On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0823.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Espinosa.
In this case, we granted leave to the Office of the Public Defender (OPD) and to defendant, Barbara Brookman, to appeal from an order entered by the trial court sua sponte that required the Public Defender to appoint an attorney to represent defendant at her expense. Defendant's cross-appeal was subsequently administratively dismissed.*fn2 We now reverse.
Defendant was indicted in September 2007 on charges of neglect of an elderly or disabled person, N.J.S.A. 2C:24-8 (count one), resisting arrest, N.J.S.A. 2C:29-2(a) (count two), and obstruction of the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count three). She was represented in the initial stages of this case by privately retained counsel. In April 2008, the trial court granted the motion of defendant's counsel to be relieved as counsel. Thereafter, defendant represented herself.
On August 26, 2009, the trial court conducted a pre-trial conference. The court began by stating its intention to schedule a new trial date and asked defendant if she could be ready on September 8. When she replied, "No," the court offered November 9. Again, she replied that she could not be ready on that date. After protracted inquiry into defendant's reasons for wanting a later date, the court set November 9 as a peremptory trial date.
The conference continued with a discussion of outstanding discovery issues. The trial court spoke to defendant about "the problems of going pro se" that defendant would have to live with because she wanted to represent herself. It is evident from the transcript that defendant proved to be a challenging litigant, prompting the court to repeatedly instruct her to "stop." After defendant rebuked a court employee who apparently laughed at her and complained, the court cautioned her, stating, "Ms. Brookman, . . . you're very close to forfeiting your right to represent yourself[.]" Shortly thereafter, the court announced that defendant had forfeited her right to represent herself.
Defendant argued with the court, stating that she did not forfeit her right:
I have a right to discuss with you. That's my way of discussing, speaking loudly. I'm not arguing with you. You know that Jews speak loudly. You're one yourself. Your mother speaks loudly, too. I'm not arguing with you. I'm just telling you.
The transcript reflects that defendant continued to engage in conduct toward the court that was inappropriately confrontational and argumentative.
The following colloquy ensued:
THE COURT: You are going to - - based on the entire course of your conduct before me as a pro se litigant I am ruling that you have forfeited your right to represent yourself, and I am going to enter an order to that effect.
You are going to come back here to court on the 14th of September, Monday, at nine o'clock. Do you have any problem with that date?
MS. BROOKMAN: Yes, I have a problem ...