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State v. O'Brien

May 15, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL O'BRIEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 07-112.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 27, 2009

Before Judges Sabatino and Simonelli.

Defendant Michael O'Brien appeals his conviction of his second offense for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. His appeal concerns the municipal judge's denial of an extemporaneous request to adjourn the trial, a ruling which he claims deprived him of his Sixth Amendment right to counsel of his choice.

Briefly stated, on the evening of July 21, 2007, defendant's vehicle was stopped on Route 35 by an Aberdeen Township police officer. The officer had observed the vehicle repeatedly and abruptly changing lanes and nearly striking the highway's cement barrier. Defendant was administered a breathalyzer test, and produced a .16% BAC reading, which is above the legal limits. He was issued a summons for DWI, as well as reckless driving, N.J.S.A. 39:4-96.

Defendant retained an attorney to represent him in the Aberdeen Municipal Court proceedings. The attorney ("the partner") is a certified criminal trial lawyer with extensive experience in defending DWI cases. He has his own law practice, working along with, at various times, one or more associates.

On November 14, 2007, the municipal prosecutor and an associate attorney from the defense counsel's law firm ("the associate")*fn1 appeared in the municipal court. Defendant and the arresting police officer were also present. The partner was not present, because he was in another municipal court trying two older matters. After a conference with the municipal judge in chambers, counsel went out on the record. At that point, the associate addressed the court and made "a formal request on the record for an adjournment of this matter." Alluding to the earlier conference in chambers, the associate stated that he had "indicated some reasons why we were asking that this matter be carried one more time." The associate noted that defendant wanted the partner to represent him at the trial. The associate confirmed the client's desire by placing him under oath and conducting a brief voir dire on the subject.

The municipal judge denied the adjournment request, noting that the case was one of the oldest DWI matters on the court's docket. The judge recognized that the partner was in another court, but observed that the Rules of Court do not authorize the designation of individual trial counsel in non-civil matters. See Rule 4:5-1(c). The judge also noted that the associate was present and that he could start the trial in the partner's absence.

At that point, the associate moved to dismiss the case for lack of jurisdiction, contending that the events that gave rise to the motor vehicle stop did not originate in Aberdeen Township. To develop the facts on that threshold issue, the arresting police officer was called to the stand. The associate cross-examined the officer and established that he had first observed defendant's weaving vehicle in Keyport Township and that the eventual stop occurred in Aberdeen a short distance over the Aberdeen/Keyport border. On redirect examination, the prosecutor had the officer prepare a diagram of the pertinent street locations. The associate did not object to the diagram for the limited purpose of providing a visual depiction of the officer's testimony, so long as the court did not treat the diagram as dispositive of the jurisdictional issue. The judge agreed with the associate's proposed evidentiary limitation. The associate then orally argued the jurisdictional issue, requesting a dismissal of the summonses. The motion was denied.

At that point, the associate stated that "based upon the [c]court's denial, and I've discussed this with my client, the defendant is seeking to enter a conditional guilty plea[.]" Defendant agreed to plead guilty to the DWI offense, with a simultaneous dismissal of the reckless driving summons. Defendant would preserve his right to challenge the court's jurisdiction on appeal.*fn2 The court and the prosecutor accepted those terms.

Defendant was then placed under oath, and his assent to the plea was placed on the record. Defendant did so after conferring with the associate, who defendant himself described to the judge in the transcript as "my attorney." The municipal judge then accepted the plea and sentenced defendant, a second-time DWI offender, to two years loss of his driver's license, community service, and various fines, costs, and monetary penalties. The sentence was stayed pending appeal.

Defendant sought de novo review of his conviction in the Law Division. He did not appeal the jurisdictional ruling, but instead argued that his constitutional right to counsel of his choice under the Sixth Amendment was violated by the municipal court's denial of an adjournment. Defendant principally relied upon the United States Supreme Court's opinion in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed. 2d 409 (2006), which held that the Sixth Amendment had been transgressed when a federal district judge had refused to allow a criminal defendant's chosen out-of-state attorney to appear pro hac vice in the case. After considering supplemental briefs on the implications of Gonzalez-Lopez and oral argument, the Law Division judge concluded that the municipal court's adjournment denial in this particular case had not violated the Sixth Amendment, nor had it violated the holding of Gonzalez-Lopez. The DWI conviction was therefore sustained.

In his present appeal, defendant argues that the Law Division misapplied Gonzalez-Lopez and that the municipal judge was obligated under the Sixth Amendment to adjourn the trial to allow the partner to try the case instead of the associate. The defense stresses the partner's personal expertise in trying DWI matters, noting that, by comparison, the associate had never tried a DWI case before. Defendant maintains that there was no urgency in the trial going forward, emphasizing that the State's second ...


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