was returned, charging defendant with murder, contrary to N.J.S.A. 2C:11-3(a)(1)(2) (count 1); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count 2); second degree burglary, contrary to N.J.S.A. 2C:18-2 (count 3); second degree possession of a weapon, a .22 caliber firearm, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count 4); third degree possession of a firearm without the requisite permit, contrary to N.J.S.A. 2C:39-5(b) (count 5); third degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count 6); fourth degree obstructing the administration of law or governmental function, contrary to N.J.S.A. 2C:29-1 (count 8), and third degree tampering with witnesses, contrary to N.J.S.A. 2C:28-5 (count 9).
On December 10, 2007, defense counsel was provided with eighty compact discs containing the discovery in this matter.
On January 6, 2009, defense counsel wrote a letter to the Honorable Peter Doyne, A.J.S.C., claiming that the State illegally intercepted and taped conversations between defendant and his attorney. Judge Doyne determined the motion should be heard by the Honorable Donald R. Venezia, J.S.C., unless the parties disagreed. The State objected and argued that the motion should be heard by the Honorable Harry G. Carroll, P.J.S.C. On February 19, 2009, Judge Venezia, after considering the briefs and arguments of counsel, determined that the motion to dismiss the indictment based on prosecutorial misconduct should be heard and decided by Judge Carroll. An order to that effect was filed on February 23, 2009.
The motion to dismiss the indictment now follows.
Defendant asserts that his right to effective counsel has been compromised, and therefore moves to dismiss the indictment. Defendant alleges that the prosecution illegally intercepted confidential communications that defendant had with his attorney, communications guarded by the Sixth Amendment. Defendant focuses on call #278 which is alleged to reveal vital strategy that defendant and his attorney planned to use at trial.
In point I of defendant's brief, he asserts that an attorney-client relationship had already been established between defendant and his attorney at the time of the illegal intercept. On August 25, 2006, Walter A. Lesnevich served a Notice of Representation on Officer John Haviland at the Bergen County Prosecutor's Office stating that Lesnevich & Marzano-Lesnevich, LLC represented defendant in all matters relative to the homicide of Duncsak. Therefore, it is defendant's position that the Bergen County Prosecutor's Office had full notice and knowledge that it was illegally intercepting communications between defendant and his counsel in September and October 2006.
In point II, defendant asserts that the illegally intercepted communication was confidential in nature. He claims that in order for the attorney-client privilege to apply, the communication must be such that the client either expressly made confidential or which he could reasonably assume would be confidential. See State v. Schubert, 235 N.J. Super. 212, 221 (App. Div. 1989). Defendant claims that he and his counsel were having an in-depth discussion about trial strategy and they would not have had such a discussion in the presence of anyone else. Defendant submits that the phone call should be heard by the court in camera, and that the prosecution should not be allowed to hear it. Defendant argues that if the court decides that the opposition has the right to review the phone call, the motion should be turned over to the Attorney General for the State of New Jersey and an Assistant Attorney General having no ties to Bergen County.
In point III, defendant posits that the prosecution did not make an application to Judge Clark for a warrant to intercept communications between defendant and his attorney. He claims that pursuant to N.J.S.A. 2A:156A-9 or 10, the prosecution may apply to the court for an order authorizing interception of a wire, electronic or oral communication if the authorization is made in writing upon oath or authorization. If the prosecution seeks the measure of wiretapping confidential communications between defendant and his attorney, the court must be satisfied that there is a "special need" for the interception. N.J.S.A. 2A:156A-11. Defendant claims that of the wiretap orders executed by Judge Clark, none of them authorized the prosecution to intercept confidential communications between defendant and his attorney. In fact, defendant contends, the authorizations specifically stated that, "there shall be no interceptions of any conversations of a privileged nature, e.g. lawyer client . . ." Thus, defendant contends that the violation warrants dismissal of the criminal prosecution of defendant. State v. Sugar, 84 N.J. 1, 22 (1980).
Point IV of defendant's brief contends that the Bergen County Prosecutor's Office performed an illegal intercept that violated defendant's right to effective counsel under the Sixth Amendment of the United States Constitution and Article 1 of the New Jersey State Constitution. Defendant asserts that in Sugar, the Supreme Court stated that if trial strategy was discussed, dismissal of the prosecution would be required. Sugar, supra, 84 N.J. at 22. Defendant in the instant matter submits that trial strategy was discussed, and thus, the indictment must be dismissed. The issues discussed, defendant argues, included defendant's defenses, which is what the attorney-client privilege protects. Defendant claims that in contrast to Sugar, where the intercepted conversations involved only an "awareness of possible defenses," there was a detailed conversation between attorney and client that has put the State on notice of defendant's trial strategy.
The defendant further contends that Sugar and the present case are distinguishable with respect to the reaction by the prosecution. In Sugar, defendant posits, the authorities acknowledged their wrongdoing and thereafter substituted the investigating team. In the present case, defendant argues that the Bergen County Prosecutor's Office has built a wall around their misconduct and they never disclosed that they recorded this conversation and never provided a written transcription. At the conference before Judge Doyne, prosecutor Molinelli admitted that the prosecution knew that they intercepted and recorded this conversation. Thus, defendant asserts that he has been denied his right to effective assistance of counsel. See State v. Bellucci, 81 N.J. 531, 537-38 (1980).
In point V, defendant contends that the case against him should be dismissed because the twenty-three additional attorney-client phone calls that were recorded have destroyed the attorney-client relationship. On disc #69, defendant claims twenty-three calls clearly identify Lesnevich and defendant as the parties speaking. The tapes run for the duration of the call, but nothing can be heard. However, defendant asserts that the interception was not instantly terminated. Defendant claims that attorney trust was thereby compromised because it is unknown what was on the privileged calls that were erased, and it is unknown what trial strategy was disclosed. Attorney and client claim to have no idea what has been heard by the State. Thus, attorney-client trust is destroyed because of the fear and suspicion defendant has of the State. Defendant claims that this is the situation that the New Jersey Supreme Court in Sugar indicated requires a dismissal.
Defendant argues in point VI of his brief that the criminal prosecution should be dismissed even in the absence of demonstrable prejudice to him. Defendant acknowledges that the State may claim that he has suffered no actual prejudice as a result of the illegal interception. However, it is defendant's position that actual prejudice is not required. See Glasser v. United States, 315 U.S. 60, 76, 62 S. Ct. 457, 467, 86 L. Ed. 680, 702 (1942). Defendant claims that the ...