STATE OF NEW JERSEY VS. JAQUAN A. SUBER (17-12-1637, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3235-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAQUAN A. SUBER, a/k/a
AQUIL JAQUAN SUBER,

Defendant-Appellant.

Submitted October 19, 2020 — Decided December 11, 2020

Before Judges Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-12-1637.

Kathleen M. Theurer, attorney for appellant.

Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).

PER CURIAM
 Defendant appeals from his convictions following a jury trial , alleging

several evidential errors and challenging the denial of his request for an

adjournment of the trial to retain private counsel. After a review of the

contentions in light of the record and applicable principles of law, we affirm.

We derive our facts from the evidence presented at trial. In September

2017, the Frate family lived on the main floor of a home. Defendant rented the

downstairs apartment.

In the early morning hours of September 3, 2017, members of the Frate

family smelled gas coming from defendant's apartment. They had also smelled

gas several days earlier. Carol Frate and her son, Cody, unlocked the backdoor

entrance to the apartment and went inside where they observed the gas stove

was on without any flames. They also noticed a rope was tied to the door that

connected defendant's apartment to the Frate's residence. The rope was hooked

to a pillar and then to the stove; the end of the rope was in a liquid-filled bottle

on the floor in front of the stove. The Frates turned the stove off and opened the

outside door to air out the apartment. They went back into their home, taking

the rope and the liquid-filled bottle it was in. Later, when Carol heard defendant

return home, she went downstairs and told him he had to leave the apartment

because of the recent incidents.

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 At around 5:00 a.m., Frate called the police. When two Fort Lee Police

Department officers responded, Carol and Cody told the officers about

defendant leaving the stove on twice and their safety concerns. The officers

spoke with defendant, who admitted he left the stove on and had a dispute with

Frate about leaving the apartment. The officers informed him of the dangers of

leaving a gas stove on, but since the officers did not detect any odor of gas, they

left.

Prior to these events, Cody had contacted Fort Lee Detective Dennis

Conway regarding his stepbrother, Ronald, who had been missing for several

days. Conway told him to call again the next day if Ronald had not returned.

When Conway arrived at work on September 3, 2017, he learned Ronald was

still missing. After learning Ronald had been arrested several days earlier and

was incarcerated in the Bergen County jail, Conway and his partner, Detective

Dennis Pothos, went to the Frates' home at 10:00 a.m. to give them the

information.

After discussing Ronald's whereabouts, Carol told the detectives about the

incidents that occurred hours earlier, describing the string tied to the stove with

its other end in a liquid-filled bottle near the stove. Pothos told Frate they would

speak with defendant to make sure he was alright.

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 The detectives exited the home and turned left down the driveway towards

the backdoor of the downstairs apartment. Although the detectives were not in

uniforms, their badges were displayed, and they were wearing shirts bearing the

Fort Lee Police Department emblem. When defendant answered the door, he

asked why they were there and whether they were going to arrest him. The

detectives said they were not arresting him and just wanted to ask some

questions.

Defendant first stated he could not recall leaving the stove on and then

said he might have when he was cooking. When the detectives asked him

whether he was mixing flammable fluids, defendant first said he could not

remember and then said he might have because he was bored. Defendant denied

tying a string to the stove.

As the detectives were speaking with defendant, Pothos noticed he was

giving evasive answers and blocking access to the apartment. Pothos said "262"

to Conway, which signaled a need to call a helpline telephone number. This

telephone number gives Bergen County law enforcement the ability to speak

with someone at Bergen Regional Medical Center and ask for guidance on how

to handle certain situations involving individuals who may require mental health

counseling. In some instances, a professional psychologist is sent out to speak

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with the party or the officer may be directed to transport the individual to the

medical center to be evaluated. Conway called the helpline and Pothos

requested a marked unit.

When police officer Andrew Lakawicz arrived, defendant grew more

agitated. Lakawicz was wearing a body microphone and the device was

recording when Pothos repeated the questions he had asked defendant.

Defendant gave similar responses—that he might have left the gas on

accidentally while cooking, he might have been mixing fluids in a bottle, and

that he did not tie a string to the stove.

Defendant refused to let Pothos perform a protective search of him and

closed the storm door. Pothos and Lakawicz then entered the apartment and saw

defendant grab a handgun from the top of the refrigerator and turn towards the

officers. Pothos yelled that defendant had a gun and pushed Lakawicz outside.

Pothos then positioned himself behind the detached garage. After taking cover,

the officers drew their weapons as defendant stood in the doorway. A street

camera recorded footage of defendant standing in the doorway pointing his gun

at Pothos. The detective repeatedly asked defendant to put the gun down, saying

he was there to help him.

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 Defendant closed the storm door and Pothos requested backup. When

defendant re-opened the door, he again pointed his weapon at Pothos and the

other officers on the scene. A neighbor on the second floor of his home recorded

on his cell phone defendant pointing his gun at Pothos, Conway, and a third

officer.

At one point, defendant left the doorway and the officers lost sight of him.

The street camera recorded defendant standing near the garage pointing his gun

at Pothos, who was in the back yard. Upon realizing this, Pothos immediately

moved to the front yard.

Defendant also moved to the front yard and fired his weapon towards

Pothos and two other officers. The three officers returned fire. Pothos's shot

struck defendant, causing him to drop to the pavement. When defendant raised

his gun again, Pothos discharged two more rounds. The shots struck defendant

again and caused him to drop his weapon. Nevertheless, he got up and ran

towards Pothos. Pothos kicked defendant in the stomach as he approached, and

defendant took off towards the street. Pothos caught up to defendant and tackled

him from behind. Other officers at the scene helped restrain defendant as he

resisted arrest.

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 Defendant was charged in an indictment with the following offenses:

third-degree aggravated assault by pointing a firearm at a law enforcement

officer, in violation of N.J.S.A. 2C:12-1(b)(9) (counts one through seven);

fourth-degree aggravated assault with a firearm, in violation of N.J.S.A. 2C:12-

1(b)(4) (counts eight and nine); first-degree attempted murder, in violation of

N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1) (counts ten through twelve); third-

degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3)(a) (count thirteen);

second-degree possession of a weapon for an unlawful purpose, in violation of

N.J.S.A. 2C:39-4(a) (count fourteen); first-degree possession of a weapon

without having obtained a permit, in violation of N.J.S.A. 2C:39-5(b) and

2C:39-5(j) (count fifteen); and second-degree possession of a firearm by a

previously convicted person, in violation of N.J.S.A. 2C:39-7(b) (count sixteen).

Counts eight and ten were later dismissed.

During a court proceeding on November 5, 2018, the court considered

motions filed by defense counsel and defendant. Because of the pro se filings,

the court inquired of defendant whether he intended to represent himself.

Defendant replied no.

Defense counsel then advised the court that defendant wanted a different

public defender. The judge responded: "We've been over this four times now

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. . . . You've asked the Public Defender's Office to change your counsel. They've

told you . . . no. You don't have the right to pick your attorney."

Defendant advised the court he had spoken to the "head public defender"

and he was waiting for a response as to his request for a change of counsel.

Defense counsel stated he too had spoken to the head of the office who stated

that defendant could not "pick and choose his attorney. Either he can hire private

counsel, he can continue with me or he can make an application to . . . go pro se

. . . ."

The judge noted defendant had twice stated he did not wish to represent

himself. He advised defendant that the Public Defender's Office was not going

to assign him a new attorney. After ruling on the motions, the judge reminded

the parties of the December 4, 2018 trial date and his expectation that jury

selection would begin that day, with opening statements to occur immediately

following the seating of a panel.

On Tuesday, December 4, the parties convened for trial. The court

acknowledged the receipt of a letter from defendant the previous Thursday

requesting to represent himself with standby counsel from the Public Defender's

Office. Defendant had also submitted a number of motions on December 4.

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After a review of the documents, the court concluded the motions were the same

applications previously presented at the November 5 hearing.

The court advised defendant he would conduct a hearing to determine

whether defendant was "exercising a knowing, intelligent and voluntary waiver

of his right to counsel." In response, defendant said he wanted to retain private

counsel.

The judge reminded defendant his trial was starting that day and the "time

to retain a private attorney expired long ago." Defendant admitted he did not

have a private attorney ready to begin that day, but he intended to retain one and

needed an adjournment. He conceded he had not previously asked the court for

the opportunity to retain private counsel.

Defense counsel informed the court he had spoken with the attorney

defendant had contacted and learned that counsel was currently involved in a

three-defendant murder trial in Passaic County. The potential new attorney said

"he would consider getting involved [if] the [c]ourt . . . g[a]ve an extension of

time." Defense counsel confirmed the Passaic County case had started two

weeks earlier and he did not know when it was expected to conclude.

Because defendant had told the court previously that he did not wish to

proceed pro se, the court asked him about his change of mind. Defendant stated

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he had "evidence that [he] wanted to put into motions and [he] had case law[]

[he] wanted to put in motions." The judge reminded defendant, as he had told

him previously, that it was not appropriate to address the specific issues through

pretrial motions. When the court asked again why he wanted to proceed pro se,

defendant asserted defense counsel had not obtained records he asked him to

obtain and had not retained any law enforcement witnesses to support his

defense. Defendant also maintained there was a "severe breakdown" in

communications with defense counsel.

After conducting a comprehensive hearing, the judge denied the

application, finding it was made to delay the trial and the "alleged waiver was

[not] . . . knowing and voluntary and intelligent." The judge found defendant

was not capable of representing himself and further noted defendant conceded

it was not in his best interest to represent himself.

The next morning, prior to the start of jury selection, the court denied

defendant's request for an adjournment to retain private counsel. In his oral

decision on December 5, 2018, the court stated:

Yesterday for the first time defendant asked to adjourn
the trial so that he could retain private counsel.
Procedurally this trial was scheduled for . . . [December
4, 2018] on October 9[], 2018 and there was significant
motion practice, in November I decided three motions
that were filed by the defense. I never . . . heard a

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request by . . . defendant to retain private counsel until
. . . the day the trial was scheduled to start . . . . [I]t is
my firm belief that this adjournment request, which was
made at the very last minute, is merely an attempt to
postpone the start of this trial.

[Defendant] waited until . . . the day of trial to . . . make
the request for the first time. Defendant has
experienced trial counsel assigned to defend him. Mr.
Weichsel has decades of trial experience, I've seen him
try cases in this . . . courtroom and he is . . . eminently
qualified to . . . represent . . . defendant in this case and
he is prepared to begin the trial.

From what I understand[,] . . . defendant has not
actually retained private counsel. That he has contacted
an attorney who might . . . some time in the future get
involved in this case, but . . . certainly is not, for
professional reasons as I understand it, not prepared or
able to . . . participate in the trial at this time or[,] . . .
as far as . . . we know[,] even in the . . . near future. We
have no idea if that . . . counsel would actually become
involved in the case.

What I do know for sure is that . . . changing counsel at
this point would result in a very lengthy adjournment
of the trial because . . . of the trial schedule that . . . I
have through . . . 2019, but also because . . . the new
counsel would need . . . time to prepare for trial.

So, for all of those reasons, most of all because the
request for the adjournment was as untimely as . . . you
could ever have, the request for an adjournment is
denied.

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 The jury convicted defendant on fourteen counts. He was sentenced to an

aggregate term of forty-five years in prison with a thirty and one-half-year

period of parole ineligibility. This appeal followed.

Defendant presents the following issues for our consideration:

POINT I. DEFENDANT'S REQUEST FOR AN
ADJOURNMENT OF THE INITIAL TRIAL DATE,
IN ORDER TO OBTAIN COUNSEL OF HIS
CHOOSING, WAS IMPROPERLY DENIED.

POINT II. INTRODUCTION OF OTHER CRIMES
EVIDENCE DEPRIVED DEFENDANT OF A FAIR
TRIAL.

POINT III. THE COURT ERRED IN FAILING TO
EVALUATE THE ADMISSIBILITY OF
DEFENDANT'S OUT OF COURT STATEMENTS AS
REQUIRED BY N.J.R.E. 104(C).

POINT IV. REVERSAL IS REQUIRED BECAUSE
THE STATE PRESENTED INADMISSIBLE LAY
OPINION TESTIMONY THAT INCLUDED LAW
ENFORCEMENT OFFICERS' OPINIONS
REGARDING DEFENDANT'S GUILT AND
INTENT.

In State v. Kates, 216 N.J. 393, 395-96 (2014), our Supreme Court

established the analysis required to determine whether a defendant was deprived

of his or her constitutional right to counsel of choice. The Court noted a

defendant's right to counsel of choice was not absolute and could be balanced

against the demands of a court's calendar. Id. at 396. The Court also instructed

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trial courts to consider the factors outlined in State v. Furguson, 198 N.J. Super.

395, 402 (App. Div. 1985) when assessing a defendant's request for a

continuance to retain counsel. Ibid. 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, 198 N.J. Super. at 402 (quoting U.S. v.
Burton, 584 F.2d 485, 490-91 (1978).]

As the Appellate Division stated in State v. Kates, 426 N.J. Super. 32, 47

(App. Div. 2012), the deprivation of the right to choose counsel only occurs

"when the court mistakenly exercises its discretion and erroneously or arbitrarily

denies a continuance to retain chosen counsel." "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. "

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Kates, 216 N.J. at 396-97 (citations omitted). Further, "[t]rial judges retain

considerable latitude in balancing the appropriate factors." Id. at 397 (citing

State v. Hayes, 205 N.J. 522, 537-39 (2011)). As a result, trial judges "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.'" Ibid. (citing

Furguson, 198 N.J. Super. at 402).

Defendant contends he requested an adjournment of the trial and time to

hire private counsel on December 4, 2018. He asserts he contacted private

counsel who informed him he could provide representation if the trial was

adjourned.

Defendant recognizes the court engaged in a colloquy with him regarding

the rights and responsibilities he would have if he proceeded pro se. However,

defendant maintains the court decided the application without engaging in the

requisite analysis of the Furguson factors. According to defendant, the court

ignored his previous request to retain private counsel a month before trial. We

are unpersuaded.

Before the long-scheduled trial day, defendant made several requests for

the Public Defender's office to assign him a different public defender. The first

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time he asked to retain private counsel was on December 4, 2018, the first day

of jury selection.

As described above, the court addressed defendant's request for a different

public defender on November 5, 2018. The court reiterated to defendant that he

was previously informed that he did not have the right to choose a different

assigned counsel. During the hearing, defense counsel noted the Public

Defender's Office made clear defendant's options were to: hire private counsel;

continue with defense counsel; or make an application to proceed pro se. At no

time during this hearing did defendant request the opportunity to retain private

counsel.

We are satisfied the trial judge did not mistakenly exercise his discretion

in denying defendant's request for an adjournment. In his oral decision, the

judge thoughtfully analyzed the appropriate factors and considered the demands

of his calendar.

In addressing the Furguson factors, the judge found: a lengthy delay was

likely because the court had a busy trial schedule and replacement counsel had

not been retained yet; the court firmly believed the request was purposefully

made to postpone trial; defendant did not ask to retain private counsel until the

first day of trial; and, since replacement counsel had not yet been retained, "other

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competent counsel [was not] prepared" to begin trial. In addition, the court

noted that changing counsel "would result in a very lengthy adjournment of the

trial because . . . of the trial schedule . . . through . . . 2019, but also because

. . . the new counsel would need . . . time to prepare for trial." We discern no

error in the denial of an adjournment under these circumstances.

Defendant's challenge of several evidential issues also lacks merit. He

asserts first that it was error to permit testimony regarding his actions of leaving

the gas stove on and mixing flammable fluids because it was impermissible prior

bad act evidence. Defendant contends the court failed to conduct the requisite

Cofield1 and N.J.R.E. 404(b) analyses.

Defendant did not request those analyses nor object to the testimony. We

review therefore for plain error, only reversing if the error is "clearly capable of

producing an unjust result." R. 2:10-2.

Rule 404(b) provides that

evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.

1
State v. Cofield, 127 N.J. 328 (1992).
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Cofield established a four-pronged test to determine the admissibility of

evidence under the rule.

Defendant was not charged with any crimes relating to the flammable

liquids or gas discharge. The testimony was not presented to show defendant

was predisposed to commit a crime. Instead it was introduced as Pothos narrated

the sequence of events – what led the detectives to defendant's apartment and

what occurred thereafter. Moreover, there was ample evidence to support

defendant's convictions. The references to the gas stove do not constitute plain

error.

During the trial, the State played several statements made by defendant

during the confrontation with police. 2 The statements were recorded on

2
In the video, defendant is heard making the following statements:

[Defendant]: Please don't, man. I'm not fucking playing
with you.

....

[Defendant]: . . . You shoot a[t] me, I'm shooting at you.

....

[Defendant]: I'm not fucking playing with you. I'm not
fucking playing with you all.

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Lakawicz's body microphone. There was no objection to the statements. On

appeal, defendant contends that because the recorded statements were made

without advisement of his Miranda3 rights, the court should have conducted a

N.J.R.E. 104 hearing to assess the voluntariness of the inculpatory statements.

We disagree.

When the detectives first spoke with defendant at his apartment door, he

conceded he was mixing flammable fluids. As discussed above, this was not an

inculpatory statement because defendant was not charged with any offenses

related to that conduct. In addition, that statement and the other recorded

statements were made by defendant during the confrontation with police as he

was pointing a gun and shooting at the officers. As defendant was not yet under

arrest, the requirement to apprise him of his Miranda rights was not triggered.

See Rhode Island v. Innis, 446 U.S. 291, 300-302 (1980) ("We conclude that the

Miranda safeguards come into play whenever a person in custody is subjected

to either express questioning or its functional equivalent."). Therefore, there

was no need for a Rule 104 hearing.

In turning to defendant's final argument, he contends the State elicited lay

opinion testimony from several officers, in violation of N.J.R.E. 701. He refers

3
Miranda v. Arizona, 384 U.S. 436 (1966).
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to the following trial testimony: Pothos's description of defendant being

"bladed" and his explanation of the term; Officer Gabriel Avella's testimony that

defendant pointed his gun at him and wanted to kill him; Pathos's statement that

defendant was "actively resisting" arrest; and Officer Kelsey Ford's detailed

description of what went through her mind after hearing a gunshot, her statement

when shown a photograph that defendant is aiming his weapon at the officers in

the picture photograph, and her testimony that after defendant was restrained,

she had "to get [her] EMT bag to save the person who just tried to murder [her]

. . . ."

Defendant argues the testimony was impermissible because the statements

expressed opinions that defendant was guilty of the charged crimes. He asserts

the officers' testimony was clearly capable of producing an unjust result and

deprived him of his right to a fair trial.

Because defendant only objected to the Avella statement, we review the

others for plain error. We review the trial court's admission of the Avella

statement for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011).

Lay opinion testimony is permitted under Rule 701 if it is "based on the

perception of the witness and . . . will assist the jury in performing its function."

State v. McLean, 205 N.J. 438, 456 (2011). A careful review of the statements

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reveals they were the respective officer's personal observations and perception.

Each of the officers testified to events during which they were present. The

officer's statements described their perceptions of defendant's actions as he was

running towards them, pointing a gun, and shooting at them. We discern no

error in the testimony.

Affirmed.

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