State of New Jersey v. Gregory A. Martinez

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5019-12T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 15, 2015
v. APPELLATE DIVISION

GREGORY A. MARTINEZ,

Defendant-Appellant.
_______________________________

Submitted February 23, 2015 - Decided May 15, 2015

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 11-01-0028.

Benedict and Altman, attorneys for appellant
(Joseph J. Benedict and Philip Nettl, on the
briefs).

John J. Hoffman, Acting Attorney General,
attorney for respondent (Daniel I.
Bornstein, Deputy Attorney General, of
counsel and on the brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

We again examine the tension between a trial court's

discretionary "authority to control its own calendar" by denying

an adjournment request and the need to safeguard "a defendant's
Sixth Amendment right to a fair opportunity to secure counsel of

his own choice." State v. Miller, 216 N.J. 40, 62, 65 (2013)

(citation and internal quotation marks omitted), cert. denied,

__ U.S. __, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014).

Defendant Gregory A. Martinez appeals from an order denying a

trial adjournment in light of private counsel's scheduling

conflict. Defendant argues the denial of the reasonable

adjournment request infringed upon his Sixth Amendment right to

counsel of his choosing.

Following our review of the facts here presented, and

guided by the framework for review set forth in State v. Hayes,

205 N.J. 522 (2011), we conclude the denial of defendant's

request to adjourn trial, without weighing the facts presented

supporting the adjournment request, reflects an arbitrary

exaltation of expedience in case processing at the expense of

defendant's right to counsel. Accordingly, we vacate the

judgment of conviction and remand the matter for a new trial.

We recite limited facts regarding the circumstances of the

alleged criminal offenses, concentrating instead on the facts

surrounding defendant's adjournment request. Defendant and his

codefendant were charged in a twelve-count indictment returned

January 5, 2011, alleging they sold cocaine to an undercover

police officer. The two were occupants in a car that was seized

2 A-5019-12T4
and impounded. A search of the car pursuant to a warrant,

conducted approximately one week later, yielded in excess of

five grams of cocaine. Codefendant admitted the cocaine was

his. Defendant was charged with six drug offenses, including

first-degree possession with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and 2C:35-5(b)(1). He pled not guilty, asserting

he had no knowledge the drugs were in the car. Ultimately,

defendant hired private counsel (the partner) to represent him.

On February 4, 2013, the trial judge held a pretrial

conference. An associate employed by the partner's firm

attended the conference and expressed his understanding the

conference was, in part, to schedule a new trial date because it

was believed everyone agreed the February 13, 2013 trial date

would be adjourned. The associate explained his position,

stating:

[T]he last time that everybody was here,
everybody, at least on the [d]efense side,
and . . . I believe from the State side as
well, thought that this . . . court date
today would be to schedule a new trial date.
They believed that the trial date was off
because of [the partner]'s trial schedule.

With that belief in mind, then when
[the partner]'s other trial in front of
Judge Nieves fell through, he scheduled
something else for this week, because he
believed that this trial was off.

As a result, he's in front of Judge
Rebeck on a civil matter that started on

3 A-5019-12T4
Friday, continued into today and is going to
continue into next week, at least Wednesday
of this week, and Wednesday, Thursday and
Friday of next week, so he's not going to be
available to try the case.

I am, this is my first time appearing
on the case, and I will be the one trying it
if it goes next week.

I've discussed this with my client and
I can tell the [c]ourt that he's not happy
about it. He wants [the partner] to be his
trial lawyer, and I wanted the [c]ourt to be
aware of that.

For that reason, we are still asking
. . . the . . . trial . . . be adjourned in
order for [the partner] to be available.
And just to complete the record, as far as
the hearing that he's involved with that's
in front of Judge Rebeck who is retiring at
the end of the month and needs to get this
hearing done before he retires.

THE COURT: Okay. And I understand
that. Certainly neither I nor my team
leader told anyone involved in this case
that this case was not going next week. In
fact, this case has been on for quite awhile
while. It's an older case on my list. I
have put the time aside for it. And while I
understood [the partner] maybe had another
commitment in front of Judge Nieves, once
that case did not go forward, as often
happens with criminal cases, then he was
available for us.

Perhaps [the partner] should have
someone else try the case in front of Judge
Rebeck. I mean, I don't tell him how to
manage his cases.

I will say to [defendant] that [the
associate] is a very experienced attorney
who works with [the partner], and I know

4 A-5019-12T4
 that he, based on our discussions in my
chambers, is familiar with the case.
Obviously, he is now going to continue
preparing for the trial. But I certainly
have confidence that he can handle this case
and he understands the defense in this case
and is prepared to proceed with it.

But [defendant], if you want to say
anything, I'll give you that opportunity
now.

DEFENDANT: I'm not in agreement
with this. I want [the partner] to be my
lawyer.

The judge requested the partner come to the courthouse and

instructed the parties to appear before the presiding Criminal

Part judge to address the adjournment request. We have no

record of that conference, except the associate's recitation on

the first day of trial, when he again set forth defendant's

objection to proceeding without the partner. He stated:

And after our conference, we went down
to [the presiding judge] to explain the
situation to him. [He] did not agree that
the trial date should be moved. He ordered
that the trial continue as scheduled here
today, even though [the partner] was not
going to be available.

In the meantime, I've had opportunities
to consult with my client. While he has
been cooperative in preparing for trial with
me, it is still his desire to have [the
partner] be his trial attorney, and we want
to place that on the record.

When asked by the trial judge, the associate admitted "I have

had time to prepare the case and I am ready to try the case."

5 A-5019-12T4
 Trial commenced. After two days of deliberations, the jury

convicted defendant on all but one charge.

At sentencing, the partner appeared. Expressing his

client's anger, he recited the events that led him to believe

the initial trial date was adjourned. The partner explained

during a January 3, 2013 conference,1 he advised the court of a

trial conflict, as he was given a firm date to commence an

aggravated sexual assault trial before another Criminal Part

judge the week before the scheduled date for trial in this

matter. As he would be on his feet in that priority matter, a

new trial date was requested. Counsel were advised to return on

February 4 for a pretrial conference. Based on unforeseen

events, trial of the priority case was adjourned on January 18.

The partner called the prosecutor to discuss scheduling in this

case and the prosecutor stated he understood a new date would be

given and he already cancelled his witnesses. The partner was

then scheduled to commence a civil matter, which began prior to

February 4 and was to continue the week of February 11, 2013.

Rejecting counsel's request for a new trial, the trial

judge recalled the prosecutor cancelled his witness, but stated

"[t]here was never an official adjournment" of the trial date

1
These events apparently were not recorded; however, the
State does not dispute their accuracy.

6 A-5019-12T4
and the presiding judge considered and denied the request. The

judge also observed the associate "put forth a defense in a

vigorous way," represented defendant "very well," and she was

satisfied defendant received a fair trial. The trial judge

sentenced defendant and this appeal ensued.

Defendant's argument is straightforward. He asserts the

denial of his adjournment request was an abuse of discretion

that "denied his Sixth Amendment right to counsel of his

choosing." The State counters, arguing the contention must be

rejected because defendant has not demonstrated such an alleged

abuse of discretion caused him to suffer a "manifest wrong or

injury." See Hayes, supra, 205 N.J. at 537.

Although the denial of an adjournment request is reviewed

under a deferential standard and "'broad discretion must be

granted trial courts on matters of continuances,'" Miller,

supra, 216 N.J. at 65 (quoting Morris v. Slappy, 461 U.S. 1, 11,

103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610, 620 (1983)), "'an

unreasoning and arbitrary "insistence upon expeditiousness in

the face of a justifiable request for delay" violates the right

to the assistance of counsel.'" Ibid. (quoting Morris, supra,

461 U.S. at 11-12, 103 S. Ct. at 1616, 75 L. Ed. 2d at 620).

In light of United State Supreme Court jurisprudence

solidifying the principle that a non-indigent defendant's Sixth

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Amendment right to counsel encompasses the right to be

represented by the counsel of his choosing, United States v.

Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L.

Ed. 2d 409, 416 (2006), our Supreme Court has underscored "'the

trial court must strike a balance between its inherent and

necessary right to control its own calendar and the public's

interest in the orderly administration of justice, on the one

hand, and the defendant's constitutional right to obtain counsel

of his own choice, on the other.'"2 Hayes, supra, 205 N.J. at

538 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App.

Div.), certif. denied, 101 N.J. 266 (1985)). The principles

guiding this inquiry 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

2
We note a "defendant's Sixth Amendment right to counsel of
his or her choice, however, 'does not extend to defendants who
require counsel to be appointed for them.'" Miller, supra, 216
N.J. at 62 (quoting Gonzalez-Lopez, supra, 548 U.S. at 151, 126
S. Ct. at 2565, 165 L. Ed. 2d at 421). Where a defendant
obtains assigned counsel, the defendant's "right to be
represented d[oes] not entail the right to a public defender of
his [or her] choice." Id. at 63.

8 A-5019-12T4
 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.

[Ibid. (quoting Furguson, supra, 198 N.J.
Super. at 402 (quoting 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))).]

See also Miller, supra, 216 N.J. at 47-48 (adopting the

standards recited in Hayes).

Before determining whether to grant or deny a trial

adjournment because of counsel's unavailability, a trial judge

shall engage in "'a balancing process informed by an intensely

fact-sensitive inquiry.'" Miller, supra, 216 N.J. at 66

(quoting Hayes, supra, 205 N.J. at 538). "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." State v. Kates, 216

N.J. 393, 396-97 (2014). However, the absence of this analysis

results in a one-sided and, consequently, arbitrary

determination. See ibid.

In discussing this matter, the trial judge noted the age of

the case and suggested counsel should have known better because

9 A-5019-12T4
"an official adjournment" had not been issued. The import of

such comments is a denial of the request. However, the trial

judge referred the adjournment request to the presiding judge

for consideration. See R. 1:33-6(b) (providing the presiding

judge of a unit "shall be responsible for the expeditious

processing to disposition of all matters filed within that

unit"). The lack of a record from this review precludes our

assessment of what occurred. However, the State's argument does

not support a conclusion the presiding judge undertook the

necessary weighing of the relevant facts. Moreover, the reasons

recited by the State on appeal, as support for what it believes

was a reasoned exercise of discretion for the trial proceeding,

address only calendar considerations, omitting any analysis of

the Furguson factors, as mandated by Hayes.3 We may not

speculate on possible reasons justifying the denial of the

adjournment request; "[i]t was incumbent upon the trial court to

3
The State lists the following as considerations as
enumeration by the trial judge in declining to adjourn the
trial: the age of the case; the trial had been listed for a
significant period of time; the trial was to commence in a
little more than a week and the judge had allowed two weeks for
its completion; the presiding judge rejected the adjournment
request; the associate worked in the same firm as the partner
and was an experienced defense attorney; the associate was
familiar with defendant's case; and the associate was prepared
to proceed to trial.

10 A-5019-12T4
develop that record . . . ." State v. Kates, 426 N.J. Super.

32, 53 (2012), aff'd, 216 N.J. 393 (2014).

In the absence of the necessary factual analysis prior to

the denial of an adjournment request to reschedule trial because

of counsel's unavailability, an abuse of discretion results. In

this matter, we conclude both reviewing judges failed to

deliberately balance the competing interests and give weight to

defendant's right to be represented by counsel of his choice.

See Kates, supra, 216 N.J. at 397 ("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.").

When the right to counsel is wrongfully denied, it is not

necessary to inquire as to effectiveness of counsel or whether

defendant suffered actual prejudice in the ensuing proceedings.

"Deprivation of the right is 'complete' when the defendant is

erroneously prevented from being represented by the lawyer he

wants, regardless of the quality of the representation he

received." Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct.

at 2563, 165 L. Ed. 2d at 419. See also Kates, supra, 426 N.J.

Super. at 46 (acknowledging "the availability of 'other

competent counsel'" is a factor in the analysis, but is "no

11 A-5019-12T4
substitute by itself for the constitutional right to choose

counsel"). Accordingly, such "a structural error affects the

legitimacy of the entire trial . . . ."4 State v. Purnell, 161

N.J. 44, 61 (1999).

We conclude the appropriate remedy on the record before us

requires that we reverse defendant's conviction and remand this

matter for a new trial. See State v. Gibson, 219 N.J. 227, 241-

42 (2014); see also Kates, supra, 216 N.J. at 397 ("[T]here may

have been reason to deny defendant's request for a continuance

based on the [Furguson] factors. But no analysis was conducted.

. . . [Thus], the summary denial of defendant's request, with

no consideration of the governing standard, amounts to error and

requires a new trial." (citation omitted)).

Reversed and remanded for a new trial.

4
"Deprivation of counsel of choice is considered a
'structural error,'" because "the consequences of deprivation
are 'necessarily unquantifiable and indeterminate.'" Kates,
supra, 426 N.J. Super. at 44 (quoting Gonzalez-Lopez, supra, 548
U.S. at 150, 126 S. Ct. at 2564, 165 L. Ed. 2d at 420).

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