On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This case presents the question whether representation of appellant and his two co-defendants by staff attorneys of the same local public defender's office, absent any showing of actual conflict of interest or possible prejudice, constituted a denial of appellant's state or federal constitutional rights to the effective assistance of counsel in a criminal proceeding. U.S. Const., Amend. VI; N.J. Const. (1947), Art. I, § 10; State v. Bellucci , 81 N.J. 531 (1980); R. 3:8-2. We conclude that such joint or dual representation of co-defendants by public defenders from the same local office, does not, without more, constitute a denial or impairment of their constitutional right to counsel.
Defendant-appellant Rogers and his co-indictees Kitt and Williams were indicted for armed robbery and illegal possession of revolvers in Fairlawn, Bergen County, on January 18, 1979. Appellant remained in jail in default of $25,000 bail pending trial.
On May 30, 1979 a so-called Green*fn1 hearing was held before Judge Schiaffo at appellant's Rogers request one week before the preemptory trial date. He there contended for the first time just a week before trial that representation of the three defendants by three public defenders from the same office created an irreconcilable conflict of interest. Rogers' deputy
public defender, Mr. LoLordo, voiced his client's objection to his representation -- "basically it's [Rogers'] apprehension -- he felt he had information vital to his defense and I think he was basically apprehensive about telling me because he thought co-counsel might find out what that information is and it might be used against him at the trial of the matter by the co-defendants." Rogers' concern was allegedly aroused because his co-defendant Williams had written an apologetic letter the week before to one of the victims of the crime. The prosecutor quickly agreed not to use the letter in the State's case, thereby obviating any Bruton*fn2 problem. The letter never became a factor at trial. Rogers' fears, insofar as his attorney LoLordo could communicate them, boiled down to the fact that he didn't trust his lawyer because of the public-defender association among defense counsel. As counsel put it: "He won't tell me what it is, but he feels that perhaps our files are accessible to everybody, that another attorney might see this information and use it against him in some manner."
The Law Division judge carefully outlined in defendant's presence each counsels' duty of confidentiality to each client whether a staff public defender, pool attorney for the public defender's office,*fn3 or a privately retained attorney.*fn4 The judge dismissed defendant's fear of his counsel's lack of professionalism as ungrounded, if not paranoid, and an insufficient reason for the appointment of pool counsel from the private bar, to be
paid by the public defender's office. Attorney LoLordo's application to withdraw as counsel was denied.
Before trial began on June 4, 1979 before Judge Huot, appellant's counsel sought an adjournment and again sought to withdraw because Rogers still refused to confide in him in preparation of a defense. LoLorda repeated Rogers' contention: "He felt it wasn't wise to tell me what the facts of the defense are because of the possible conflict. He felt that it would be against his interests to have the co-defendants aware of this information" because "we're three men in the same office." Judge Huot denied LoLordo's application concluding that "any lack of preparation is directly attributable to your refusal to cooperate with [counsel] in the preparation of the defense." Appellant then opted for LoLordo's continuing representation rather than self-representation when offered this choice by the judge. He was advised that no waiver of his currently-voiced objection would arise from this choice. Gratuitously, but understandably, the trial judge registered his impression that "as far as I'm concerned this entire picture is one of delay."
The case was tried before Judge Huot from June 5 through June 8, 1979. Appellant Rogers was found guilty on all three counts. The co-defendants Williams and Kitt did not testify and were granted mistrials because of improper remarks by the prosecution in summation impinging upon their rights to remain silent. A motion for mistrial by Rogers, who did testify, was denied because "the comments of the prosecutor did not harm him in any way."
At trial, the State presented proof that on Saturday, December 23, 1978 Santiago and Anna Nieves, who operated a meat market in the Bronx, were about to enter their home in Fairlawn with the day's receipts of $14,000 stuffed in a brown paper bag when they were set upon and robbed at gun point by the three defendants. Rogers and Kitt were seized by the police as they were leaving the Nieves house. Rogers had the bag of money, checks and food stamps in his hand when he was
captured. Williams was apprehended nearby five minutes later. Alert neighbors had called the police when suspicious activity ...