On certification to Superior Court of New Jersey, Appellate Division, whose opinion is reported at 165 N.J. Super. 294 (1979).
Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.
The opinion of the court was delivered by PASHMAN, J.
This case requires us to consider the presence of a conflict of interest in criminal representation and whether such conflict denies a defendant the effective assistance of counsel. The attorney who represented defendant in his prosecution for several gambling offenses also represented two co-defendants until just before they entered guilty pleas. His law partner represented another co-defendant at the joint trial. We hold that in the absence of an informed waiver by defendant, the potential for a conflict of interest by his attorney requires reversal of defendant's conviction and a new trial.
Surveillance of the premises at 16-18 Beacon Avenue in Jersey City by the New Jersey State Police Gambling Unit led to a raid on December 13, 1973. At about 4:30 p.m., Mildred Commandatore and Primas Johnson were arrested in the driveway of the building after Johnson was observed passing a paper bag to Mrs. Commandatore. The bag contained lottery slips and $280.50 in cash. The officers entered the premises pursuant to a search warrant and found defendant Bellucci seated at the
kitchen table. On the table were slips of paper containing names and amounts of money, an adding machine and a cellophane bag filled with more paper slips. The police arrested and searched Bellucci, seizing $456 from his person and $450 from the kitchen table.
Bellucci, Johnson, and Mildred Commandatore and her husband Anthony were subsequently indicted for violations of criminal statutes pertaining to the operation of a lottery. N.J.S.A. 2A:121-3 (a)(b)(c) (now superseded by N.J.S.A. 2C: 37-2, -3 & -4).
Bellucci's attorney, John P. Russell, Esq., was also counsel to the Commandatores in their unsuccessful bid for a bargained plea and until they pleaded guilty. Although James A. Galdieri, Esq., appeared for them when they entered their pleas, his first contact with them was that very day. Galdieri referred to Mr. Russell as "Mr. Commandatore's attorney" and as having represented Mrs. Commandatore in earlier negotiations.
Bellucci unsuccessfully moved to sever his trial from that of Johnson, the remaining co-defendant. At the joint trial, Bellucci admitted that he knew the Commandatores' home was being used for lottery purposes. His defense was that he was on the premises because Mildred Commandatore had asked him to come over to talk about her hospitalized brother, a longtime friend. Still awaiting sentencing, neither of the Commandatores testified at Bellucci's trial, and attorney Russell did not attempt to call them as witnesses.
Defendant Johnson also claimed that his activities had a legitimate purpose. His attorney, Dennis McAlevy, Esq., was Russell's law partner. During the trial the prosecutor referred to this association in the presence of the jury.
The jury found both defendants guilty as charged. Defendant Bellucci's motion for a new trial was denied, and Russell filed a notice of appeal on his behalf. Thereafter, a substitution of attorney was filed naming Mr. Galdieri as Bellucci's attorney of record, and the conflict of interest issue presented by the
Russell-McAlevy partnership was briefed and argued before the Appellate Division.*fn1 After oral argument, that court on its own motion expanded the conflict question to include consideration of Russell's prior representation of the Commandatores.
In ordering a new trial, 165 N.J. Super. 294 (1979), the Appellate Division noted the differing amounts of evidence incriminating the respective defendants. In the court's view the professional association of Bellucci's trial attorney with counsel for an "apparently guilty" co-defendant might have swayed the jury. 165 N.J. Super.. at 300-01. The Appellate Division concluded that "while this circumstance alone might not warrant a reversal," when accompanied by Russell's prior representation of the Commandatores, the aggregate likelihood of resulting prejudice required a new trial. 165 N.J. Super. at 302-03.
The court found obvious "[the] potentiality for less than thoroughly faithful and undivided attention to defendant's interests at the time of trial * * *." 165 N.J. Super.. at 303. Observing that Bellucci's defense could have been bolstered by testimony of either or both Commandatores, the court inferred that the reason for Russell's failure to call them as witnesses could have been his interest in protecting the Commandatores before their sentencing. The court held that without Bellucci's waiver of his right to independent counsel, the existence of prejudice would be presumed. The court therefore found that defendant had been denied the effective assistance of counsel. 165 N.J. Super.. at 304; N.J.Const. (1947), Art. I, P10.
We granted the State's petition for certification on the conflict of interest issue. 81 N.J. 49 (1979). We now affirm.
The Sixth Amendment to the Federal Constitution and Art, I, P10 of the New Jersey ...