220 A.3d 498
N.J. Super. Ct. App. Div.2019Background
- Gregory A. Martinez was indicted on multiple drug-possession and distribution counts based on purchases from confidential informant (CI) Delvi Cruz.
- Defense counsel Joseph Mazraani interviewed Cruz in Cruz’s attorney Policastro’s office on March 12, 2019; unknown to defense, Cruz wore body wires and the prosecutor’s office recorded the interview after obtaining a consensual-intercept authorization.
- The prosecutor produced the recording and a transcript to defense three days before trial; defendants moved to dismiss or, alternatively, to bar Cruz’s testimony. The trial court barred the State from using the recording but allowed the defense to use it and denied dismissal.
- The Appellate Division granted leave to appeal, stayed the trial, and heard amici from the Attorney General and Public Defender offices and the ACDL-NJ.
- The panel held that although the recording complied with New Jersey’s Wiretap Act (consent + prior approval), clandestine recording of a defense attorney’s witness interview can implicate Sixth Amendment access-to-witnesses and attorney work-product protections, and that the prosecutor’s office failed to maintain an appropriate internal screen ("taint team").
- Remedy ordered: affirm limited exclusion, require transfer of the narcotics prosecution to an untainted prosecutorial team (Attorney General or another county), and remand for a plenary hearing to determine whether Cruz or other witnesses are tainted or should be precluded from testifying.
Issues
| Issue | State's Argument | Martinez's Argument | Held |
|---|---|---|---|
| 1) Did the recording violate the Wiretap Act? | Recording lawful: Cruz consented and prior prosecutorial authorization obtained. | Authorization invalid because no reasonable suspicion to justify recording an attorney interview. | Wiretap Act compliance requires consent and prior approval; reasonable-suspicion is not statutorily required post‑1999, so no statutory violation. |
| 2) Did the clandestine recording infringe defendant’s constitutional right to counsel / access to witnesses and reveal work product? | Recording was innocuous; CI could report interview later from memory. | Secret taping chilled witness access and disclosed defense work product and trial‑preparation details. | Recording, even if statutorily authorized, can invade Sixth Amendment access and reveal attorney work product; here some work product was revealed and the potential for prejudice exists. |
| 3) What standard governs prior authorization and is it judicially reviewable? | Prosecutor has broad discretion; authorization is not subject to judicial review. | Prior authorization must be constrained by standards and subject to review to protect privacy and privilege. | Prior authorization is not unfettered; a baseline relevance standard is expected and the authorization process must have meaningful standards and oversight (judicial review not categorically foreclosed). |
| 4) What remedies are appropriate for the improper handling? | Trial court’s exclusion of the State’s use of the recording is sufficient. | Stronger relief required: dismissal, disqualification of the prosecutor’s office, or barring the CI as a witness. | Dismissal not warranted. Court affirmed limited exclusion, but modified remedy: required transfer to an untainted prosecutorial team (AG or other county), remanded for plenary hearing on witness taint and whether witnesses should be excluded; ordered creation/usage of screened "taint teams" in future. |
Key Cases Cited
- State v. Worthy, 141 N.J. 368 (1995) (prior supervisory approval for consensual intercepts is an indispensable privacy protection)
- State v. K.W., 214 N.J. 499 (2013) (reaffirmed strict interpretation and importance of prior‑authorization safeguards)
- State v. Blazas, 432 N.J. Super. 326 (App. Div. 2013) (government interference with pretrial access to witnesses can violate due process and the right to present a complete defense)
- Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966) (prosecutor advising witnesses not to speak to defense denied defendant a fair opportunity to interview witnesses)
- Hickman v. Taylor, 329 U.S. 495 (1947) (established attorney work‑product protection)
- United States v. Nobles, 422 U.S. 225 (1975) (work‑product doctrine applies in criminal cases)
- State v. Sugar, 84 N.J. 1 (1980) (remedies for prosecutorial intrusion may include reassignment/untainting rather than outright dismissal)
- International Bus. Mach. Corp. v. Edelstein, 526 F.2d 37 (2d Cir. 1975) (private pretrial interviews are work product and ordinarily conducted in private)