Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Martinez

Superior Court of New Jersey, Appellate Division

October 29, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
GREGORY A. MARTINEZ, Defendant-Appellant.

          Argued October 2, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-05-0586.

          Jeffrey S. Farmer argued the cause for appellant (Mazraani & Liguori LLP, attorneys; Jeffrey S. Farmer and Joseph M. Mazraani, on the briefs).

          Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and on the briefs).

          Valeria Dominguez, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Valeria Dominguez, of counsel and on the briefs).

          Joseph J. Russo, Deputy Public Defender, argued the cause for amicus curiae State of New Jersey Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Joseph J. Russo, of counsel and on the briefs).

          John J. O'Reilly argued the cause for amicus curiae Association of Criminal Defense Lawyers (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; John J. O'Reilly, of counsel and on the briefs; Courtney A. Johnson, on the brief).

          Before Judges Sabatino, Sumners and Natali.

          OPINION

          SABATINO, P.J.A.D.

         This novel case concerns a prosecutor's office's use of body wires on a paid informant, an anticipated trial witness for the State in a narcotics case, to secretly monitor and record a criminal defense attorney's pre-trial interview of that informant.

         An assistant prosecutor authorized the surreptitious taping based upon information - which turned out to be untrue - that the attorney might offer the witness a bribe. When the prosecutor's office supplied the recording and a transcript of it to the attorney in discovery three days before his client's trial, he moved to dismiss the indictment, or, alternatively, to bar the witness's testimony for the State.

         In its oral ruling, the trial court remarked that the secret recording in this case "should send a chill down the spine of any criminal defense attorney or prosecutor [who] has ever interviewed a witness." The court found the prosecutor's office lacked reasonable suspicion that "evidence of criminal conduct would be derived from [the] interception." Nonetheless, the court concluded the defense's trial strategy had not been sufficiently divulged during the taped interview "to the extent that would justify" the dismissal of indictment or preclusion of the witness's testimony. The court adopted a more limited remedy, barring the State from using the taped interview as evidence at trial. Defendant moved for leave to appeal, which we granted.

         For the reasons that follow, we affirm the trial court's decision in part, modify it in part, and remand it in part. As conceded by defendant and related amici, the informant's secret taping of the interview with his one-party consent did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act ("the Wiretap Act"), N.J.S.A. 2A:156A-1 to -34. However, we hold that mere compliance with the Wiretap Act does not mean that the secret taping is permissible, particularly in the manner in which it was conducted in this case. Specifically, without appropriate limitations, such recording can have the capacity to infringe upon a criminal defendant's constitutional right to fair and unimpeded access by his counsel to interview government witnesses, and the capacity to reveal attorney work product. The surveillance of attorney interviews also can implicate ethical norms, particularly those governing prosecutors.

         Based on the record developed thus far, we conclude the prosecutor's office erred in allowing detectives in the State's narcotics case and the attorney misconduct case to work jointly in the efforts to record the witness interview. The prosecutor's office further erred in allowing the assistant prosecutor who was handling the narcotics case to have access to the fruits of the surreptitious taping.

         Under the circumstances presented, the prosecutor's office instead was obligated to create two screened "taint teams" to proceed independently in: (1) the attorney conduct investigation and (2) the narcotics case. Because of that failure, and because attorney work product from the recorded interview was prejudicially divulged to the narcotics prosecutor and staff, the narcotics case must be transferred for handling by either the Attorney General or by another designated county prosecutor's office.

         Further, we remand the case for the trial court to conduct a plenary hearing to determine the extent to which the informant-witness may have been unfairly coached or influenced by the manner in which he was prepared by the State for the taped interview and the manner in which he was debriefed afterwards. Depending upon the results of that plenary hearing, a possible appropriate prophylactic remedy may be to disallow the informant-witness from testifying for the State at the narcotics trial. On remand, the trial court also shall determine if other prosecutorial witnesses were tainted because of their involvement in or exposure to the recording or its transcript.

         Lastly, we recommend that the Attorney General consider promulgating statewide guidelines and procedures addressing any future surreptitious prosecutorial taping of witness interviews by defense counsel.

         TABLE OF CONTENTS

         I. Factual and Procedural Background ............................................................. 6

         The Indictment and the Alleged Cocaine Sales ............................................ 6

         Defense Counsel's Interview of Cruz ........................................................... 7

         The State Turns Over the Interview Recording and Transcript on the Eve of Trial ........................................................... 8

         Defendant's Motions ................................................................................... 8

         The Present Interlocutory Appeal ................................................................ 9

         More Details Concerning the Recorded Interview ....................................... 9

         Cruz Meets with Detectives on March 11 and Consents to the Wire .......... 12

         The Recorded March 12, 2019 Defense Interview ..................................... 13

         Charges Lodged Against Policastro ........................................................... 15

         The April 11 Motion Hearing .................................................................... 15

         The Motion Judge's Ruling ....................................................................... 16

         Proceedings Before the Presiding Criminal Judge ..................................... 18

         II. The Wiretap Act ....................................................................................... 18

         Requirements of the Wiretap Act .............................................................. 19

         The 1999 Amendment Eliminating the Reasonable Suspicion Standard ..... 21

         The "Indispensable Protection" of Supervisory Review ............................. 22

         Special Considerations in Authorizing Intercepts of Attorneys .................. 24

         Judicial Reviewability of Wiretap Authorizations ..................................... 26

         Comparative Discussion of the Federal Wiretap Act and the Justice Manual ................................................................................... 28

         The "Relevance" Standard.........................................................................31

         III. Infringement Upon Defendant's Constitutional Rights and Work Product Disclosure......................................................................33

         Constitutional Provisions and Principles...................................................33

         State v. Blazas..........................................................................................34

         Gregory v. United States...........................................................................37

         Other Cases...............................................................................................38

         The State's Pre-Wire Preparation of Cruz..................................................40

         The Attorney Work Product Privilege.......................................................42

         At Least Some Work Product Was Revealed Here.....................................50

         IV. Ethical Rules Addressing Clandestine Recording By Attorneys and the Special Duties of Prosecutors.....................................................51

         ABA Opinion 337.....................................................................................51

         ABA Formal Opinion 01-422....................................................................52

         The New Jersey RPCs...............................................................................54

         Special Ethical Restrictions Imposed on Prosecutors.................................54

         The Need for "Fire-walls" or "Taint Teams"..............................................57

         Summary..................................................................................................58

         V. Implications and Remedies......................................................................59

         VI. Conclusion.............................................................................................69

         I. (Factual and Procedural Background)

         The Indictment and the Alleged Cocaine Sales

         In July 2016, a Middlesex County grand jury returned Indictment No. 17-05-0586, charging defendant Gregory A. Martinez with:

• three counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts 1, 5, and 8);
• three counts of second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (counts 2, 6, and 9);
• two counts of third-degree distribution of a controlled dangerous substance near or on school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7(a) (counts 3 and 7); and
• one count of second-degree distribution of a controlled dangerous substance within 500 feet of certain public property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1(a) (count 4).

         The charges resulted from three instances between March 22 and July 8, 2016, during which defendant allegedly sold cocaine to Delvi Cruz. Cruz was then cooperating with the county prosecutor's office as a confidential informant ("CI"), pursuant to a plea agreement.[1]

         Defense Counsel's Interview of Cruz

         After learning the identity of the CI, defense counsel for Martinez, Joseph M. Mazraani, requested, through Cruz's counsel Michael A. Policastro, to conduct a pretrial interview with Cruz.

         On March 12, 2019, Mazraani and his investigator Dave Gamble met with Cruz in Policastro's office (the "Mazraani interview"). [2] Policastro, who apparently was in court on another matter that day, was not present for the Mazraani interview. Nor was anyone there in person from the prosecutor's office.

         Unbeknownst to the defense or to Policastro, Cruz wore two listening devices at the interview: one on his waist and another in his pocket. Cruz wore the devices at the request of detectives from the prosecutor's office, whose personnel recorded the Mazraani interview as it occurred.

         The State Turns Over the Interview Recording and Transcript on the Eve of Trial

         Just three days before the scheduled trial date the State turned over certain discovery to the defense, including a recording and the rough transcript of the Mazraani interview, as captured on the device Cruz had worn at his waist.

         Defendant's Motions

         After receiving the recording and rough transcript, defendant immediately moved to dismiss the indictment or, in the alternative, to bar Cruz's testimony.

         On April 11, 2019, the trial court denied the motion to dismiss and the defense's application for a stay of the trial. However, the court held that: (1) the State could not use the Mazraani interview recording at trial, (2) the defense could use the recording, if it desired, to impeach Cruz, and (3) jury selection would be briefly adjourned.

         The Present Interlocutory Appeal

         Defendant filed an application for emergent appellate relief and also moved for leave to appeal. The Association of Criminal Defense Lawyers of New Jersey ("ACDL-NJ") moved to appear as amicus curiae in support of defendant's position.

         We granted defendant's motion for leave to appeal, and the ACDL-NJ's amicus motion. We also invited the Attorney General and the Office of the Public Defender to participate as amici, and ordered a stay of defendant's trial. Both the Attorney General and the Office of the Public Defender accepted our invitation to appear as amicus curiae.[3]

         More Details Concerning the Recorded Interview

         The record reveals this additional background concerning Cruz's surreptitious recording of his interview with Martinez's counsel.

         In early March 2019, Cruz received a call from Policastro stating that Mazraani "wanted to communicate with" him. Cruz also received an Instagram "friend request" from defendant. Cruz reported these contacts to both a Detective and Sergeant from the prosecutor's office. The Sergeant was heavily involved in the narcotics case, and the record shows the Detective was involved in the attorney investigation. At the very least, they both took part in recruiting Cruz for the wiretap and in carrying out the recording. Both officers are identified on the interview transcript as being "present" when the body wire was active. The Sergeant is the first and last voice on the recording. The State has announced it plans to call him as a witness at defendant's narcotics trial.

         Cruz recounted the events leading to the Mazraani interview in a transcribed statement he gave to detectives on March 14, 2019, two days after the interview occurred (the "March 14 statement"). Cruz explained his initial reaction to the interview request:

And um. I was surprised. I asked my attorney what's going, what these people want from us? He said he don't know, he probably, my attorney tell me that he probably want to talk about a case. And I asked my attorney why you don't talk to them? That way I don't have to be involved with any conversation. He said no he want to talk to you directly. If you'll be able to talk to him let me know and I, we make a meeting in my office and you meet over there . . .

         Referring to the Detective, Cruz "notified the detective in the prosecutor office" that Mazraani wanted to meet with him. In his March 14 statement, Cruz explained:

[Cruz:] I called Michael Policastro again to tell him that we gonna have the meeting and I ask him again what exactly they want from us and the answer was he don't know exactly what they want from us. They probably want to talk about a case or they might want to offer something. I ask him . .
Q. They want to offer what exactly . . .
A. I asked, I asked my attorney what exactly they, he believe they probably gonna ask or offer. (inaudible) and he said I'm not sure but they probably could ask can [sic] offer money another offer [sic]. I don't know exactly what they want. They probably want to talk about a case, but I don't know anything about this. They just, I just give an idea what could happen [sic].
Q. Did he say how much money if anything?
A. No.
Q. No[?]
A. He just assuming what they, what they could offer [sic].
Q. Okay.
A. Just give an idea.

[(Emphasis added).]

         After reporting his conversation with Policastro to the Sergeant on Friday, March 8, 2019, Cruz "called Policastro . . . to set up a meeting" with Mazraani in Policastro's office.

         That same day, March 8, a Deputy First Assistant Prosecutor signed a "Consensual Interception Authorization" allowing the detectives to intercept Cruz's communications during the following ten days. The wire authorization form identified Mazraani and Policastro as the two "Target(s)," and listed "Witness Tampering" under "Initial Crimes or Offenses."

         The record does not reveal what other information, if any, the Deputy First Assistant possessed before signing the wire authorization. In particular, there is nothing to indicate whether the Deputy First Assistant was aware that the named "targets" were attorneys, that the recording would take place at a law firm, or that the recording would be of a pre-trial defense interview.

         Cruz Meets with Detectives on March 11 and Consents to the Wire

         On Monday evening, March 11, Cruz met at a diner with the Detective, Sergeant, and another officer. Cruz discussed, as he put it, "everything," and gave consent to wear a wire and record his meeting with Mazraani in Policastro's office.

         In his report about the March 11 meeting, the Detective wrote that Cruz had stated that Policastro "indicated to [him] that Mazaraani [sic] wanted to speak about the case, and that typically in those meetings they offer him money." According to this report, Cruz "stated that he told Policastro that he intended on notifying the Prosecutor's Office of this meeting."

         The Recorded March 12, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.