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State v. Fritz

Decided: January 14, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID FRITZ, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division.

For modification and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, Justice.

Handler

[105 NJ Page 44] Defendant, David Fritz, seeks reversal of his convictions for second-degree aggravated assault and third-degree unlawful possession of a handgun. He asserts that the trial court's refusal to grant a continuance of the trial prevented his attorney from adequately preparing a defense and, consequently, deprived defendant of constitutionally adequate representation by counsel. The issue posed by defendant's appeal compels us to re-examine the standards that govern a criminal defendant's

entitlement to the effective representation of counsel under both the sixth amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution.

I.

This appeal arises out of an altercation between Newark Special Police Officer Daryl Armstrong and a group of youths, one of whom was defendant David Fritz. As a result, defendant was indicted on November 18, 1980, for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); first-degree robbery, N.J.S.A. 2C:15-1; and third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. In order to resolve the issues on appeal, we must first carefully examine the surrounding facts.

It is undisputed that on the night of September 2, 1980, Armstrong was armed and working in uniform as a security guard at Gino's, a fast food restaurant located on Park Avenue between Fifth and Sixth Streets in Newark. R.J., a juvenile, entered the establishment and asked in a vulgar manner to use the bathroom. Armstrong testified that while leaving the restaurant, R.J. uttered obscenities and threatened to take the officer's gun. Armstrong asked R.J. to leave and followed him out the door of the restaurant to the parking lot.

Defendant and his friends, members of a group called "The Assassins," were walking through the parking lot at this time. R.J. was standing in front of Gino's with Armstrong when he called to this group for help. Defendant Fritz and codefendant Miller approached R.J. and the officer and inquired as to the problem. Armstrong informed them that R.J. had been using obscene language and that he wanted R.J. to leave the restaurant. R.J.'s response was to turn around, drop his pants, and expose his buttocks to Armstrong. This action provoked laughter from R.J.'s friends. Armstrong then attempted to arrest R.J. for indecent exposure and for being a disorderly person.

The events subsequent to Armstrong's attempt to arrest R.J. are disputed. At the probable cause hearing, held one month

after the incident, Armstrong testified that as he grabbed at R.J. in order to arrest him, codefendant Miller hit him, knocking his glasses off. This enabled R.J. to grab Armstrong's night-stick and hit him with it. Armstrong responded to this assault by R.J. and Miller by drawing his gun. Armstrong testified that defendant Fritz immediately grabbed the gun from his hand. However, an inconsistency arises over what took place next. At the probable cause hearing, when asked if defendant pointed the gun at him, Armstrong replied:

A. He was, uh, turning around to point the gun at me and I caught him on the half turn and grabbed the gun out of his hand. At that point, that was when it fired.

Q. All right, did he -- he was attempting to point the gun at you?

A. I would say so.

Armstrong also stated explicitly that defendant Fritz did not strike him:

Q. Other than that contact which you had with him, that physical contact, by which he gained possession of the gun and thereafter you repossessed it, is there any other contact that you two had?

In other words, did he in any way assault you or make physical contact.

A. Did he assault me?

Q. Other than at the time he went to grab your gun?

A. No, he didn't.

Based upon the testimony of Special Officer Armstrong, the court dismissed the charge of aggravated assault, determining that "testimony is lacking with respect to any specific aggravated assault on Officer Armstrong by reason of specifically punching him or hitting him about the body."*fn1 The court found sufficient evidence, however, to support charges of robbery and possession of a weapon.

In contrast to his testimony at the probable cause hearing, Armstrong testified at trial that "there was no doubt" in his mind that both Fritz and Miller had been punching him when he drew his gun. In addition, with respect to what defendant

Fritz did with the gun for the brief period it was under his control, Officer Armstrong asserted at trial:

Q. What did David Fritz do with the gun after he got it out of your hand?

A. He turned and pointed it at me.

Q. Where [on] your body did he point the gun?

A. I would say my chest area.

Codefendant Miller's witness, Carl Middleton, testified at trial to yet another story. He was with Fritz and Miller in the parking lot, but did not go forward with them to engage Armstrong. Whereas Armstrong testified that there was one unidentified assailant involved in the altercation, Middleton placed the number at two or more. Moreover, Middleton testified that it was these unidentified individuals who actually hit Armstrong. Middleton stated that Fritz neither hit Armstrong nor grabbed at his gun, but was trying to remove himself from the fray when he tripped over a ledge in the sidewalk and fell near a parked car. Armstrong then broke free from the person holding him, drew his gun, and fired in Fritz's direction.

At this point the various accounts converge. R.J. and the unidentified assailant(s) fled at the sound of the gunshot, and Armstrong arrested Fritz and Miller. The police arrived shortly thereafter. One of the responding police officers, Officer Price, prepared an incident report based on information supplied by Armstrong. Significantly, Price testified that the report contained no indication that Fritz had hit Armstrong, and that Armstrong had reviewed the report and made no changes.

Following his arrest, defendant had only sporadic contact with the Public Defender's Office prior to trial. The Office opened a file on his behalf in November of 1982. Francis Meehan, Esq., who was ultimately to represent defendant at trial, spoke to him the next month about a proffered plea bargain, which defendant refused. The case was then assigned to Richard Aljian, Esq., of the Public Defender's Office. At this point, however, communications broke down. Nothing further was done on the case until Mr. Meehan received a trial notice on April 28, 1983 setting the trial date as Monday, May 9.

It was not until the Friday preceding the Monday date that Mr. Meehan learned that the trial was actually going forward on schedule.

On the first morning of trial, Mr. Meehan requested a continuance on the ground that he was unprepared to try the case. He told the court that he had had his first serious discussion with defendant that very morning. In addition, counsel had neither ordered a copy of the probable cause transcript nor contacted witnesses. The trial court noted that Mr. Meehan was assigned to the court, and that defendant had not come forward to contact counsel with names of witnesses in the two and a half years since his arraignment. Further noting that the first day was only for jury selection, the court stated, "So you will have this evening and tomorrow until nine o'clock to do whatever you are able to do." The trial proceeded the next day, May 10, and concluded on May 12, 1983. The jury found defendant guilty of second-degree aggravated assault, second-degree robbery (a lesser-included offense), and third-degree possession of a handgun. On June 17, 1983, the trial court heard and denied defendant's motions for judgment of acquittal notwithstanding the verdict and for a new trial. Defendant was sentenced on August 12, 1983, to concurrent ten-year terms of imprisonment with three-year periods of parole ineligibility for the aggravated assault and robbery convictions, and a concurrent five-year term for the possession count.

The Appellate Division reversed defendant's conviction for robbery because the evidence, "once fully developed at trial," did not support it. However, a majority of the court affirmed defendant's other convictions in the face of defendant's allegation that he had received ineffective assistance of counsel at trial. The court held that the representation defendant received occasioned "no realistic prejudice to defendant's case or to the true interest of justice." On this point, one judge dissented, stating, "[d]efendant's claim of ineffective ...


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