State v. Raymond D. Kates (070971)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Raymond D. Kates (A-40-12) (070971)

(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment is
based substantially on the reasons expressed in the opinion of the Appellate Division, which is published at
426 N.J. Super. 32 (App. Div. 2012).)

Argued November 18, 2013 -- Decided January 14, 2014

PER CURIAM

In this appeal, the Court considers the method by which a trial court is required to analyze a defendant’s
request for a continuance in order to exercise his or her constitutional right to retain chosen counsel.

On the morning trial was scheduled to commence, defendant Raymond D. Kates learned that his lead trial
counsel, Assistant Deputy Public Defender Jeffrey G. Klavens, would likely be deployed overseas during the trial.
Kates objected, explaining that he was uncomfortable with changing attorneys midstream and felt it was unfair and
would confuse the jury. He also was concerned that his second-chair attorney was less familiar with the case. Kates
requested an adjournment so that he could retain his own counsel. The trial court summarily denied the request and
proceeded with trial.

Kates appealed, and the Appellate Division ordered a new trial, concluding that the trial court did not
reasonably balance Kates’s desire to retain counsel of his choice against the need to proceed with a scheduled trial.
The panel explained that the Sixth Amendment entitles a defendant to choose his own counsel, and deprivation of
this right is a structural error which does not require a defendant to demonstrate prejudice. That being said, the right
to counsel is not absolute and should be balanced against the court’s calendar and other issues. In order to properly
assess a defendant’s request for a continuance to retain counsel, trial courts should consider the various factors
outlined in State v. Ferguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985), including
the length of the delay, the balanced convenience or inconvenience to litigants and the court, whether the defendant
contributed to the reason for the delay, and whether and to what extent the defendant will be prejudiced. The panel
noted that the availability of other competent counsel is not a substitute for the right to choose. Finally, deprivation
of the right only occurs when a trial court mistakenly exercises its discretion and erroneously or arbitrarily denies a
continuance to retain chosen counsel. The Court granted certification. 213 N.J. 45 (2013).

HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge
Ostrer’s opinion below. Deprivation of a defendant’s right to counsel of choice is only found where, as here, a trial
court denies an adjournment without properly considering the relevant factors or abuses its discretion in doing so.

1. Although a lengthy factual inquiry is not required, a trial court must conduct a reasoned, thoughtful analysis of
the appropriate factors, as outlined in Ferguson, when considering a defendant’s request for an adjournment to retain
chosen counsel. If this analysis occurs, the court can exercise its authority to deny the request without invoking
structural error. Trial courts retain considerable latitude in balancing the appropriate factors. Deprivation of the
right to counsel of choice is only found if a trial court summarily denies an adjournment to retain private counsel
without considering the relevant factors, or if it abuses its discretion in the way it analyzes those factors. Here, there
may have been reason to deny Kates’s request. However, since his request was summarily denied without analysis
of the relevant factors, a new trial is required. (pp. 5-6)

The judgment of the Appellate Division is AFFIRMED.

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 CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in this PER CURIAM opinion.

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 SUPREME COURT OF NEW JERSEY
A-40 September Term 2012
070971

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAYMOND D. KATES,

Defendant-Respondent.

Argued November 18, 2013 – Decided January 14, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 32 (2012).

Teresa A. Blair, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

Lauren S. Michaels, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).

PER CURIAM

The Appellate Division reversed defendant Raymond Kates’

conviction for second-degree eluding, N.J.S.A. 2C:29-2(b), and

fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-

2(a)(2). We affirm that judgment largely for the reasons stated

in Judge Ostrer’s opinion in State v. Kates, 426 N.J. Super. 32

(App. Div. 2012).

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 On the morning trial was scheduled to start, defendant

first learned that Assistant Deputy Public Defender Jeffrey G.

Klavens would likely be deployed overseas during the trial. Id.

at 39. It appears that Klavens was to be the lead trial

counsel; Assistant Deputy Public Defender Dionne Stanfield was

to be second-chair. Ibid.

Defendant objected through Klavens: “he’s not comfortable

. . . changing attorneys midstream or having the jury see me for

part of the time and then seeing me leave for the rest of the

time. He feels it’s not fair to him. He[] has concerns that

the jury would be confused.” Defendant also expressed concern

because Stanfield was “newer to the case.” As a result, Klavens

represented to the trial court that defendant was “working now”

and “requesting a postponement so he can hire his own attorney.”

In response to counsel’s question -- “Is that right?” --

defendant agreed with the request for an adjournment.

Without any further discussion or inquiry of defendant, the

trial court stated, “I understand that request. I am denying

that request. We are going to proceed with the trial today.”

The Appellate Division concluded that “the trial court did

not adequately elicit facts and apply the relevant factors to

reasonably balance defendant’s desire to retain counsel of his

choice against the court’s need to proceed with the scheduled

trial.” Id. at 51. The panel therefore ordered a new trial.

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 The appellate court’s reasoning is ably set forth in Judge

Ostrer’s opinion. In essence, the opinion explains that (i) the

Sixth Amendment “entitles ‘a defendant who does not require

appointed counsel to choose who will represent him,’” id. at 43

(quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126

S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 417 (2006))1; (ii)

deprivation of the right to counsel of choice is a “structural

error,” so defendants who demonstrate that their right has been

violated do not have to show prejudice, id. at 44 (citing

Gonzalez-Lopez, supra, 548 U.S. at 150, 126 S. Ct. at 2564, 165

L. Ed. 2d at 420); (iii) a defendant’s right to counsel of

choice “is not absolute” and may be balanced against the demands

of the court’s calendar, among other issues, id. at 45

(citations omitted); (iv) to assess a defendant’s request for a

continuance to retain counsel of choice, trial courts should

consider various factors outlined in State v. Furguson, 198 N.J.

Super. 395, 402 (App. Div.) (adopting analysis of United States

v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied,

439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)), certif.

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As the court noted, “an indigent defendant who is represented
by appointed counsel does not enjoy a right to choose counsel.”
Kates, supra, 426 N.J. Super. at 43 (citing State v. Williams,
404 N.J. Super. 147, 170 (App. Div. 2008), certif. denied, 201
N.J. 240 (2010)). The Public Defender may substitute attorneys
within the office. See, e.g., Morris v. Slappy, 461 U.S. 1, 103
S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
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denied, 101 N.J. 266 (1985), which guide the courts’ discretion,

Kates, supra, 426 N.J. Super. at 46; (v) those factors include

the length of the requested delay; whether
other continuances have been requested and
granted; the balanced convenience or
inconvenience to the litigants, witnesses,
counsel, and the court; whether the
requested delay is for legitimate reasons,
or whether it is dilatory, purposeful, or
contrived; whether the defendant contributed
to the circumstance which gives rise to the
request for a continuance; whether the
defendant has other competent counsel
prepared to try the case, including the
consideration of whether the other counsel
was retained as lead or associate counsel;
whether denying the continuance will result
in identifiable prejudice to defendant’s
case, and if so, whether this prejudice is
of a material or substantial nature; the
complexity of the case; and other relevant
factors which may appear in the context of
any particular case;

[Furguson, supra, 198 N.J. Super. at 402
(quoting Burton, supra, 584 F.2d at 490-91);
see also State v. Hayes, 205 N.J. 522, 538
(2011) (noting that balancing of factors “is
an intensely fact-sensitive inquiry”).];

(vi) the availability of other competent counsel, while

relevant, “is no substitute by itself for the constitutional

right to choose counsel,” Kates, supra, 426 N.J. Super. at 46;

and, (vii) a deprivation of the right only occurs “when the

court mistakenly exercises its discretion and erroneously or

arbitrarily denies a continuance to retain chosen counsel,” id.

at 47.

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 We write to emphasize certain points that the Appellate

Division noted. If a trial court conducts a reasoned,

thoughtful analysis of the appropriate factors, it can exercise

its authority to deny a request for an adjournment to obtain

counsel of choice. See State v. McLaughlin, 310 N.J. Super.

242, 260 (App. Div.), certif. denied, 156 N.J. 381 (1998);

Furguson, supra, 198 N.J. Super. at 405-06. Such an approach

does not invoke structural error.

Trial judges retain considerable latitude in balancing the

appropriate factors. Hayes, supra, 205 N.J. at 537-39. They

can weigh a defendant’s request against the need “to control

[the court’s] calendar and the public’s interest in the orderly

administration of justice.” Furguson, supra, 198 N.J. Super. at

402; see also Burton, supra, 584 F.2d at 490 (noting that trial

court “is free to deny a continuance to obtain additional

counsel if, upon evaluation of the totality of the

circumstances, it reasonably concludes that the delay would be

unreasonable in the context of the particular case”).

Thus, we underscore that only if a trial court summarily

denies an adjournment to retain private counsel without

considering the relevant factors, or abuses its discretion in

the way it analyzes those factors, can a deprivation of the

right to choice of counsel be found. Structural error is not

triggered otherwise.

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 In this case, there may have been reason to deny

defendant’s request for a continuance based on the

Burton/Furguson factors. But no analysis was conducted. We do

not suggest that a lengthy factual inquiry is required, see

Kates, supra, 426 N.J. Super. at 53, but the summary denial of

defendant’s request, with no consideration of the governing

standard, amounts to error and requires a new trial.

We therefore affirm the judgment of the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in this per curiam opinion.

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 SUPREME COURT OF NEW JERSEY
NO. A-40 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAYMOND D. KATES,

Defendant-Respondent.

DECIDED January 14, 2014

Chief Justice Rabner PRESIDING

OPINION BY Per Curiam

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 6

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