On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sapp-Peterson and Messano.
By order dated April 4, 2008, the Supreme Court granted the State's motion for leave to appeal, summarily remanding this matter to us for consideration of the merits of the State's appeal from an order denying its motion to disqualify defense counsel, Adolph Galluccio, from further representation of defendant Afrim Tairi in this homicide prosecution. Having now considered the arguments raised in light of the motion record and applicable legal standards, we reverse.
The State alleges that during September and November 1995, defendant, along with Felix DeJesus and Edwin Torres, committed a series of violent crimes culminating in the November 8, 1995, murder of Howard Lewis during a home invasion robbery in Teaneck. The crimes remained unsolved for a time, and before defendant was charged, he fled the country and was not extradited back to New Jersey until sometime in 2006.
On November 13, 1996, the Bergen County grand jury returned Indictment #S-1570-96, charging DeJesus and Torres with various crimes that related to three criminal episodes, described by defense counsel during the motion proceedings as 1) a "home invasion" on September 16, 1995, that began on Staten Island and "culminated in Paterson"; 2) a "home invasion" on November 1, 1995, in Englewood; and 3) the November 8, 1995, "home invasion in Teaneck" that "resulted in the felony murder of  Lewis." DeJesus was also charged with the theft of Lewis's MasterCard credit card taken during the robbery. N.J.S.A. 2C:21-6(c). A third defendant, Dennis Rolon, was also indicted in a single count charging him with the unlawful use of Lewis's stolen credit card. N.J.S.A. 2C:21-6(h). Both DeJesus and Torres were convicted of all charges at separate trials in which Rolon testified against them as a State's witness. DeJesus was sentenced to an aggregate term of life plus sixty-five years with a fifty-eight year parole disqualifier; Torres was sentenced to an aggregate term of life plus sixty-nine years with a sixty-year parole disqualifier. We affirmed both convictions, remanding as to DeJesus for the entry of an amended judgment of conviction on the credit card theft charge, noting its required merger into the conviction for the first-degree robbery of Lewis. State v. Felix DeJesus and State v. Edwin Torres, A-5084-98 and A-5292-98 (App. Div. December 10, 2001).
During Torres's trial in November 1998, Rolon testified that he received Lewis's credit card from DeJesus on the day of the murder and, pursuant to DeJesus's direction, he used the card to purchase clothing at a store in Clifton. Rolon was eventually arrested on the credit card charge and retained Gallucio to represent him. He cooperated with the police, gave a statement implicating himself and DeJesus in the stolen credit card charges, agreed to wear a "wire," and met with DeJesus on several occasions in an attempt to gain incriminating evidence. Ultimately, Rolon pled guilty to the single charge in the indictment in return for a probationary sentence and agreed to testify truthfully at the trials of DeJesus and Torres. Rolon did so to "clear [his] name because [he] believe[d] that at the time [he] was very much a suspect in the murder of  Lewis."
At DeJesus's trial in January 1999, Rolon testified that DeJesus carefully instructed him to use the stolen credit card to purchase certain-sized pants and shoes at the store in Clifton, and to deliver them to the home of Alexander Cowan, someone known to both of them as "Father Nation." Rolon did so, and shortly after he brought the clothing to Father Nation's home, DeJesus arrived. Rolon claimed that DeJesus and Father Nation then had a private conversation that he could not hear, and he offered no further information during his testimony regarding the Lewis murder.
Rolon testified that after he was arrested, he "consulted with [his] attorney," and decided to cooperate with the police. When asked why he cooperated, Rolon answered, "I cooperated because I used a credit card. I was very much a suspect in the murder of  Lewis . . . . I didn't think about any leniency . . . other than me just trying to make sure that I wouldn't be accused of murdering  Lewis." Although he acknowledged that the police never threatened to charge him with the murder, Rolon reiterated that in his mind, he was "very much a suspect."
Rolon claimed that he found out about Lewis's murder the day after he used the credit card, and that he returned to the store to tell the salesman, Frankie Rivera, that the credit card "belonged to someone who was murdered," but that he, Rolon, was not involved in the homicide.
On June 9, 2000, a Bergen County grand jury returned Indictment #01-06-1503-I charging defendant with essentially all the crimes for which DeJesus and Torres were previously indicted. Defendant was arrested by Swiss authorities in 2006, subsequently extradited to Bergen County, and retained Galluccio as his attorney.
The State moved to disqualify defense counsel based upon his prior representation of Rolon, and on October 22, 2007, an initial hearing was held on the State's application. Galluccio first noted that the charges alleged in the indictment essentially arose out of three separate incidents and that there was "absolutely no" "potential conflict with the first two" incidents because the State never alleged Rolon was involved in those events and never charged him in connection with any of those crimes.
Galluccio only recalled Rolon's involvement in the credit card incident and his representation of him on the prior indictment after having read through the entire discovery in the case, suggesting therefore that Rolon was not a significant witness in defendant's future prosecution. Galluccio argued that defendant "want[ed] [him] to remain in the case" despite his prior representation of Rolon. Asserting that defendant did not know Rolon, and that, consistent with the State's position, Rolon "never met [defendant], never saw him, never spoke to him, [and] didn't even know he was involved in this case," Galluccio represented, "[w]e don't expect, . . . to point a finger that [Rolon] is in some way culpable" for Lewis's murder. Nonetheless, he acknowledged that "someone can always put a cloud over any type of situation, but . . . it's more imagined than real."
The prosecutor, however, argued that Galluccio still owed Rolon a "continuing duty . . . [t]o keep certain confidences" pursuant to the attorney-client privilege and that the State could never know "what  th[ose] attorney-client privileged statements" might be. The prosecutor further contended that there was "an ...