On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Michels, O'Brien and Skillman. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Theodore Pych was convicted of conspiracy to promote gambling, a crime of the third degree, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:37-2. The trial court sentenced defendant to the custody of the Hudson County Probation Department for a term of five years on the condition that he serve 364 days in the Hudson County Jail or Jail Annex. In addition, defendant was fined $15,000, assessed a penalty of $25, payable to the Violent Crimes Compensation Board and ordered to perform 350 hours of community service. This sentence, however, was stayed pending appeal. In the interim, defendant's motion for reconsideration of sentence was denied.
Defendant seeks a reversal of his conviction or, alternatively, a modification of his sentence on the following grounds set forth in his brief:
POINT I THE INDICTMENT OF DEFENDANT'S TRIAL COUNSEL, UNBEKNOWNST TO DEFENDANT, CREATED AN INHERENT CONFLICT OF INTEREST RESULTING IN A VIOLATION OF DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS SECURED BY ART. I, PAR. 10 OF THE STATE CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT II THE FAILURE OF DEFENDANT'S COUNSEL TO DISCLOSE THE FACT OF HIS PENDING INDICTMENT DEPRIVED THE DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO SELECT COUNSEL OF HIS OWN CHOOSING.
POINT III THE SENTENCING GUIDELINES WERE VIOLATED IN THAT THE SENTENCING JUDGE MISAPPLIED AND GAVE DISPROPORTIONATE WEIGHT TO THE AGGRAVATING FACTOR OF "ORGANIZED CRIMINAL ACTIVITY" AT N.J.S.A. 2C:44-1a(5).
POINT IV THE SENTENCING COURT'S CONCLUSION THAT THE DEFENDANT WAS SUBSTANTIALLY INVOLVED IN ORGANIZED CRIMINAL ACTIVITY WAS NOT BASED ON COMPETENT CREDIBLE EVIDENCE.
POINT V THE SENTENCE IMPOSED WAS UNDULY EXCESSIVE.
POINT VI THE SENTENCING COURT'S BIAS AGAINST DEFENDANTS IN GAMBLING CASES WHO RETAIN COUNSEL VIOLATED THIS DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL GUARANTEES OF RIGHT TO COUNSEL AT THE SENTENCING STAGE.
We have carefully considered these contentions and all of the arguments advanced in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment is necessary with respect to some of the arguments advanced by defendant.
Defendant contends that he was denied his constitutional right to the assistance of counsel as a result of the indictment of his trial attorney, John P. Russell. The first prong of his argument rests on the fact that Russell was under indictment during the trial of this case. Defendant contends that this created an inherent conflict of interest that violated his constitutional right to the effective assistance of counsel because "an attorney under indictment and awaiting trial may be hesitant in zealously advocating his client's cause in a criminal trial out of
fear of incurring the wrath of the State's representative(s)." The second prong of defendant's argument is that he was denied his constitutional right to secure counsel of his own choosing by virtue of Russell's failure to disclose his pending indictment to defendant.
The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel in order to protect his fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691 (1984); Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); Gideon v. Wainwright, 372 U.S. 335, 339-340, 83 S. Ct. 792, 793-794, 9 L. Ed. 2d 799, 802 (1963); Powell v. Alabama, 287 U.S. 45, 66, 53 S. Ct. 55, 63, 77 L. Ed. 158, 169 (1932). The New Jersey Constitution mirrors the federal provision, guaranteeing defendants in our State courts the right to counsel as well. State v. Fusco, 93 N.J. 578, 583 (1983); State v. Sugar, 84 N.J. 1, 15-16 (1980). To ensure a defendant of the protection intended by these constitutional rights, both the United States Supreme Court and the New Jersey Supreme Court have recognized that the right to the assistance of counsel necessarily is the right to the effective assistance of counsel. See, e.g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763, 773 n. 14 (1970); Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 464, 86 L. Ed. 680, 699 (1942); State v. Bellucci, 81 N.J. 531, 538 (1980); State v. Land, 73 N.J. 24, 31 (1977).
Our state Supreme Court has also observed that "[t]he constitutional right to the 'assistance of counsel' contemplates that the attorney's position as an advocate for his client should not be compromised before, during or after trial." Land, supra, 73 N.J. at 29. Moreover, an attorney's representation of
an accused must be "'untrammeled and unimpaired,' and his loyalty undivided." Bellucci, supra, 81 N.J. at 538. There can be no greater violation of a defendant's right to effective counsel than when his attorney is serving conflicting interests. Ibid. See also Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220, 230 (1981) (where a right to counsel exists, an accused is entitled to the correlative right to representation free from any conflict of interest). Since the existence of such a conflict may render a trial constitutionally infirm, this issue warrants further discussion.
The most common scenario in which a conflict of interest may arise is when an attorney represents more than one client in the same matter. Hence, the few published New Jersey decisions addressing conflict of interest focus on this situation. Although none of these cases involves a conflict of interest stemming from the indictment of a defense attorney, these decisions are instructive on our Supreme Court's general approach to conflict of interest claims. In Land, the Court addressed the problem of multiple representation, noting, "Where the attorney cannot or may not be able to pursue an unrestrained course of action in favor of a defendant because he represents a codefendant, his effectiveness as counsel has been hampered." 73 N.J. at 30-31. Accordingly, the Land court opined that:
the preferable rule is that, in the absence of waiver, if a potential conflict of interest exists, prejudice will be presumed resulting in a violation of the New Jersey constitutional provision guaranteeing the assistance of counsel. [ Id. at 35 (Emphasis supplied)].
In Bellucci, the Supreme Court similarly considered whether an attorney's representing several criminal defendants denied one of them the effective assistance of counsel. Relying upon Land, the Court reaffirmed that a constitutionally suspect conflict of interest generally arises from such legal representation. Because Bellucci's trial attorney had represented two codefendants until just before they entered guilty pleas and thus had a continuing obligation to refrain from acting against their interests, the Court found:
that the potential for Russell to be less than a vigorous partisan for Bellucci existed in his continuing obligation to preserve the pretrial confidences and secrets of the [other codefendants]. [81 N.J. at 541 (Emphasis supplied)].
This mere potential for conflict was deemed sufficient to warrant reversing Bellucci's conviction. No showing of actual prejudice was required.
Recently, in State v. Bell, 90 N.J. 163, 173 (1982), the Supreme Court ruled that the representation by the public defender's office of multiple defendants in the same criminal action does not, in itself, give rise to a presumption of prejudice. This holding modified the principle enunciated in earlier decisions that once a potential for conflict was found to exist, prejudice would be presumed. Land, supra, 73 N.J. at 35; Bellucci, supra, 81 N.J. at 543. The Bell court concluded that "a conflict of interest with resulting prejudice to defendants will be presumed only when 'the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.'" 90 N.J. at 175 (Handler, J., concurring) (Emphasis supplied). It was this flexible balancing approach that the Court used to resolve the claims of ineffective assistance of counsel.
Before applying the balancing test of Bell to this case, it must be noted that Russell's representation of defendant while under indictment was not in violation of any rules of ethical conduct. See New Jersey Rules of Professional Conduct -- RPC 1.1 to RPC 8.5. An examination of the New Jersey Rules of Professional Conduct makes clear that, in adopting them, the Supreme Court did not intend to prohibit indicted attorneys from practicing law or serving as trial counsel. See, e.g., RPC 1.16 (providing that an attorney may not represent a client if: (1) representation will result in professional conduct violation; (2) his physical or mental condition is impaired; or (3) he is discharged).
The professional conduct rule which appears to be most on point is RPC 1.7. This rule provides, in pertinent part:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third ...