NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-0925.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Guadagno.
Following a bench trial, defendant Erick K. Kibuuka appeals from the final amended judgment of conviction (JOC), entered on March 23, 2012, for third-degree defrauding the administration of a drug test, N.J.S.A. 2C:36-10(d). Defendant maintains the trial judge's failure to explore his request to obtain private legal representation violated his constitutional rights. Defendant also maintains the sentence imposed was "manifestly excessive." We reject these arguments and affirm.
On December 2, 2008, a Cape May County Grand Jury charged defendant with one count of defrauding the administration of a drug test, N.J.S.A. 2C:36-10(d). The charge was issued after defendant, while on probation, was directed to provide a urine sample, and his probation officer allegedly observed him pouring something into the urine sample bottle. The probation officer confiscated the specimen bottle, which was not warm to the touch, and the second bottle in defendant's possession, the remaining contents of which, defendant drank prior to its seizure.
Following a jury trial, defendant appealed his conviction. This court reversed on April 1, 2011, because of flawed jury instructions.
On remand, the case was reassigned to Judge Raymond A. Batten. On the date scheduled for trial, immediately prior to jury selection, defendant maintained his innocence and expressed dissatisfaction with his attorney, whom he asserted was unresponsive to his inquiries and "not interested" in his defense. Defendant requested an adjournment so he could retain private counsel. Judge Batten extensively examined defendant to discern the reasons for his request. Defendant claimed he had not been "represented fairly, treated fairly in the whole process" and was not comfortable with his attorney.
Judge Batten noted reversal of defendant's earlier conviction did not stem from allegations directed to counsel's performance. He also rejected defendant's claim he was unaware the trial was scheduled to start, because the order entered following the September 8, 2011 pretrial conference contained the scheduled trial dates on the same page as defendant's signature acknowledging receipt of the order. Defendant again renewed his request for "counsel I feel comfortable with."
Judge Batten denied the request noting defendant made no factual showing counsel's representation was deficient. He concluded: "At this late date, I can only suspect . . . that any expression of dissatisfaction with counsel by you is a delay tactic and this case is old. I have a duty to try this case[.]"
Defendant elected to waive his right to a jury trial and elected a bench trial, which was held that day. At the close of evidence, the judge found the State carried its burden and proved defendant was guilty beyond a reasonable doubt of defrauding the administration of a drug test. The judge imposed a four-year prison ...