On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1136.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi*fn1 and Nugent.
The opinion of the court was delivered by ASHRAFI, J.A.D.
Defendant Terrence Miller*fn2 appeals from his conviction by a jury on two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1); and one count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1).
The issue we address is whether the fact that defendant did not meet his substituted trial attorney until the morning scheduled for a suppression hearing and trial, by itself, constitutes deprivation of defendant's right to a fair trial, or whether defendant must show that he was prejudiced by the late contact with his trial attorney. Following precedents of our Supreme Court and our own prior decisions, we conclude that defendant is not entitled to a new trial without demonstrating ineffective assistance of counsel or other prejudice. Because defendant has not made either of those showings, we affirm his convictions.
We are not faced with a case where an attorney was first appointed to represent an indigent defendant on the day that a criminal trial was about to begin. Cf. Jablonowski v. State, 29 N.J. Super. 109 (App. Div. 1953) (attorney was appointed to represent the defendant on the morning scheduled for trial and had less than two and a half hours to prepare). Nor is this a case where denying an adjournment "equaled requiring that defendant proceed without counsel" and, thus, defendant "in practice has been denied the right to be represented by counsel." State v. Hayes, ___ N.J. ___, ___ (2011) (slip op. 24, 26).
Defendant was actively represented by counsel from the Public Defender's Office in pretrial proceedings long before the scheduled trial date. Defendant and his attorneys had at least two weeks' notice that trial would begin on Monday, December 10, 2007. For reasons not revealed in our record, managing attorneys at the Public Defender's Office substituted a different Assistant Deputy Public Defender for the staff attorney who had represented defendant in earlier proceedings. At no time did either of the two Assistant Deputy Public Defenders assigned, or the managing attorneys, state to the trial court that they were unprepared to proceed, or request more time to investigate or gather evidence for presentation of a defense.
On December 10, 2007, newly-assigned counsel requested an adjournment because defendant wished to meet with him in "a calmer setting so that we can discuss and plan this particular matter." Counsel stated he had received the file the previous week and had time to review it and prepare for trial. His goal in requesting an adjournment was to develop "rapport" with his client. The trial judge denied the request. Because the central issue on appeal is whether that ruling violated defendant's right to a fair trial, we quote at length the relevant colloquy between defense counsel and the trial judge:
DEFENSE COUNSEL: -- I just wanted to state on the record, in my conversations with Mr. Miller this morning, because the nature of this change of assignment, this is the first opportunity I've had to meet with him, it goes without saying that Mr. Miller is expressing some --THE COURT: Concern?
DEFENSE COUNSEL: -- concern. And the reality is, judge, one develops a rapport with one's attorney, and that rapport isn't established on Day 1 when you're ready to start a suppression hearing, and ultimately proceed to trial.
And while I understand it is the Court's intention to call this matter and have this matter proceed to trial, in fairness to Mr. Miller, I think he would best prefer that this matter was adjourned to allow an opportunity for us to sit in . . . a calmer setting so that we can discuss and plan this particular matter.
I've advised him that . . . the file was provided to me sometime last week, with an opportunity for me to review and prepare. But to that end, I think Mr. Miller would still prefer that this matter not proceed at this time.
THE COURT: This Court had listed this matter for trial months ago. This isn't a surprise trial date. The Court has discussed the trial date with counsel for the past week or two. I think as much as three weeks ago the Court, or at least two weeks ago, the Court was aware that [former defense counsel] would not be able to try the case. For the record, [former defense counsel] was the original attorney representing Mr. Miller.
The Court was informed that the Public Defender's Office, . . . the chief of that office, and . . . the assistant chief were of the opinion that this case couldn't be tried because it would need new counsel. In fact, the Court was told that.
The Court's response was that under Rule 1:11 it is the Court that decides whether a case is going forward or whether there can be a change of counsel. The Public Defender's Office never came to the Court or said to the Court that it wanted specifically an adjournment, although the Court learned of it through [former defense counsel] . . . who said that the higher ups thought that the matter just couldn't go ahead.
The Court's response to [former defense counsel] was, well, you can go back and tell them that it is the judge who decides whether an attorney can be relieved, and under what conditions.
Rule 1:11 provides that the Court does not have to grant a request for change of counsel if it is going to delay the trial of the case. Clearly, that is the situation here.
This judge has been trying to get a handle on cases for several months and has been unable to move one for trial due to changes in the Public Defender's Office or the Prosecutor's Office with files. So the Court approximately two weeks ago said this matter is going to trial.
And it said that trying a drug case for a criminal defense attorney is as easy as trying an intersection accident case for a civil trial lawyer. The dispute here is not a difficult one to understand. The police are going to say that Mr. Miller was dealing drugs and they observed him do it in a particular fashion, and that they either saw him deal the drugs or saw him use an intermediary to deal the drugs, but the scenarios are essentially the same in every case. There is nothing difficult or complex about this case.
The Court is electing to hear the suppression motion this morning. . . . It will pick a jury tomorrow morning. And it will, then, proceed to try the case the balance of the day. The State has only two witnesses of which the Court is aware, unless it has to jump through the hoops of proving chain of custody, that might add a couple of incidental witnesses. But the State's case is simple and short.
That means that the defendant has today to prepare for the State's witnesses. Counsel has had the file. Reading a police report doesn't take very long. Meeting with a client doesn't take very long. And defense counsel will be well-prepared to proceed tomorrow.
In terms of producing witnesses, the defense doesn't have to do that until Friday. It strikes the Court that moving the case ahead at this time creates no prejudice to Mr. Miller. What it does do, and the Court will concede this, that Mr. Miller is greeted with some level of discomfort because he has -- he has dealt with [former defense counsel]. But in terms of defending the case, the defendant is prejudiced in no way.
The trial court's ruling resulted in immediately proceeding to a suppression hearing, which was completed that morning.
At that hearing, Trenton Police Officer William Mulryne testified that on the afternoon of August 4, 2006, he was assigned to conduct surveillance of illicit street drug sales. At about 2:30 p.m., Mulryne saw from his concealed location a woman walk up to a man standing on the corner of Martin Luther King Boulevard and Fountain Avenue. He identified the man as defendant Miller. After a brief conversation, defendant walked to a nearby house and reached to the side of a window air conditioner at ground-level. Defendant walked back to the woman and "dropped some objects into her hand." The woman gave defendant what appeared to be paper currency and then walked away. Mulryne believed he had witnessed a hand-to-hand transaction for the sale of an illegal drug.
At 2:48 p.m., Mulryne saw a man, later identified as Joseph McKinney, approach defendant and engage in a brief conversation. Defendant again walked toward and reached up to the air conditioner. He then walked back to McKinney and handed him an unknown object and received paper currency. McKinney walked away from the area. Mulryne called to backup officers to confront and arrest McKinney. They did so and recovered rock cocaine from McKinney.
According to Mulryne's testimony, defendant left the corner of Martin Luther King Boulevard and Fountain Avenue shortly after the exchange with McKinney. About ten minutes later, defendant returned in a black Cadillac and walked into a delicatessen. Defendant was arrested within minutes, and the police seized from his person paper currency in various denominations amounting to $790. An officer also seized a bag containing rock cocaine from the air conditioner that defendant had twice approached.
Defense counsel cross-examined Mulryne, challenging his line of sight to the location of the alleged transactions.
Using Mulryne's police report and a photograph of the scene taken by defendant after his arrest, defense counsel questioned Mulryne about his ability to see the individuals involved in the transactions through the branches of trees and other vegetation.
He also questioned Mulryne about his reported use of binoculars during the surveillance, although he claimed to be no more than seventy-five feet away. In addition, defense counsel cross-examined Mulryne about the failure of the police to arrest the woman who had engaged in the first transaction and to obtain evidence from her.
Defendant was the only other witness at the suppression hearing. He testified he was not at the scene of the drug transactions but was downtown shopping for clothes at that time. On cross-examination, he said a person he only knew by a familiar name, not his true name, had given him a ride to the delicatessen and would support his testimony that he was downtown that day. The trial judge questioned defendant about his prior criminal record of five indictable convictions. Based on credibility findings in favor of the police officer and against defendant, the judge denied defendant's motion to suppress evidence.
After hearing defendant's testimony, the prosecutor expressed concern that the defense had not provided notice before the trial of a possible alibi defense, as required by Rule 3:12-2. But the prosecutor did not move to bar an alibi defense, and neither attorney requested an adjournment to investigate such a defense.
After the suppression hearing was concluded during the morning, defense counsel had the remainder of Monday, December 10, to meet with defendant and to plan for the trial beginning the following day. The court had already informed counsel that only the prosecution would need to present evidence the next day. Defense counsel had two additional days to prepare for a defense case because prior judicial commitments prevented the judge from hearing the trial again until Friday of that week.
On Tuesday, December 11, a jury was selected in the morning session. During the afternoon, counsel made opening statements, Officer Mulryne testified before the jury in similar fashion as at the suppression hearing, and defense counsel again cross-examined him about his line of sight and his ability to see and identify the individuals involved in the street transactions.
The State then called one of the officers who had arrested McKinney and defendant. His direct testimony was brief, as was his cross-examination. He testified that he and other officers stopped and arrested McKinney at a location away from the area where the alleged transactions had occurred. As the police approached, McKinney dropped an object to the ground, which the police recovered and found to contain rock cocaine. The officer also testified that he communicated with Officer Mulryne by radio, and then he participated in defendant's arrest at a corner on Martin Luther King Boulevard. He said defendant's arrest occurred about seven minutes after ...