46 A.3d 550
N.J. Super. Ct. App. Div.2012Background
- Defendant appealed a murder conviction for the August 23, 2006 killing of Paul Dunesak, the former husband of defendant’s daughter Stacey.
- The trial record showed extensive pretrial wiretapping disputes and discovery surrounding recordings of attorney-client conversations.
- The State used wiretap evidence obtained in New Jersey; the recordings included a full capture of one attorney-client conversation (call #278) later suppressed.
- Defendant’s alleged interstate travel and timing were central to disputing whether he could have committed the murder in New Jersey and then traveled to Louisiana.
- A reenactment of a drive from Ramsey, New Jersey to Sibley, Louisiana was admitted to show travel time, despite defense timing objections; the court later suppressed only call #278 but allowed other wiretap evidence.
- Sentencing merged certain counts into a first-degree murder conviction with a life sentence and a lengthy parole ineligibility period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of Wiretap Act extraterritorial reach | Act permits interception with NJ listening post, even if parties are outside NJ | Act unconstitutional for extraterritorial reach and federal preemption | Act constitutional; NJ listening post suffices; extraterritorial reach not a constitutional flaw |
| Attorney-client call #278 interception and remedy | Interception violated attorney-client privilege; dismissal warranted | Remedy insufficient; privilege violation tainted proceedings | Dismissal not required; call #278 suppressed and overall taint limited to subsequent interceptions |
| Prosecutor's summation characterization of medical expert | Comment that expert was preposterous biased jury | Improper remark prejudiced defense | Comment improper but not capable of producing unjust result; no reversal based on plain error |
| Reenactment drive evidence admissibility and prejudice | Drive time corroborates travel possibility; probative | Prejudicial due to lack of pretrial disclosure | Evidence admissible; probative value outweighs prejudice; defense timing issues resolved |
Key Cases Cited
- State v. Catania, 85 N.J. 418 (1981) (strict construction to protect privacy under Wiretap Act)
- State v. Worthy, 141 N.J. 368 (1995) (privacy safeguards under Wiretap Act; appellate standard)
- State v. Cerbo, 78 N.J. 595 (1979) (privacy protections under Wiretap Act)
- In re Wire Communications, 76 N.J. 255 (1978) (commission of wiretap procedures; privacy focus)
- United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992) (situs of interception; extraterritorial listening post permissible)
- United States v. Nelson, 837 F.2d 1519 (11th Cir. 1988) (interception where contents heard within jurisdiction; listening post location relevant)
- United States v. Duong, 471 F.3d 1107 (9th Cir. 2006) (interception authority across jurisdictions)
- United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) (extraterritorial interception considerations)
- United States v. Denman, 100 F.3d 399 (5th Cir. 1996) (extraterritorial wiretap considerations)