Monday, April 11, 2016

Conviction reversed where defendant denied adjournment and not full discovery State v Lawrence

Conviction reversed where defendant denied adjournment and not full discovery State v Lawrence
April 8, 2016 
Submitted February 8, 2016 - Decided 
Before Judges Lihotz, Fasciale and Higbee. 
Defendant Gail Lawrence appeals from her conviction of various motor vehicle offenses, arising from incidents occurring in May and June of 2010, following a trial de novo before the Law Division. Seeking a new trial, she asserts the municipal court judge, over her objection, erroneously proceeded to trial, A-3194-11T4 2 

ignoring claims the State had not complied with its discovery obligations and her request for counsel. Specifically, in the trial de novo, defendant asserted the State improperly withheld evidence including audio and video recordings from the police officer's dashboard cameras and maintained she was deprived her right to counsel under State v. Slattery, 239 N.J. Super. 534 (App. Div. 1990). The judge did not address the discovery challenge, concluded defendant was not denied her right to counsel, and found her guilty of all charges. 
On appeal, defendant argues: 
1.1 The Transcript shows that the July 20, 2011 Proceeding was Non-Adversarial, and that its Ex-Parte Flavor was more Akin to a Grand Jury Presentment than a Trial. 
1.2 Docket Management Cannot Trump the Right to Counsel, thus, after Receiving Defense Counsel's "Resignation" the Trial Court Should have Inquired as to Whether [Defendant] Intended to Waive her Right to Counsel. 
2.1 The Trial Court's Admonition did not Satisfy the Second Prong of this Court's Holding in State v. Slattery. A-3194-11T4 3 

2.2 If a Defendant Has No Right to Change Her Mind About Waiving the Right to Counsel Prior to the Date of Trial, then the Second and Third Prongs of Slattery have no Meaning or Effect. 
2.3 By Refusing to Provide Discovery and Disclose Brady Material, the Trial Court Deprived [Defendant] of Her Right to a Fair and Impartial Proceeding. 
We reverse and remand for a new trial in the municipal court, before a different municipal court judge. 
These facts are found in the record. On May 3 and June 9, 2010, the Palisades Interstate Parkway Police Department (PIPPD) issued defendant sixteen complaint-summonses for various traffic and driver credential violations, as well as disorderly persons offenses. Although the record is very muddled and conflates this matter with a separate matter also under separate appeal, defendant's case was adjourned several times over a lengthy period. The record does not contain transcripts of all municipal court proceedings or explain who advanced each adjournment request. 
The record does contain a portion of a transcript from May 4, 2011, during which defendant sought an adjournment to visit her elderly, ill father in Israel. The judge also explained the A-3194-11T4 4 

charges against her were "fairly serious" and suggested defendant secure counsel. She responded she wanted to represent herself. The judge explained defendant had an absolute right to represent herself, but stated "it was a bad idea" and emphasized she faced a possible jail term of six months. Defendant affirmed she had decided to represent herself and declined to apply for a public defender. The State also admitted it must fulfill its obligations to provide discovery. 
In early June 2011, defendant secured counsel, who submitted a formal letter of representation and a written discovery request to the State. The municipal prosecutor responded by sending what appears to be a form letter dated June 30, 2011. The letter does not identify what discovery is enclosed or what will be provided under separate cover, except to state copies of the mobile and video recordings (MVR) were separately mailed. Trial was scheduled for July 20, 2011. 
Before trial, counsel wrote to the municipal court judge withdrawing his representation. Counsel neither filed a motion nor obtained an order allowing him to be relieved. Defendant wrote to the municipal prosecutor on July 10, 2011, stating: 
The presiding judge has allowed me to represent myself in the proceedings. Since that time I have obtained counsel, however, he later withdrew from the case. Therefore, I will now be representing myself in these proceedings. In the event that I later A-3194-11T4 5 

procure alternative counsel, it does not negate this present request [for discovery]. 
On the scheduled trial date, defendant appeared and informed the court her attorney had withdrawn. She further explained she requested discovery, which was not provided. It is not clear what discovery was sent to her former attorney or whether counsel gave defendant the discovery he received. In response, the judge stated: 
So he doesn't get to resign. He doesn't get to just bow out of the case the night before the trial or a couple of days before the trial. 
So either you get him on the phone or get him here or you're going to have to try the case by yourself. But I'm not going to adjourn it. Because as far as I'm concerned, he's still in the case. I'm satisfied that all the discovery was sent to him per his request. And this case has been adjourned eight times . . . . It's just not going off. 
May 3[,] 2010, it's time to face the consequences. So I'm going to enter a not guilty plea. And I'm going to deny your request for an adjournment and for further discovery. 
Defendant repeated her request for discovery, sought but not supplied by the State. The judge then responded: 
There's procedure that has to be followed. And one of them is retaining an attorney. You did that. That discovery was sent to your attorney. I'm satisfied that that satisfies the State's obligation. I'm not satisfied that your attorney had the right to A-3194-11T4 6 

walk out and assume that he didn't have to be here today. That's his problem and your problem on for a special trial. 
You've got like about 40 charges against you. The oldest one is a year and two or three-months-old. I note on the calendar there are eight adjournments. It's time to face the music and hear the trials. 
Defendant then was asked to enter her pleas to each charge, to which she pled "not guilty" to all of them. Defendant then requested to contact her attorney, presumably pursuant to the judge's prior instruction. The judge denied the request, stating: 
THE COURT: It's not going to do – why, so he's going to come here now and we're going to wait for two hours? No, the attorney should have been called before and told to be here today. He's, he's got to know that. You can sue him for malpractice for not being here. 
DEFENDANT: But I also – 
THE COURT: No attorney has the right to walk out mid-trial – or just before the trial date. So – 
DEFENDANT: Sir, I'm – 
THE COURT: Have a seat. Call your first witness [prosecutor]. 
DEFENDANT: Sir, Sir, - 
PROSECUTOR: Okay. Officer – 
DEFENDANT: - I do not want to have the trial today. It's not – I did – A-3194-11T4 7 

THE COURT: I know you don't. You don't want . . . to be tried for a year and a half. Just have a seat. 
Trial proceeded with the State's witnesses. Defendant repeated her objections to conducting trial under the circumstances, which were overruled. 
The officer who issued the May 3, 2010 summonses testified to many of defendant's traffic infractions, which were recorded on "audio and video"; however, no recordings were produced at trial. Defendant renewed her motion for discovery. When asked if she had any questions for the officer, defendant replied she was "objecting to the whole trial." The judge asked whether she wanted to call any witnesses or testify and defendant declined stating: "It's not a fair trial, sir. I'm not going to say anything." 
The judge found defendant guilty of three counts of speeding and two counts of weaving as prohibited by municipal ordinances; three counts of careless driving, N.J.S.A. 39:4-97; failure to keep right, N.J.S.A. 39:4-82; and using a cell phone while driving, N.J.S.A. 39:4-97.3. The judge imposed consecutive sixty and ninety-day license suspensions and assessed fines and penalties. 
Immediately thereafter, trial on the June 9, 2010 summonses was held. The judge reiterated defense counsel recently A-3194-11T4 8 

withdrew, without court approval. He denied defendant's request for an adjournment because the trial date had been set "well in advance," and the court was satisfied all the discovery was provided to defendant's counsel. The State's witness testified and defendant declined to cross-examine the officer, stating: "I'm just objecting to everything because I'm asking for adjournment to retain counsel. And you can do whatever you want to do, but it's not fair." When informed of her right to call witnesses, defendant responded she needed additional discovery. 
The judge found defendant guilty of speeding in violation of a municipal ordinance; failure to keep right, N.J.S.A. 39:4-82; using a cellular telephone while driving, N.J.S.A. 29:4-97.3; following too closely, N.J.S.A. 39:4-89; and careless driving, N.J.S.A. 39:4-97. Fines and penalties were imposed and her license was suspended for ninety days. 
According to the State's brief, defendant filed a timely notice of appeal to the Law Division, a copy of which is not in the record. Trial de novo review was held on January 23, 2012, and defendant was represented by counsel, who addressed whether she was improperly denied her right to an attorney and whether discovery was withheld. Counsel explained certain discovery requests, never considered by the municipal court judge, were necessary to show defendant was being targeted because she ended A-3194-11T4 9 

an intimate relationship with a fellow PIPPD officer. She maintained her ex-lover arranged for her to be stopped every time she drove on the Palisades Parkway, conduct for which he and others were disciplined. Defendant also sought the MVR videotapes, which purportedly were released, yet at some later point, the State admitted the MVR videotapes "were lost." 
The Law Division judge never considered the discovery challenges. Regarding defendant's constitutional challenge, he found no flaw with the municipal court judge's decision to proceed with the trial in defendant's counsel's absence,1 stating "counter-veiling [sic] equities are that if you're coming to court for eight sessions . . . . [s]ometimes you have to get your ducks in a row." Without elaborating, the judge found defendant made a "deliberate attempt to continue to stall this matter" and stated delay can lead to witnesses being lost. The 
1 Before the Law Division, the State and the judge applied the following three-part test we articulated in Slattery, supra, 239 N.J. Super. at 549-50, to aid consideration of whether a defendant adequately waives the right to counsel: 
(1) A non-indigent defendant must be afforded a reasonable opportunity to obtain an attorney of his choice. . . . (2) Before a defendant is forced to go to trial without counsel, he must be fully advised of the consequences. . . . (3) Prior to the peremptory trial date, a hearing should be conducted at which the defendant will be called upon to decide what course he wishes to follow. A-3194-11T4 10 

Law Division judge again found defendant guilty and imposed the same penalties as the municipal court judge. This appeal ensued. 
In our review, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)); see also R. 3:23-8(a)(2) (noting the Law Division's review is de novo on the record). "We are limited to determining whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), aff'd, 219 N.J. 584 (2014); see also State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010) ("Where a municipal court judgment has been appealed to Superior Court, we ordinarily review the Law Division judgment under a sufficiency of the evidence standard."). We review legal determinations de novo. State v. Pomianek, 221 N.J. 66, 80 (2015); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). 
We first review defendant's assertion she was denied her right to counsel. The State concedes "certainly this defendant had a right to counsel." See State v. Vanriper, 250 N.J. Super. A-3194-11T4 11 

451, 457 (App. Div. 1991) ("Even in the context of the minor traffic violation charged, defendant had the right to retain an attorney if he chose to do so."); State v. Hermanns, 278 N.J. Super. 19, 22 (App. Div. 1994); R. 7:3-2(b). However, the State urges the Law Division properly concluded defendant knowingly and intelligently waived this right. Following our review of the record, we cannot conclude the Law Division judge fulfilled his obligations to undertake this required detailed analysis. 
United States Supreme Court jurisprudence has solidified the principle that a non-indigent defendant's Sixth Amendment right to counsel encompasses the right to be represented by the counsel of his or her choosing because the Sixth Amendment "commands . . . the accused be defended by the counsel he [or she] believes to be best." United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409, 418 (2006). New Jersey's Constitution equally recognizes this fundamental right to obtain counsel of his or her choosing. N.J. Const. art. I, ¶ 10; State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014). Thus, 
[w]here the right to be assisted by counsel of one's choice is wrongly denied . . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants . . . . A-3194-11T4 12 

[Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct. at 2563, 165 L. Ed. 2d at 419.] 
Equally clear is a defendant may waive the right to counsel and proceed pro se. State v. Harris, 384 N.J. Super. 29, 57 (App. Div.), certif. denied, 188 N.J. 357 (2006). However, this "is not absolute" and "[a] defendant must 'voluntarily and intelligently' elect to conduct his [or her] own defense." Ibid. (quoting Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161-62, 120 S. Ct. 684, 691, 145 L. Ed. 2d 597, 607 (2000)). "Given the corollary loss of a defendant's right to counsel, 'the courts indulge [in] every reasonable presumption against the waiver of this constitutional right [to counsel.]'" Id. at 58 (alterations in original) (quoting State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994)). 
Consideration of this issue requires a fact sensitive inquiry. See Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 385 (1981). The New Jersey Supreme Court has delineated these areas of inquiry, which a trial judge must explore when determining whether a defendant has knowingly and voluntarily waived the right to counsel: 
The defendant should be advised of the: (1) dangers and disadvantages of self-representation; (2) nature of the charges against him [or her], the statutory defenses A-3194-11T4 13 

to those charges, and the possible range of punishment; (3) technical problems he [or she] may encounter in acting as his [or her] own counsel and of the risks he [or she] takes if the defense is unsuccessful; (4) necessity that he [or she] conduct his [or her] defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of the law may impair his ability to defend himself [or herself], and that his [or her] dual role as attorney and accused might hamper the effectiveness of his defense; and (5) difficulties in acting as his [or her] own counsel and the court should specifically advise the defendant that it would be unwise not to accept the assistance of counsel. 
[State v. Ortisi, 308 N.J. Super. 573, 587-88 (App. Div.) (citing State v. Crisafi, 128 N.J. 499, 510-12 (1992)), certif. denied, 156 N.J. 383 (1998).] 
See also State v. Wiggins, 291 N.J. Super. 441, 451 (App. Div.), certif. denied, 146 N.J. 568 (1996) (holding waiver of right to counsel invalid because court made no attempt "to determine whether defendant understood the implications of waiving his right to an attorney"); State v. Thomas, 362 N.J. Super. 229, 236 (App. Div.) ("The judge must therefore consider the nature of the charges, including their seriousness and the complexity of the anticipated trial evidence and issues, as well as the background, demonstrated demeanor and goals of the defendant."), certif. denied, 178 N.J. 249 (2003). "[T]he ultimate focus must be on the defendant's actual understanding of the waiver of A-3194-11T4 14 

counsel," not just the judge's strict compliance with the requirements. Crisafi, supra, 128 N.J. at 512. 
The determination also must balance administrative considerations. "[O]ur Supreme Court has underscored 'the trial court must strike a balance between its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, on the one hand, and the defendant's constitutional right to obtain counsel of his own choice, on the other.'" State v. Martinez, 440 N.J. Super. 537, 544 (App. Div. 2015) (quoting State v. Hayes, 205 N.J. 522, 538 (2011)). Of concern is 
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. 
[Hayes, supra, 205 N.J. at 538 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985)).] A-3194-11T4 15 

"If a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." Martinez, supra, 440 N.J. Super. at 545 (quoting State v. Kates, 216 N.J. 393, 396-97 (2014)). The absence of such an "analysis results in a one-sided and, consequently, arbitrary determination." Ibid. 
Our court rule, addressed to the waiver of counsel in municipal proceedings, embodies these principles, stating: 
In all cases other than parking cases, a request by a defendant to proceed to trial without an attorney shall not be granted until the judge is satisfied from an inquiry on the record that the defendant has knowingly and voluntarily waived the right to counsel following an explanation by the judge of the range of penal consequences and an advisement that the defendant may have defenses and that there are dangers and disadvantages inherent in defending oneself. 
[R. 7:8-10.] 
First, the municipal court record provided no information regarding prior adjournments, such as why they were granted and at whose request. The May 4, 2011 hearing record reflects, almost one year following issuance of the first set of summonses, the State had not provided discovery and defendant A-3194-11T4 16 

was leaving the country. Otherwise, the assumption defendant was responsible for the delay is unsupported. 
Second, we cannot find support for the finding defendant's conduct was purposely dilatory. Following the May 4, 2011 hearing, where the judge related some information regarding the effect of proceeding self-represented, she hired counsel, who submitted a June 10, 2011 letter informing of his representation and again pursuing discovery, which the State apparently had still not released. Having hired counsel, the record also makes clear counsel failed to fulfill his obligations to defendant by withdrawing from representation without the appropriate motion. The Law Division judge ignored the circumstances where the municipal court judge told defendant to get her attorney "on the phone or get him here or you're going to have to try the case by yourself" and then refused to allow her to comply with this directive to contact counsel.2 At the very least, the obligation to contact counsel to determine the circumstances of withdrawal or availability to proceed was required. 
2 There are many inappropriate comments made by the municipal court judge that are concerning. Of note, after suggesting counsel should have appeared, we consider the statement telling defendant: "You can sue him for malpractice" as a serious lapse in judgment. 
In this regard, we do not understand the Law Division judge's comments "I mean we all know, when you hire an attorney A-3194-11T4 17 

you have to both hire and pay that attorney." The record does not include information that counsel's failure to appear was the result of defendant's non-payment. Moreover, the Law Division judge confirmed this fact stating, "Why [trial counsel] wasn't there [at trial], I have no idea." 
Third, the May 4 discussion regarding the effect of proceeding as a self-represented litigant was extremely limited. We recognize defendant's comments at this hearing suggest the issue had been raised on a prior occasion; however, that transcript was not presented. Considering only the information imparted on May 4, 2011, we cannot ignore defendant hired counsel, evincing a desire not to proceed without representation. Also, her thwarted attempt to contact counsel on the day of trial supports her desire to have legal representation, not to waive it. 
Fourth, during the trial de novo, the judge's finding of "a deliberate attempt to stall this matter" is not supported. At that time, the State proposed the record contained an unidentified individual's statement that defendant was smiling, which demonstrates she acted willfully in delaying the proceedings. Reliance on this statement plucked from the record without more information regarding the context of the assertion or the person making the statement is erroneous. A-3194-11T4 18 

Finally, the unfounded mention of countervailing equities is insufficient to outweigh defendant's right to be represented. The State offered no proof of prejudice or disadvantage. Further, as previously noted, no support shows delay was attributed solely to defendant. 
The failure to receive adequate advice concerning one's right to counsel warrants a new trial. State v. Gonzalez, 114 N.J. 592, 595 (1989) (remanding the matter "to the municipal court for a new trial" because it was "undisputed that defendant received inadequate advice of his right to counsel."); State v. Hishmeh, 266 N.J. Super. 162, 168 (App. Div. 1993); R. 7:8-10. Indeed, the deprivation of the right to counsel before the municipal court is not cured by representation during trial de novo. State v. Abbondanzo, 201 N.J. Super. 181, 185 n.1 (App. Div. 1985) (citing State v. Sugar, 84 N.J. 1, 16 (1980)). 
We also conclude the judge failed to consider defendant's discovery assertions. Further, the record does not clearly disclose what evidence the State released or why the MVR videotapes, containing allegedly exculpatory evidence, purportedly sent by the State, were never provided. On remand, prior to trial, the municipal court judge must first address precisely what discovery the State released as required by A-3194-11T4 19 

Rules 7:7-7 and 7:7-8; what it did not release, despite assertions to the contrary; and what relief may be appropriate. 
Based on our conclusion that a new trial must be conducted, we decline to address defendant's challenges to the imposed consequences of conviction. 

Reversed and remanded for a new trial in the municipal court, before a different municipal court judge.