On appeal from Superior Court, Law Division, Atlantic County.
Seidman, Pressler and King.
Defendant was tried to a jury and found guilty of an assortment of offenses contained in a 13-count indictment, including two charges of breaking and entering with intent to steal, larceny, assault with intent to kill, armed robbery, assault and battery upon a police officer and possession of a knife. He was sentenced to an aggregate State Prison term of 36 to 45 years. This appeal ensued. For reasons that follow, we reverse and remand the matter for a new trial.
Although numerous grounds for reversal are argued in appellant's brief, it is unnecessary for us to consider any of them except the first, which asserts that "[t]he defendant's constitutional rights were seriously and prejudicially infringed when the court failed to grant him a continuance until he obtained counsel of his own choosing." Although we discern no merit in the contention per se , included within it is the argument that jury selection took place while defendant was not represented by counsel. The point is raised for the first time on appeal; nevertheless, it is a substantial one and we notice it as plain error. R. 2:10-2. We are convinced from our review of the record that defendant was deprived of his right to the effective assistance of counsel at a critical stage of the trial, as guaranteed by the Sixth Amendment of the Federal Constitution and of the New Jersey Constitution, N.J.Const. (1947), Art. I, par. 10.
On the day fixed for the trial defendant told the court he did not wish to be represented by the public defender assigned to the case, claiming that this was only the second time he had seen the attorney and that "each time it was only a matter of minutes." He said, additionally, that he had spoken to his mother "the other night" and was informed by her that "she [was] going to get me my private attorney." The trial judge
responded that the assigned public defender was an experienced and competent counsel and that the trial would not be delayed.
If the colloquy had ended at this juncture and the trial had gone forward with the assigned counsel participating notwithstanding defendant's vehement protests, we would have no difficulty in concluding on this record that defendant had failed to show substantial cause for seeking the discharge of his attorney. Cf. State v. Lowery , 49 N.J. 476, 489 (1967). In fact, when counsel was later ordered to assume the defense of the case, we are satisfied from our examination of the record that he performed his task thoroughly and competently. In the circumstances, the trial judge correctly rejected defendant's effort to dismiss his assigned counsel.
We find further that the trial judge properly declined to delay the trial until private counsel could be engaged. An indigent defendant must, of course, be provided with counsel, Gideon v. Wainwright , 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), but he has no right "to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented," State v. Rinaldi , 58 N.J. Super. 209 (App.Div.1959), cert. den. 366 U.S. 914, 81 S. Ct. 1089, 6 L. Ed. 2d 238 (1961). A defendant desiring to exercise the right to choose his own counsel must proceed to do so with reasonable diligence. Here, defendant not only waited until the trial was imminent to endeavor to obtain private counsel (or have his mother do so), but "there was no representation made as to the availability or retainer of any particular counsel or proof of present financial ability to secure one." State v. Reddy , 137 N.J. Super. 32, 35 (App.Div.1975).
But error of constitutional dimension was committed when, after defendant obdurately persisted in his unwillingness "to go to trial with Mr. Rosenberg," the trial judge issued an ultimatum that if the services of the public defender were rejected, defendant would have to try the case himself. We cite the following excerpts from the lengthy exchange between the two:
THE COURT: * * * Now if you want Mr. Rosenberg to represent you, he is here. * * * If you decide you would prefer to try the case without Mr. Rosenberg, then you have that right and you will proceed to trial without an attorney.
THE COURT: This case is going to trial today. * * *
Do you want Mr. Rosenberg to sit with you and assist you while you represent yourself?
THE DEFENDANT: No, I don't want him to sit.
THE COURT: Well, then you will try the case yourself as your attorney.
THE DEFENDANT: You are saying it. I didn't say it.
THE COURT: * * * We are about to select a jury in your case and I want to talk to you again and give you an opportunity to reconsider your position regarding whether or not you are going to defend yourself or have Mr. Rosenberg defend you.
THE DEFENDANT: * * * I don't wish to be represented by Mr. Rosenberg * * *. And as far as defending myself, I ...