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State v. Finneman

Superior Court of New Jersey, Appellate Division

March 22, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
NASIR A. FINNEMAN, Defendant-Appellant.

          Submitted December 12, 2018

          On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 32-15.

          Ryan Anderson argued the cause for appellant.

          Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Linda A. Shashoua, of counsel and on the brief).

          Before Judges Alvarez, Nugent, and Mawla.

          OPINION

          ALVAREZ, P.J.A.D.

         On September 18, 2015, defendant Nasir A. Finneman was found guilty of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(c). During the municipal court hearing, he was represented by a public defender. See Municipal Public Defender Law, N.J.S.A. 2B:24-1 to -17. On his appeal de novo to the Law Division, Rule 3:23-8(a)(2), defendant was assigned a first, then a second, pro bono attorney. Both successfully petitioned the court to withdraw. As a result, the conviction was affirmed in the absence of any counsel, or in fact, any argument by anyone on defendant's behalf. We now reverse.

         The underlying facts are not necessary to the disposition of this appeal. It is necessary, however, to describe the trial de novo record regarding the assignment of counsel, and the final hearing. Defendant's first assigned attorney alleged that defendant wanted him to raise issues in violation of the Rules of Professional Conduct (RPC). The attorney added that he had "no prior experience in state-law criminal matters." Defendant was not given notice of the hearing at which his first attorney was relieved of the assignment.

         The second attorney sought to withdraw because defendant refused to meet with her in either her larger Philadelphia office or the courthouse, and she claimed she did not feel comfortable conferring with him in her small New Jersey office. The judge did not propose that counsel then and there discuss the case with defendant, or otherwise explore counsel's application. She too was relieved.

         Defendant, who had been noticed and was present in the courtroom, said he did not understand the reason his second attorney did not want to meet with him, suggesting perhaps it was the volume of his voice over the cell phone. Defendant also complained that Sheriff's officers followed him "around the courthouse and . . . did bad things to [him]." He added that they used "excessive" force on him even though he was disabled, they did not assist him, and that they "all work[ed] together[.]" He did not say he wanted to represent himself.

         On the last page of the nine-page transcript of this proceeding, presumably after the judge left the bench, defendant asked: "[n]ow what about counsel? He's going to assign me to counsel or I have to[.]" His attorney responded: "I would believe that he would assign you new counsel then." Defendant asked if he has to sign something, and the prosecutor responded that the clerk will provide him with a signed order, but did not "know if [the court was] going to assign [counsel] or not."

         The next and final hearing was scheduled some three months later. Defendant told the judge that he spoke to someone in the clerk's office after the earlier hearing and was advised that he would be assigned counsel, or that someone from the public defender's office would represent him. The prosecutor interjected that it was her understanding that defendant "at that point . . . was going to proceed on his own." Additionally, the prosecutor pointed out that defendant missed the deadline for filing written submissions in support of his appeal.

         Defendant denied having conflicts with either counsel. He did not understand why his second attorney withdrew, or why he was not notified of the hearing date for his first attorney's withdrawal. He told the judge that he had never said he wanted to represent himself and that he did not "have the education at law to represent [him]self." When the judge said that he was ready to address the matter, defendant tried to object. The judge went on to say that defendant was "unable to get along with counsel and the two counsel have withdrawn, and I'm going to decide the case."

         The judge made findings of fact and law, and summarily found defendant guilty. He sentenced defendant to a thirty-day suspended sentence, probation for six months, and required him to undergo a psychiatric evaluation and comply with recommendations for treatment. He also imposed monetary penalties including a $150 fine under N.J.S.A. 2C:43-3, and refused to stay the sentence. The sole point of error defendant raises on ...


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