On appeal from the Superior Court of New Jersey, Law Division, Essex County, 98-7- 3048-I.
Judges Carchman, Lintner and Parrillo.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
As amended September 14, 2001
Defendant appeals from an order of November 13, 2000, granting the State's motion to recuse defendant's counsel. We reverse and remand for further proceedings.
We combine the procedural history and relevant facts. On May 26, 1998, defendant was charged under Essex County Indictment No. 98-07-3048, with second degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (Count One); murder of Greg Blunt, N.J.S.A. 2C:11-3a(1) and (2)(Count Two); third degree possession of a weapon, N.J.S.A. 2C:39-5b (Count Three); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Four).
A second Essex County Indictment, No. 98-07-3046, was returned on the same date charging defendant with second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. Defendant was initially represented by Raymond Beam, Esq. In June 2000, Paul W. Bergrin, Esq., defendant's current attorney, was substituted as counsel. Bergrin had previously represented Maurice Lowe, who had been charged with the homicide of Greg Blunt, along with co-defendant Mendu Madison under a January 1996 Essex County Indictment, No. 95-12-3938. On April 28, 1997, Madison pled guilty to Count One, which was amended to aggravated manslaughter and Count Two, unlawful possession of a weapon. According to representations made by the State's attorney, the homicide charges against Lowe were dismissed because Madison admitted his own culpability and gave exculpatory statements concerning Lowe's involvement. Bergrin asserted before the motion judge and again asserts in his appellate brief, that the charges against Lowe were dismissed because of lack of evidence. The day following his plea, Madison provided a statement inculpating defendant in the shooting of Greg Blunt. As a result of his cooperation, Madison's sentence was ultimately reduced from eighteen years with an eight-year period of parole ineligibility to fifteen years with a five-year period of parole ineligibility. A trial date was scheduled for November 27, 2000. The State intended to call Madison as a witness against defendant.
On October 27, 2000, defendant filed a motion to compel discovery.*fn1 Specifically the motion sought evidence previously requested of "any prior promises or agreement of leniency or a specific sentence made" to Madison, as well any plea bargains that were recommended and any other evidence which could affect Madison's credibility as a witness. While defendant's motion to compel discovery was pending, the State filed a cross motion on November 9, 2000, to recuse Bergrin from representing defendant because of his previous representation of Lowe.
Granting the State's motion, the judge stated the following:
Well, I certainly have a concern with an appearance of impropriety. Certainly, it would not be the first time in a situation like this where the Appellate Courts would have found that there was, in fact, a conflict in limiting the defense attorney's ability to cross-examine a witness, and the matter being reversed and having to be retried for that reason.
Certainly, and I'm not suggesting that there's an actual conflict, but, certainly, the appearance is there with regard to the general public of Mr. Bergrin being in the position of having to vehemently attack testimony and credibility of Mendu Madison on behalf of his now client, Mr. Pierrevil, where his other client was the beneficiary of that very same agreement.
I can't see how that is not an appearance of impropriety. And quite frankly, I don't see nor has there been any suggestion of any other remedy than recusal, even though it is quite extreme, but I believe necessary.
I just don't see any other alternative in this case. Certainly I am of the feeling that to do otherwise is to more than invite a reversal of any verdict in this matter, and I think that the interests of ...