The opinion of the court was delivered by ESPINOSA, J.A.D.The facts and issues in this case call upon us to examine the application of the Supreme Court's decisions in State v. Sugar (Sugar I), 84 N.J. 1, 417 A. 2d 474 (1980), and State v. Sugar (Sugar II), 100 N.J. 214, 495 A. 2d 90 (1985). As in Sugar, the police surreptitiously recorded conversations between a 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, 417 A.2d 474 (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.

The leading case in New Jersey on the inevitable discovery doctrine is State v. Sugar, 108 N.J. 151, 527 A.2d 1377 (1987). This Court considered issues related to the prosecution of the defendant on three separate occasions, State v. Sugar, 84 N.J. 1, 417 A.2d 474 (1980) (Sugar I ); State v. Sugar, 100 N.J. 214, 495 A.2d 90 (1985) (Sugar II ); and State v. Sugar, 108 N.J. 151, 527 A.2d 1377 (1987) (Sugar III ). Although the Court's opinion in Sugar I dealt with a violation of the defendant's Sixth Amendment right to a confidential relationship with his attorney, as opposed to the Fourth Amendment issue dealt with in Sugar II and III, the facts of Sugar I form an essential backdrop to the later analysis.

The dismissal was based on the unlawful tape-recording by the arresting police officers of a privileged and confidential conversation between the defendant and his attorney while defendant was still in police custody following his arrest. State v. Sugar, 84 N.J. 1 (1980) ( Sugar I). This Court determined that the police misconduct constituted an egregious violation of defendant's constitutional right to counsel.

"The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution establish a defendant's right to the assistance of counsel in criminal prosecutions." State v. Sugar, 84 N.J. 1, 15-16, 417 A.2d 474 (1980). The right to a "thorough defense investigation is also part of the right to counsel."

The right to counsel afforded by the federal and state constitutions, however, does require that the attorney be “effective as well as available.” State v. Sugar, 84 N.J. 1, 17, 417 A.2d 474 (1980) (citing Cuyler v. Sullivan, 446 U.S. 335, 344–45, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333, 343–44 (1980); Tollett v. Henderson, 411 U.S. 258, 266–67, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973); McMann, supra, 397 U.S. at 771 n. 14, 90 S.Ct. at 1449 n. 14, 25 L.Ed.2d at 773 n. 14). A criminal defense attorney must not be hindered by conflicts of interest that could compromise his or her duty to a client; the “representation must be ‘untrammeled and unimpaired,’ [the lawyer's] loyalty undivided.”

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.

Detective William Walters and Detective John Mazzeo also heard portions of the conversations. See State v. Sugar ( Sugar I), 84 N.J. 1, 4-7 (1980); Statev. Sugar ( Sugar II), 100 N.J. 214, 220-24 (1985). The Vineland police used the information that was overheard to obtain a search warrant of Dr. Sugar's home.

Anderson, 117 N.J. Super. 507 (App.Div. 1971), modified on other grounds, 60 N.J. 437 (1972), the court held that "[a] defendant is entitled to a standard of adequacy of legal services equal to the exercise of normal customary skill and knowledge." Id. at 519; see also State v. Marrero, 155 N.J. Super. 567, 570 (App.Div. 1978) (trial counsel departed from "the accepted standard of competence demanded of attorneys in criminal cases"); cf. State v. Sugar, 84 N.J. 1, 17 (1980) (without applying standard, court notes that counsel must be "reasonably competent"). Following Strickland and Cronic, almost all ineffective assistance cases addressed by the Appellate Division have been resolved exclusively on the basis of those decisions, ignoring prior New Jersey law on the subject.

Over thirty years ago, this Court acknowledged that "[w]ithout the guiding hand of counsel, an innocent defendant may lose his freedom because he does not know how to establish his innocence[,]" and that "[t]rained counsel is also necessary to vindicate fundamental rights that receive protection from rules of procedure and exclusionary principles." State v. Sugar, 84 N.J. 1, 16 [417 A.2d 474] (1980) (citations omitted). In sum, "[t]he right to be heard [in court] would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel."