Opinion
DOCKET NO. A-0392-14T3
01-27-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE SANCHEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Sumners. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-05-0801. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant George Sanchez was charged with brutally assaulting his girlfriend, K.M. A jury acquitted defendant of several first-degree charges, but convicted defendant of the following offenses: fourth-degree false imprisonment, N.J.S.A. 2C:13-3; third-degree aggravated criminal sexual contact while the victim was physically helpless, N.J.S.A. 2C:14-3; second-degree attempted aggravated sexual assault on a helpless victim, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-2(a)(7); third-degree criminal sexual contact without the victim sustaining severe injury, N.J.S.A. 2C:14-2c(1); second-degree attempted sexual assault, N.J.S.A. 2C:14-2(c)(1); fourth-degree harassment, N.J.S.A. 2C:33-4(a); third-degree attempted aggravated assault, N.J.S.A. 2:12-1b; and third-degree terroristic threats, N.J.S.A. 2C:12-3. After merger, defendant was sentenced to an aggregate term of ten years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We use initials to protect the victim's privacy.
On this appeal, defendant raises the following issues:
I. MR. SANCHEZ'S MOTION TO SUPPRESS THE EVIDENCE AGAINST HIM WAS IMPROPERLY DENIED BECAUSE K.M. LACKED APPARENT AUTHORITY TO CONSENT TO THE SEARCH OF MR. SANCHEZ'S HOME.
II. THE TRIAL COURT DEPRIVED MR. SANCHEZ OF HIS RIGHT TO COUNSEL AFTER DENYING HIS REPEATED REQUESTS TO REMOVE HIS PRIVATE ATTORNEY FROM THE CASE AND OBTAIN A NEW ATTORNEY.
III. THIS CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT DID NOT CONSIDER MITIGATING FACTORS SUPPORTED BY THE RECORD AND BECAUSE THE SENTENCE IS EXCESSIVE. FURTHERMORE, THE JUDGMENT OF CONVICTION CONTAINS ERRORS THAT MUST BE CORRECTED.
We affirm the conviction and the ten-year NERA sentence. However, the State concedes that the judgment of conviction (JOC) must be corrected to reflect that on Count Nine, defendant was convicted of attempted sexual assault, N.J.S.A. 2C:14-2(c)(1), not attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6). Accordingly, we remand for the limited purpose of correcting that error in the JOC.
I
As background, we briefly summarize the trial evidence. The relevant events occurred on the evening of March 15, 2012 through March 16, 2012, between defendant and K.M., who was living with him at the time. According to K.M., after she received a text message from an ex-boyfriend, defendant became angry and told her to leave his house. However, as K.M. was attempting to leave, defendant grabbed her by her hair and throat and choked her until she passed out.
We will discuss the pertinent procedural history, and the evidence presented on the suppression motion, when we address the legal issues.
After K.M. regained consciousness, she spent that night at the house. She testified that defendant's assaultive behavior continued the next morning. Defendant first handcuffed K.M.'s hands and later handcuffed her from one hand to one foot. Defendant then had "forceful sex" with K.M., and at one point attempted to sodomize her with a boot. According to K.M., defendant told her he was going to kill her. Later, defendant retrieved a fork from his kitchen, covered K.M.'s face with a pillow, and instructed her to "close [her] eyes and pray for [her] soul." However, defendant did not actually assault K.M. with the fork.
K.M. testified that, after the incident with the fork, defendant left the bedroom to take a shower. While he was in the shower, K.M. used the key to the handcuffs to free herself and fled the house. From a nearby pizzeria, K.M. telephoned her former father-in-law, who picked her up and brought her to his home. After K.M. reported the assault to the police the next day, they entered defendant's house with K.M.'s consent and found incriminating evidence in the couple's bedroom, including handcuffs and a fork.
In his trial testimony, defendant denied all of K.M.'s allegations. He asserted that she tried to attack him after he called off their engagement and asked her to move out of his house.
II
On this appeal, defendant first challenges the denial of his suppression motion. There is no dispute that K.M. voluntarily signed a written consent-to-search form on March 17, 2012. However, defendant contends that K.M. did not have authority, or apparent authority, to consent to a search of his house. We disagree.
We recount the testimony from the suppression hearing in some detail, because it illuminates our legal conclusions. According to K.M., she met defendant in June 2011. They began dating, and she moved into defendant's house in Fairlawn around mid-summer 2011. K.M. testified that the couple shared a bedroom, and she had a key to the house. She testified that she rented furniture for several rooms in the house, including the living room and two bedrooms.
K.M. explained that, after she moved into the house, she obtained custody of her seven-year-old daughter and, with defendant's agreement, the daughter began living with them. K.M. registered the child in the local school system using the Fairlawn address. At defendant's behest, K.M. quit her job, and he supported her financially. She had keys to his car, which she drove regularly. K.M. also testified that the cable bill was in her name. At some point, they became engaged to be married.
In about February 2012, K.M. sent the daughter back to live with her ex-husband, because K.M. and defendant were "having a lot of altercations." On occasion, K.M. would stay with a friend for a day or two after having a fight with defendant, but at his behest, she always returned to his house. According to K.M., she never moved out of defendant's house.
She still had a key to the house on March 17, 2012, when she accompanied the police to the house for purposes of the search. However, she was unable to open the front door with her key, because defendant had locked the door with a deadbolt, for which neither of them had a key. Instead, K.M. showed the police how to enter the house through a broken side door. Once inside, the police searched the couple's bedroom. The police also allowed K.M. to pack up her clothing.
According to K.M., when the police accompanied her to the Fairlawn house, she told them that she lived there. However, K.M. testified that when she signed the consent-to-search form she listed two addresses as her home address. One was the address of the Fairlawn house. The other was an address in Paterson, which was the home of her former father-in-law. She explained that she listed the Paterson address because that was the address "for purposes of the restraining order and in case the police station wanted to get in contact with [her]."
The investigating police officer testified that K.M. told the police she lived at the Fairlawn house. The officer also observed that K.M. had a key to the house, and that "the key worked" in the lock. However, the front door could not be opened with the key because it was dead-bolted shut. K.M. told the police that there was no key for the deadbolt. At K.M.'s direction, the police entered through a broken side door. Once inside, the police were able to release the deadbolt on the front door.
In his testimony at the suppression hearing, defendant agreed that K.M. moved in with him shortly after they met. He testified that they obtained furniture together, and that they agreed K.M. should quit her job. He also conceded that K.M. had a key to the house, and drove his car. He testified that, with his active cooperation, K.M. arranged for her daughter to move in with them and registered the child for school using their address. He agreed that he and K.M. were engaged to be married.
However, defendant claimed that they decided to break off their relationship shortly before K.M. made her complaint to the police. He asserted that he took possession of her house key and her car key. He testified that K.M. later falsely accused him of assaulting her because he would not let her back into the house to pack up her clothing.
In an oral opinion rendered immediately after the hearing, the trial judge found that the parties largely agreed on the relevant facts. However, to the extent their versions differed, he found K.M.'s version credible. The judge found that at the time K.M. consented to the search, she was living at the house as a co-inhabitant and the premises were her home. Therefore, she had a legal right to consent to the search. The judge also found that the police had "a reasonable basis to believe" that K.M. was still living at the house and that she had authority to consent to a search.
On this appeal, we defer to the judge's factual findings so long as they are supported by substantial credible evidence. State v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 224, 243 (2007). We owe particular deference to the judge's evaluation of witness credibility. Gamble, supra, 218 N.J. at 424-25. However, we review the judge's legal conclusions de novo. Id. at 425 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
After reviewing the record, we find no basis to second-guess the judge's decision to credit K.M.'s testimony. We conclude that the judge's factual findings are supported by substantial credible evidence and, in light of the facts as the judge found them to be, his legal conclusions are unassailable. We affirm substantially for the reasons stated in his oral opinion. Defendant's arguments on this point rest heavily on his conflicting version of events, which the judge did not find credible. His arguments do not warrant further discussion beyond these brief comments. R. 2:11-3(e)(2).
We agree with the judge that, at the time K.M. consented to the search, she was a co-inhabitant of the house and was authorized to consent to the search. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974); State v. Suazo, 133 N.J. 315, 320-21 (1993); State v. Miller, 159 N.J. Super. 552, 557-59 (App Div.), certif. denied, 78 N.J. 329 (1978). Moreover, based on what K.M. told the police, and what they observed first-hand, the police had an objectively reasonable basis to believe that K.M. had authority to consent to the search. See State v. Coles, 218 N.J. 322, 341 (2014) (reaffirming that the standard is "objective reasonableness based on an assessment of the totality of the circumstances."). Accordingly, we affirm the denial of defendant's suppression motion.
III
Next, we address defendant's argument that the court should have granted his private attorney's motion to be relieved as counsel and should have given defendant additional time to retain another attorney.
We summarize the procedural history to put our legal analysis in context. Defendant was indicted on May 23, 2012. On June 14, 2012, the first judge to handle the case held a bail hearing at which defendant was represented by Benjamin Morton, a private attorney. Morton told the judge that his client was previously represented by "the Public Defender" but that Morton had "recently" been retained to represent him. Morton then argued a motion to reduce bail, which the first judge denied.
Morton continued to represent defendant through various additional pre-trial proceedings, including a pretrial conference on September 24, 2012. Those pre-trial proceedings were held before a second judge (the pre-trial judge). At that conference, the judge extended the plea cut-off date to mid-October. She also rescheduled the case for another conference on October 18, 2012, and told Morton and defendant, who was present, that the case would receive "a quick trial date" because defendant was incarcerated.
Morton next appeared with defendant at a bail source hearing on January 29, 2013. At that hearing, a bail bondsman testified that he was prepared to issue a bond for defendant, based on his understanding that defendant was about to settle a personal injury lawsuit in which Morton and another attorney represented him. The pre-trial judge rejected the proposed bail arrangement but gave the defense an opportunity to submit additional information. She also reminded Morton and defendant that the trial was scheduled to begin on April 1, 2013 and "I'm not adjourning it, especially since this is . . . a jail case."
However, the April 1 trial date was adjourned and rescheduled for June 10, 2013, apparently to accommodate a possible change of defense counsel. On or about April 15, 2013, Morton filed a motion to withdraw as counsel. The motion was not supported by a certification, but the notice of motion asserted that "the attorney/client relationship is such that it is in the Defendant's best interest, as agreed to by both the Defendant and counsel, to retain new counsel or seek application with the Bergen County Public Defender's office." The notice of motion also stated that the previous week, Morton had received a call from another private attorney advising that his firm was "retained by Mr. Sanchez to handle his criminal matter," but that attorney had not yet sent Morton a substitution of counsel.
On May 8, 2013, the pre-trial judge signed an order reciting that "this matter" had been brought before the court "by Robert M. Kalisch, Esq. attorney for the defendant" and ordering Morton to turn over his file to Kalisch and the Office of the Public Defender. No such application by Kalisch appears in either party's appendix. Defendant's appendix does contain a "notice and substitution of counsel" dated May 9, 2013, signed by Morton, indicating that his client was substituting Kalisch, a Public Defender attorney, as his attorney of record. However, Kalisch did not sign the consent to substitution, which appears on the next page of the document. Morton signed a certification dated May 9, 2013 indicating that he faxed the substitution of counsel form to Kalisch on that date.
Based on those documents, and the transcript of a May 13, 2013 status conference, we infer that the May 8 order was either signed in error, or it was intended to allow Kalisch to review the file prior to commenting on Morton's motion.
At the May 13 conference, at which defendant, Morton and Kalisch were present, the pre-trial judge addressed defendant about the status of his legal representation, to allay any "confusion" he might have:
It was my understanding from speaking to counsel that you were going to hire a new attorney. You were going to hire, retain, pay for an attorney and I said that that was fine, that if you wanted to retain a new attorney and pay for a new attorney because Mr. Morton is a private attorney. He's not working as a pool attorney on this case. And I said that that would be fine as long as you procured an attorney by your trial date of June 10 and that the new attorney would be ready, willing and able to complete the trial.
The judge then expressed her surprise that defendant had, instead, applied to the Office of the Public Defender (OPD) for representation. She told defendant that the OPD "will not provide counsel when there is a paid attorney in the case." She advised defendant that Morton would be required to continue to represent him. At that point, defendant explained that he could not afford to pay Morton: "I was depending on getting a settlement to be able to pay him. The settlement didn't go through." The judge responded, essentially, that that was now Morton's problem; at that late date in the case he could not withdraw, and he was still required to represent defendant at the trial. Defendant did not respond or express any dissatisfaction with Morton's legal services.
We infer the judge was trying to explain that if a defendant could afford private counsel, he was not entitled to OPD representation.
Morton then told the judge that he had spoken to the OPD supervisor "last week" and that the OPD was willing to "take over the case" and would assign Kalisch to handle it. At that point, Kalisch told the judge that he was present during Morton's conversation with his OPD supervisor, and some clarification was in order. Kalisch told the judge that the OPD was "ready to take over the case, but . . . not try it on June 10th. If I'm going to try this case I'll try Mr. Sanchez's case in the year 2014. That's when I'm available. And the earliest . . . we could have an attorney ready to do this case would be sometime in the September term."
The judge responded that "I did tell Mr. Sanchez that if he got a new attorney he would have to be ready by June 10." However, she also noted that there was a previously-scheduled trial that might not be completed by June 10, thus giving defendant's counsel "a little more time." She further stated that "there is no substitution of attorney in this file. . . . That's why I had this listed again for today. . . . If a new attorney were to handle the case they would have to be ready right now in June and they're not going to be ready. That was the condition of letting Mr. Morton out but that hasn't happened. So we'll see you here on June 10 and I'll be able to give you a better idea what day you're going to be starting." As previously noted, at this hearing defendant did not indicate any dissatisfaction with Morton's representation, but only expressed concern about his ability to pay Morton.
However, a couple of weeks later, defendant sent two letters to the Assignment Judge, stating that in an April 3, 2013 telephone conversation between Morton, a bail bondsman, and defendant, who was in the jail, Morton had threatened not to diligently represent defendant, because he was not getting paid. Defendant gave the specific time of day that the conversation occurred, and urgently requested that the judge listen to the jail's tape of the conversation. Defendant also complained that Morton was not communicating with him or representing him properly. The Assignment Judge referred the letters to the pre-trial judge.
The pre-trial judge held a hearing on June 12, 2013, at which defendant was present, together with an attorney who was standing in for Morton, who was ill that day. The judge advised defendant that Morton was unavailable that day and the following Monday, but that the trial would start "on Tuesday." The judge also stated that she had obtained the jail's recording of the telephone conversation referenced in defendant's letter to the Assignment Judge, to determine whether Morton had in fact made any threats or other improper statements to defendant.
The judge recited for the record that, in the phone call, Morton explained to defendant that he had an ethical obligation to continue to represent defendant, regardless of payment, and he made no improper statements. She specifically found that the recording did not support defendant's allegations:
There's nothing in that phone call that rises to the level of any type of improper conduct. . . . I'm not going to give the details because obviously it's protected under attorney/client privilege, but I had a duty
to review it because of the fact that I wanted to assess whether or not there was any misconduct, which is what you were alleging in your letter, that he was coercing you, that he was threatening you. . . . And that he was going to throw the case or influence the case[,] [s]o it goes against you. There is none of that in the phone call at all, none of the accusations that you put in your letter.
. . . .
[Morton] was hoping to get paid just the way we were discussing at the bail hearing, through the lawsuit that you had, but that never panned out. There's nothing in that phone call that would indicate to me that he was acting improper in any way. He's just doing his job.
He even says at one point in the conversation, and he also said it in court here the other day in open court, that's why I'm going to [say] it because he actually said it in open court, was that he understands he's going to have to stay in the case and he had [to] do the best job he can for you because he knows he's ethically bound to do so.
I reviewed everything to make sure that your rights were protected and they are protected. And you have an attorney who is going to represent you.
The trial began on June 19, 2013, before the first judge (trial judge) who had heard the June 14, 2012 bail hearing. The trial proceeded without any incident relative to defendant's representation. Defendant was acquitted of the most serious charges, including first-degree kidnapping and first-degree aggravated sexual assault, although he was convicted of the lesser charges noted at the beginning of this opinion.
After the trial, the trial judge adjourned the sentencing several times to accommodate defendant's expressed wish to retain a new attorney. At a hearing on January 31, 2014, defendant expressed his dissatisfaction with Morton's conduct of the trial, stated that he had a poor working relationship with Morton, and told the trial judge that he had filed an ethics complaint against Morton. The trial judge told defendant that, based on his own observation of the trial,
[Y]ou were extremely . . . cooperative with Mr. Morton during trial. I think you never protested during the trial. I think Mr. Morton did an excellent job at the trial.
. . . .
. . . I adjourned this matter [sentencing] at counsel's request, both counsel. I believe some other attorneys had reached out to the prosecutor . . . this matter has been pending since July. It's now February. It's been adjourned repeatedly. I know you keep submitting things, but you did not retain another attorney and . . . [w]e have to move forward with sentencing . . . .
However, after defendant told the judge that he intended to have a specific attorney, Mr. Bar-Nadav, take over the case, the judge adjourned the sentencing for two weeks to give Mr. Bar-Nadav an opportunity to "submit a letter to this Court that he's now representing you as to the sentence if that's who you're saying you're going to hire." Defendant assured the judge that he was going to retain Mr. Bar-Nadav "right away." The judge put defendant on notice that, unless the court received a representation letter from the new attorney, "we're going to proceed with the sentencing in two weeks."
The sentencing hearing did not take place until March 7, 2014, at which time defendant still had not retained new counsel. After considering defendant's multiple prior representations that he was going to get a new attorney, and the multiple adjournments the court had already granted, the trial judge declined to adjourn the post-trial acquittal motion and the sentencing yet again. Accordingly, the judge heard the motion, including a pro se argument from defendant which included a litany of complaints about Morton.
Prior to the sentencing, Morton read into the record a letter from defendant to the Ethics Committee withdrawing his complaint:
[Defendant] wrote this letter directly after the trial. It was to a Mr. [sic] Remson. And it says, "The legal letter is to inform the committee that I wish not to move forward with the grievance against Mr. Benjamin Morton, Esquire. I was moved by his motions during trial and didn't realize that Mr. Benjamin Morton is a very competent attorney. I do not wish to move forward with the action against Mr. Morton. Please consider my decision, and respect it."Morton also noted for the record that during the trial, he and defendant had "stood united." He further stated that although he had filed a motion to be relieved as counsel pre-trial, he had zealously represented defendant when the motion was denied:
[A]t the end of the day, I wound up representing Mr. Sanchez pro bono. And I have no problem with that that. I understand my legal duty as an officer of the court. . . . Not only did I represent him pro bono, my office bought the clothes that he wore to trial. So, I want the record clear, that I put all my resources and everything that I had to represent him to the best of my ability.
Defendant now argues that he was deprived of his right to counsel of his choosing, in violation of his Sixth Amendment right to counsel. U.S. Const. amend VI, N.J. Const. art. I, ¶ 10. On this record, we cannot agree. We conclude that the pre-trial judge and the trial judge properly addressed the applications that were before them, based on the record presented on each application.
The first motion was Morton's application to withdraw as counsel, which was made after the case had been scheduled for trial. The motion was not premised on any alleged dissatisfaction defendant had with Morton's services, but rather was based on defendant's inability to pay Morton's fee. Because defendant had long since entered a plea in the case, Morton needed the court's approval for his motion. R. 1:11-2. Such motions are permissible, RPC 1:16(b)(5), and may be granted in the court's discretion, but there is "a presumption against granting a request to withdraw." State v. Johnson, 274 N.J. Super. 137, 147 (App. Div.) (citing State v. Biegenwald, 126 N.J. 1,21 (1991)), certif. denied, 138 N.J. 265 (1994).
The Supreme Court succinctly described the relevant concerns the trial court should consider in evaluating such motions:
The impact of the amount of accumulating fees and an attorney's potential ability to collect should be considered in deciding a motion to withdraw or be relieved as counsel. On the other hand, the more time and effort an attorney puts into a case, and the closer the matter is to trial, the more prejudicial it is for the client if counsel is relieved. An attorney should not accept a retainer if he or she believes it cannot be paid if the matter progresses as expected, or merely to do some work and then seek to abandon the case. See State v. Johnson, 274 N.J. Super. 137, 147-48 (App. Div.), certif. denied, 138 N.J. 265 (1994) ("When deciding whether to permit withdrawal, the trial court must balance its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice against the attorney's reasons for requesting withdrawal."). See also Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967) ("The granting of leave by the court is generally in the discretion of the court and depends upon such considerations as proximity of the trial date and possibility for the client to obtain other representation."). The trial judge must balance these factors in
considering a motion by counsel seeking to be relieved or withdraw from the case.
[In re Simon, 206 N.J. 306, 320 n.8 (2011).]
Given the record that was before the pre-trial judge at the time, we find no abuse of her discretion in denying Morton's motion. As the judge had previously observed, defendant was incarcerated pre-trial, and therefore it was important that his case be tried in a timely manner. The trial had been scheduled for April 1 and then rescheduled for June 10, to accommodate Morton's motion. As of the May 13, 2013 hearing, defendant had not retained another private attorney, and the OPD attorney told the judge he could not handle the trial until "2014."
Morton had apparently agreed to represent defendant in the expectation that his fee would be paid from the proceeds of a lawsuit settlement. Unfortunately, the settlement never materialized. As previously noted, at the May 13 proceeding, defendant did not express any concern beyond his inability to pay Morton's fee. In light of the impending trial, which had already been adjourned once before, we find no abuse of discretion in the judge's decision that Morton could not withdraw as counsel at that late date. See Simon, supra, 206 N.J. at 320 n.8; Johnson, supra, 274 N.J. Super. at 147-48.
The next hearing took place after defendant sent the Assignment Judge two letters, both dated May 24, 2013, expressing dissatisfaction with Morton's representation. The Assignment Judge chose to treat the second letter as a motion for reconsideration of the pre-trial judge's earlier decision, and referred the matter to the pre-trial judge. While defendant complained that Morton had not communicated with him and did not provide him with discovery, the central theme of defendant's letters was that Morton had threatened to do a poor job of representing him, due to non-payment of fees.
Accordingly, and in response to defendant's urgent plea, the pre-trial judge obtained and listened to the tape of the specific conversation recorded by the jail. As she described on the record, the recording did not support defendant's accusations against Morton. The judge declined the application to adjourn the trial yet again, to accommodate what appeared to be a baseless complaint about Morton.
We infer from the record that the Bergen County Jail records all inmate telephone calls and maintains those recordings. It does not appear that the recording in question was marked as a court exhibit, although the judge described the pertinent content on the record after listening to it in camera. Defendant neither provided us with a transcript of the recording nor advised us that it was unavailable. However, on this appeal, defendant does not question the accuracy of the judge's description of the recording. --------
[T]he right to retain counsel of one's own choice is not absolute, and "cannot be
insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same."
A defendant desiring to exercise the right to choose his own counsel must do so with reasonable diligence. . . . The public has a strong interest in the prompt and effective operation of its judicial institutions. A trial court therefore must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant. Consequently, when a defendant fails to act expeditiously in obtaining counsel of his own choice, the trial court must have the power to "do what is reasonably necessary to meet the situation." . . . The procedure that may generally be employed where defendant seeks to change counsel is to allow a reasonable adjournment to permit the defendant to retain counsel of his own choice. The granting of a continuance necessarily rests within the sound discretion of the trial court. . . .
[State v. Furguson, 198 N.J. Super. 395, 401-02 (App. Div.), certif. denied, 101 N.J. 266 (1985) (citations omitted).]
"A defendant may substitute counsel for good cause. . . ." State v. Ortisi, 308 N.J. Super. 573, 588 (App. Div.), certif. denied, 156 N.J. 383 (1998). However, a defendant does not have the right to manipulate the system, and delay his trial, by making misrepresentations to the court about his attorney's alleged misconduct. See Furguson, supra, 198 N.J. Super. at 401.
Relying on State v. Kates, 216 N.J. 393 (2014), defendant contends that he is entitled to a new trial because the pre-trial judge did not explicitly consider all of the appropriate factors in deciding Morton's motion or defendant's reconsideration motion. Kates reaffirmed that in deciding a defendant's motion for an adjournment for the purpose of retaining new counsel, the court should consider "various factors outlined" in Furguson. Id. at 396 (citing Furguson, supra, 198 N.J. Super. at 402; United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)). The relevant factors include:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case[.]
[Id. at 396 (quoting Furguson, supra, 198 N.J. Super. at 402).]
In Kates, the defendant learned, just before the trial commenced, that his OPD attorney planned to start the trial but then hand the representation over, mid-trial, to a second-chair attorney, due to the principal attorney's impending military service. Alarmed, defendant sought an adjournment to retain private counsel. The trial judge denied the application summarily, without explanation. The Appellate Division held that was structural error, warranting a new trial. State v. Kates, 426 N.J. Super. 32, 51-53 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).
In affirming, the Supreme Court confirmed that an unreasonable denial of the right to choose new counsel constitutes "structural error" warranting reversal of a conviction. However, the Court emphasized that trial courts do not need to conduct "a lengthy factual inquiry[.]" Kates, supra, 216 N.J. at 397. Thus "only if a trial court summarily denies an adjournment to retain private counsel without considering the relevant factors, or abuses its discretion in the way it analyzes those factors, can a deprivation of the right to choice of counsel be found." Ibid.
In this case, the pre-trial judge did not specifically reference the Furguson/Burton factors in her analysis, but we conclude that, under the circumstances, she actually considered the factors most pertinent to defendant's application. In particular, the judge had already adjourned the trial once before to give defendant a chance to retain new counsel, but he had not done so. Competent counsel was available to represent defendant, and the judge had made clear that Morton would be required to represent defendant without further payment. And, most significantly, defendant's accusations against Morton were demonstrably false. Those were sufficient grounds to support the exercise of the judge's discretion in denying the application.
Defendant also argues that the trial judge should have adjourned the sentencing to allow him to retain new counsel. Clearly, even if the trial judge erred in deciding that application, such an error would not warrant a new trial but only a new sentencing hearing. However, we find no abuse of the trial judge's discretion in declining to put off the sentencing once again, after giving defendant several adjournments during which defendant never followed through on his asserted desire to hire new counsel. See Furguson, supra, 198 N.J. Super. at 406-07.
IV
Finally, defendant contends that his sentence is excessive because the judge should have considered that defendant "neither caused nor intended to cause serious harm." His contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the ten-year NERA sentence.
However, with the State's consent, we remand for the limited purpose of correcting a typographical error in the JOC, as previously noted.
Affirmed in part, remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION