Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant was indicted by the Essex County grand jury for the sale of a narcotic drug, heroin, contrary to the provisions of R.S. 24:18-4.
On July 12, 1963, when the indictment was moved, defendant's assigned counsel (not his present one) made a motion to be relieved. He represented to the court that he was having difficulty with defendant, principally by reason of the latter's insistence upon his own ideas as to what the law was. Defendant was demanding that the prosecutor should first move another
indictment against him for possession of narcotics. He also complained that assigned counsel had visited him only once prior to the trial date. The trial judge denied counsel's motion to be relieved but postponed the trial until July 15 to afford further time for preparation.
At the trial the State called one Quinones, a federal narcotics agent, who testified as to the alleged sale to him by the defendant. Following cross-examination by his assigned counsel, defendant requested leave of the court to cross-examine the witness further and, thereafter, conduct his own defense with the assistance of assigned counsel. Following an initial denial, the request was granted, assigned counsel being cautioned that he was still attorney of record and that he should extend his services to the defendant if and when needed.
Quinones testified that on the day of the offense, he and one Parker, a government informant, had met the defendant on Jones Avenue near Springfield Avenue in Newark. Parker called defendant over to his car and inquired as to where he could make a purchase of narcotics. Defendant directed them to another area nearby. Shortly thereafter they met defendant at the indicated place and he advised them to go around to Howard and Mercer Streets where "his boy, Buster, was dealing for him around there and would take care of us." When advised that they had been there and had seen no one, defendant said that "he would go there and take care of us himself." They then drove to Mercer Street near Howard, parked the car and waited for defendant for several minutes. When defendant arrived, he again came up to the car and asked "how many" they wanted. The answer was "four," whereupon he was handed $20 and left to enter a tavern on the corner. He emerged after a few minutes, came back to the car, stuck his hand inside and handed over four glassine envelopes which the witness took. Later testimony revealed that they contained a white substance which was identified as heroin. Similar testimony was elicited from Parker.
The defense was entrapment. Following denial of a motion for acquittal defendant took the stand and under examination
by his assigned counsel gave an entirely different version of what had transpired. He testified, in substance, that he had previously known Parker and had met him in a tavern on the day of the accident. Parker complained of being ill and asked if he (defendant) had any narcotics. He knew that Parker was a narcotics user and replied that he did not have any. Parker then asked if he knew anyone in the vicinity who had any, to which defendant replied that there were some people in the area who did but he hadn't seen any of them. Eventually, Parker requested him to try to get some from a man named Odis, who was known to both of them and lived on Charlton Street. Defendant attempted to do so but his mission was unsuccessful, and he so advised Parker shortly afterwards. He then went into a tavern at Howard and Mercer Streets and Parker waited in a car which was parked across the street from the tavern. A short time thereafter one Zollie Davis, locally known as "Buster," came into the tavern. Defendant told Davis that Parker wanted to buy narcotics. Davis wouldn't sell to Parker but was willing to sell to him. He then went to Parker, who gave him $20 to buy four bags of narcotics from Davis for him. He then entered the tavern, paid $20 to Davis for the four bags and brought them out to Parker. He stated that he did it only because Parker, who was a narcotics user, claimed he was sick and he was trying to help him. He admitted that Quinones was in the car when he made the delivery. He denied that what he did amounted to a sale, contending that he only acted as a messenger for Parker in the transaction.
At the close of his direct testimony the court asked defendant if there was anything that he wished to add. Defendant then launched into a lengthy and rambling statement in extenuation, during the course of which he admitted that what he had done was a "violation of the law" and that "I am guilty."
Davis was called as a rebuttal witness and denied defendant's testimony as to his part in the alleged sale. After the taking of testimony was completed and counsel for the defendant had
summed up, defendant, himself, asked and was allowed to sum up. The jury rendered a verdict of guilty and defendant was later sentenced to a fine of $50 and a prison term of from 3 to 5 years. The present appeal followed.
Defendant first contends that the trial court abused its discretion when it allowed him to participate with assigned counsel in the defense of his own case. Recognizing that there was no objection to the challenged action, he alleges that it constituted plain error under R.R. 1:5-1(a).
The rule is well settled that, with exceptions not here relevant, a defendant in a criminal prosecution may choose to conduct his own defense and waive his right to counsel. State v. Griffith, 14 N.J. Super. 77 (App. Div. 1951); Zasada v. State, 19 N.J. Super. 589 (App. Div. 1952); Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). While no case is cited by either counsel in which our own appellate courts have been called upon to determine whether the granting of a defendant's request to conduct his own defense in conjunction with his assigned or retained counsel constituted prejudicial error, both cite cases of our sister states in which the problem has been considered, its difficulties explored and ground rules adopted.
The only New Jersey case called to our attention whose facts resemble those sub judice is State v. Burkitt, 120 N.J.L. 393 (Sup. Ct. 1938). While not dispositive, we find it enlightening. There the defendant sought certiorari to review the affirmance by the Hudson County Common Pleas Court of his conviction for violation of the Disorderly Persons Act. He had been represented by counsel at the trial below, but had insisted upon participating in the trial. The court had required that the case be conducted either by himself or by counsel but not by both. He urged as a ground for reversal that he had been denied counsel by the trial judge. The court held:
"It is next urged that the court erred in denying the defendant the aid and advice of counsel. We do not find this to be the fact. On the contrary, the court in an ...