STATE OF NEW JERSEY v. MICHAEL O'BRIEN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3500-07T43500-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL O'BRIEN,

Defendant-Appellant.

_________________________________

 

Argued April 27, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 07-112.

Matthew W. Reisig argued the cause for appellant (Reisig & Associates, attorneys; James P. Brady, on the brief).

Carey J. Huff, Monmouth County Assistant Prosecutor, argued the cause for respondent (Louis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael O'Brien appeals his conviction of his second offense for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. His appeal concerns the municipal judge's denial of an extemporaneous request to adjourn the trial, a ruling which he claims deprived him of his Sixth Amendment right to counsel of his choice.

Briefly stated, on the evening of July 21, 2007, defendant's vehicle was stopped on Route 35 by an Aberdeen Township police officer. The officer had observed the vehicle repeatedly and abruptly changing lanes and nearly striking the highway's cement barrier. Defendant was administered a breathalyzer test, and produced a .16% BAC reading, which is above the legal limits. He was issued a summons for DWI, as well as reckless driving, N.J.S.A. 39:4-96.

Defendant retained an attorney to represent him in the Aberdeen Municipal Court proceedings. The attorney ("the partner") is a certified criminal trial lawyer with extensive experience in defending DWI cases. He has his own law practice, working along with, at various times, one or more associates.

On November 14, 2007, the municipal prosecutor and an associate attorney from the defense counsel's law firm ("the associate") appeared in the municipal court. Defendant and the arresting police officer were also present. The partner was not present, because he was in another municipal court trying two older matters. After a conference with the municipal judge in chambers, counsel went out on the record. At that point, the associate addressed the court and made "a formal request on the record for an adjournment of this matter." Alluding to the earlier conference in chambers, the associate stated that he had "indicated some reasons why we were asking that this matter be carried one more time." The associate noted that defendant wanted the partner to represent him at the trial. The associate confirmed the client's desire by placing him under oath and conducting a brief voir dire on the subject.

The municipal judge denied the adjournment request, noting that the case was one of the oldest DWI matters on the court's docket. The judge recognized that the partner was in another court, but observed that the Rules of Court do not authorize the designation of individual trial counsel in non-civil matters. See Rule 4:5-1(c). The judge also noted that the associate was present and that he could start the trial in the partner's absence.

At that point, the associate moved to dismiss the case for lack of jurisdiction, contending that the events that gave rise to the motor vehicle stop did not originate in Aberdeen Township. To develop the facts on that threshold issue, the arresting police officer was called to the stand. The associate cross-examined the officer and established that he had first observed defendant's weaving vehicle in Keyport Township and that the eventual stop occurred in Aberdeen a short distance over the Aberdeen/Keyport border. On redirect examination, the prosecutor had the officer prepare a diagram of the pertinent street locations. The associate did not object to the diagram for the limited purpose of providing a visual depiction of the officer's testimony, so long as the court did not treat the diagram as dispositive of the jurisdictional issue. The judge agreed with the associate's proposed evidentiary limitation. The associate then orally argued the jurisdictional issue, requesting a dismissal of the summonses. The motion was denied.

At that point, the associate stated that "based upon the [c]ourt's denial, and I've discussed this with my client, the defendant is seeking to enter a conditional guilty plea[.]" Defendant agreed to plead guilty to the DWI offense, with a simultaneous dismissal of the reckless driving summons. Defendant would preserve his right to challenge the court's jurisdiction on appeal. The court and the prosecutor accepted those terms.

Defendant was then placed under oath, and his assent to the plea was placed on the record. Defendant did so after conferring with the associate, who defendant himself described to the judge in the transcript as "my attorney." The municipal judge then accepted the plea and sentenced defendant, a second-time DWI offender, to two years loss of his driver's license, community service, and various fines, costs, and monetary penalties. The sentence was stayed pending appeal.

Defendant sought de novo review of his conviction in the Law Division. He did not appeal the jurisdictional ruling, but instead argued that his constitutional right to counsel of his choice under the Sixth Amendment was violated by the municipal court's denial of an adjournment. Defendant principally relied upon the United States Supreme Court's opinion in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), which held that the Sixth Amendment had been transgressed when a federal district judge had refused to allow a criminal defendant's chosen out-of-state attorney to appear pro hac vice in the case. After considering supplemental briefs on the implications of Gonzalez-Lopez and oral argument, the Law Division judge concluded that the municipal court's adjournment denial in this particular case had not violated the Sixth Amendment, nor had it violated the holding of Gonzalez-Lopez. The DWI conviction was therefore sustained.

In his present appeal, defendant argues that the Law Division misapplied Gonzalez-Lopez and that the municipal judge was obligated under the Sixth Amendment to adjourn the trial to allow the partner to try the case instead of the associate. The defense stresses the partner's personal expertise in trying DWI matters, noting that, by comparison, the associate had never tried a DWI case before. Defendant maintains that there was no urgency in the trial going forward, emphasizing that the State's second anticipated witness---the police officer who had administered the breathalyzer---was not present in court that evening.

Having fully considered defendants' constitutional and other related arguments, we affirm his DWI conviction, substantially for the sound reasons set forth in Law Division Judge Anthony Mellaci's detailed oral opinion of March 20, 2008. We add only a few comments.

In general, trial judges have plenary authority to schedule court proceedings. As part of its duties, a court "has the power to tightly control its calendar to assure the efficient administration of the criminal justice system." State v. Ruffin, 371 N.J. Super. 371, 388 (App. Div. 2004). Rulings on requests to adjourn a trial are discretionary and do not amount to reversible error unless the reviewing court finds that the trial court abused its discretion. State v. Garcia, 195 N.J. 192, 196 (2008); see also State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971).

To be sure, "[t]he Sixth Amendment to the United States Constitution provides that 'in all criminal prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance of [c]ounsel for his defen[s]e.' U.S. Const. amend. VI. The New Jersey Constitution guarantees the same right in nearly identical language. See N.J. Const., art. I, 10." State v. A.O., 198 N.J. 69, 81 (2009). However, the right of a defendant to choose his own counsel is "not absolute and cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same." State v. Harris, 384 N.J. Super. 29, 59 (App. Div.) (internal quotations omitted) (quoting State v. Furguson, 198 N.J. Super 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985)), certif. denied, 188 N.J. 357 (2006). See also Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140, 148 (1988) (holding that "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers"); State v. Crisafi, 128 N.J. 499, 517 (1992) (noting that "[a] defendant does not enjoy an unencumbered right to counsel of his or her choice"); State v. Ortisi, 308 N.J. Super. 573 (App. Div.), certif. denied, 156 N.J. 383 (1998) (same).

As Judge Mellaci correctly recognized, these well-settled principles were not repudiated by the Supreme Court's opinion in Gonzalez-Lopez. The Supreme Court specifically held in that case that the trial court's denial of defense counsel's pro hac vice application was reversible error of a constitutional magnitude under the Sixth Amendment. Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct. at 2563, 165 L. Ed. 2d at 419. However, the Court qualified its holding, observing that "[n]othing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them." Id. at 152, 126 S. Ct. at 2565, 165 L. Ed. 2d at 421.

The Court specifically noted in Gonzalez-Lopez that it has "recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, [Wheat, supra, 486 U.S.] at 163-164, 108 S. Ct. 1692, 100 L. Ed. 2d 140, and against the demands of its calendar, Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)." Id. at 152, 126 S. Ct. at 2565-66, 165 L. Ed. 2d at 421 (emphasis added). The Court added that "[n]one of these limitations on the right to choose one's counsel is relevant here [because t]his is not a case about a court's power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant's first choice of counsel." Id. at 152, 126 S. Ct. at 2566, 165 L. Ed. 2d at 422 (emphasis added). Thus, the Supreme Court in Gonzalez-Lopez expressly acknowledged that an accused's presumptive constitutional right to counsel of his choice may properly yield to a court's efficient administration of its trial calendar. That is exactly what is involved here.

Although it has been suggested to us that the associate appeared in municipal court on November 14, 2007 as a mere courtesy, the court and opposing counsel were entitled to expect that the associate, who is admitted to the bar of this State and who is part of defense counsel's law practice, was there to represent and advocate the interests of his firm's client in whatever manner that proved necessary that evening. Indeed, the associate's efforts in court that evening, as reflected in the municipal transcript, supports Judge Mellaci's observation that the associate is an attorney who is "highly competent, professional and capable." The court's denial of the jurisdictional motion on its merits does not detract from the overall quality of the associate's advocacy on the discrete tasks that he undertook that evening for his firm's client.

We do not overlook that the associate had never tried a DWI case before, that the partner is an experienced and certified trial attorney, and that the partner had commitments for other clients in other courts that evening. However, as Judge Mellaci found, the defense did not make the trial adjournment request in advance of the November 14 proceeding. Instead, the request was made extemporaneously. The trial already had been adjourned previously, for reasons that we assume were entirely justified. Under those circumstances, the municipal judge acted within his zone of discretion in requiring the trial to go forward. The fact that the prosecution only had one of its two trial witnesses on hand is not dispositive. The trial could be started that night and then completed on a later date with the remainder of the witnesses, thereby efficiently reducing the amount of court time consumed on the continuation date.

Consistent with Gonzalez-Lopez, the municipal judge had the constitutional authority in this setting "to make scheduling and other decisions that effectively exclude a defendant's first choice of counsel." Ibid. Moreover, we agree with the Law Division that the authority was not abused. Although the Law Division's opinion did not comment on each of the discretionary adjournment factors listed in Furguson, supra, 198 N.J. Super. at 402, we are satisfied that the overall circumstances here sufficed to justify the adjournment denial.

 
Defendant's conviction of DWI is affirmed, and the matter is remanded to the Law Division for a forthwith vacation of the stay.

The associate is not the same associate who signed and authored defendant's appellate brief.

Although the explicit terms of the conditional plea covered only the jurisdictional ruling, the State does not contend that defendant waived his right to appeal the adjournment denial.

Defendant also argues, for the first time on appeal, that the computer-generated notice issued for the November 14 court date did not include the word "trial" in it. The State objects to that document being considered because defendant did not move pursuant to Rule 2:5-5(b) to supplement the record to include the computerized notice. We need not address this argument because it was not raised below. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973); Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Even so, we note in passing that it is manifestly apparent from the municipal transcript that counsel and the court referred to and treated the proceedings as a trial, consistent with the presence of the arresting officer that evening as a State's witness. Even if the form notice omitted the word "trial," we are satisfied that omission made no difference in this case.

Although the instant DWI case is a quasi-criminal matter, we nevertheless shall apply the Sixth Amendment's principles regarding an accused's right to counsel. See State v. Hrycak, 184 N.J. 351, 363 (2005).

(continued)

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A-3500-07T4

 

May 15, 2009