STATE OF NEW JERSEY v. ANDRE WILLIAMS

(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NOT FOR PUBLICATION WITHOUT THE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-4528-07T44528-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE WILLIAMS,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-06-0821.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lisa M. Commentucci, Designated Counsel, on

the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried by a jury, defendant Andre Williams was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3). For sentencing purposes, the court merged the former with the latter and imposed thereon a five-year term with an eighteen-month parole bar. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs, at about 10:15 p.m. on January 30, 2007, while on patrol in an unmarked police vehicle, Paterson Detectives Miccinilli and Curveny approached the intersection of 17th Avenue and East 28th Street, where they observed two individuals standing in the middle of the roadway. As the car approached, traveling about 20 miles per hour without siren or lights activated, the two men began to walk towards the right side of the street. When Miccinilli exited the vehicle, wearing a police badge around his neck and identifying himself as a police officer, defendant removed a clear plastic bag from his jacket pocket, dropped it to the ground, and stepped back. Because the bag appeared to contain crack cocaine, Miccinilli detained defendant while Curveny retrieved the bag, which, in turn, contained fifteen blue-tinted baggies of a substance later determined to be crack cocaine. A search of defendant's person yielded another plastic bag of CDS, also containing fifteen baggies of crack cocaine, in his right pocket, but no weapons or other contraband were found. The other individual with defendant, Tyshime Brewington, was detained on outstanding warrants for unpaid fines. The total weight of the crack cocaine retrieved by the police was less than one-half ounce.

Defendant offered a different account. As he was walking home from a grocery store, a police car, with Brewington already sitting in it, approached defendant in the area of 29th Street and 17th Avenue. When the police officer asked defendant his name, defendant kept walking and refused to answer. The officer then slammed defendant against a car, searched and arrested him. The officer also took defendant's cell phone and keys, but threw down his plastic grocery bag of "Pampers, wipes, food and some milk." Defendant denied possessing CDS.

Evidently crediting the State's version, the jury convicted defendant of both of the drug offenses charged. On appeal, defendant presents the following issues, none of which was raised below:

I: THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO COUNSEL BY NOT GRANTING AN ADJOURNMENT TO ALLOW HIM AN OPPORTUNITY TO FIND COUNSEL OF HIS OWN CHOOSING. (NOT RAISED BELOW).

II: THE DEFENSE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO PROVE THE REQUISITE INTENT TO DISTRIBUTE NARCOTICS. (NOT RAISED BELOW).

III: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF TRIAL COURT DISCRETION. (NOT RAISED BELOW).

We have considered each of these claims in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

(i)

On the scheduled trial date, as jury selection was about to commence, defendant, for the first time, expressed dissatisfaction with trial counsel an assistant deputy public defender whom he no longer wanted representing him, but had not yet retained other counsel to try the case. Trial counsel, on the other hand, said he was surprised by this latest declaration of defendant who, just the day before, "seemed happy . . . with his case being tried." Counsel also represented he was well prepared to try the case.

Now, for the first time on appeal, defendant claims he was denied his right to counsel when the court refused sua sponte to adjourn the trial to afford him time to retain new counsel. We discern no abuse of discretion.

The right to retain counsel of one's choice is not absolute. State v. McLaughlin, 310 N.J. Super. 242, 258 (App. Div.), certif. denied, 156 N.J. 381 (1998). Although a defendant may substitute counsel for "good cause," State v. Ortisi, 308 N.J. Super. 573, 588 (App. Div.), certif. denied, 156 N.J. 383 (1998), the right to counsel of one's choice "'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. Furguson, 198 N.J. Super. 395, 401 (App. Div.) (quoting Smith v. United States, 288 F. 259, 261 (D.C. Cir. 1923)), certif. denied, 101 N.J. 266 (1985). Rather, a defendant must act with reasonable diligence when exercising the right to choose his or her own counsel. Furguson, supra, 198 N.J. Super. at 401; State v. McCombs, 171 N.J. Super. 161, 165 (App. Div. 1978), aff'd 81 N.J. 373 (1979). This is because

[t]he efficient administration of justice without unreasonable delay has great force and effect. The public has a strong interest in the prompt and effective operation of its judicial institutions. A trial court therefore must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant.

[Furguson, supra, 198 N.J. Super. at 401.]

Consequently, a trial court's decision to deny a request for an adjournment to permit a defendant to retain counsel of his choice will not be deemed reversible error absent a showing of an abuse of discretion which caused defendant a "manifest wrong or injury." Id. at 402. Relevant considerations in this regard include whether the defendant is acting in good faith, whether he contributed to the circumstances giving rise to the adjournment request, whether he had other counsel ready to try the case, whether he had a legitimate reason for the requested delay, or whether the delay is "dilatory, purposeful, or contrived." Id. at 401-02.

Analyzing these factors here, we are satisfied the trial judge did not mistakenly exercise his discretion by proceeding to trial. Most significant, defendant expressed displeasure with his counsel for the first time immediately before the start of trial, highly suggestive in our view, of an effort to "disrupt and delay the judicial process." State v. Reddy, 137 N.J. Super. 32, 35-36 (App. Div. 1975). Moreover, his complaints about counsel were vague and conclusionary and not timely made. In any event, defendant made no diligent effort to obtain new counsel, failed even to identify the availability of any particular counsel, and offered no proof of present financial ability to secure one. Thus, even if the trial had been postponed, defendant lacked a commitment from private counsel to represent him, much less to be prepared to try the case on the adjourned date.

Present counsel, on the other hand, was prepared to proceed, as he represented to the court:

. . . I told Mr. Williams yesterday that his case was going to be tried. He seemed happy that his case - - he seemed - - had no problem with this case being tried. Now he comes up and he says he's not ready for trial and I don't know why he's not ready, but he's had more than ample opportunity to discuss the matter with me.

. . . He's had the discovery. He knows what the police are going to - - what the police are expected to say. I don't know why he wants this adjournment, other than the fact that he doesn't want my services. But as far as the readiness of the case and the defense in this matter, I'm ready to proceed.

And the court responded in kind:

Mr. Williams has been incarcerated, I believe, since the date of his arrest, January 30th of 2007. That's over 10 months ago. As I read the indictment and as I know the case, because Mr. Williams has been before the Court on a number of occasions. This is a relatively simple case . . .

Mr. Williams was here yesterday. We had the checklist for trial conference. At no time did Mr. Williams express to this Court that he didn't want to go to trial. At no time did he express his displeasure with Counsel on the record. I see absolutely no reason to adjourn this case.

Under the circumstances, the trial judge's decision to proceed to trial was a reasonable exercise of discretion.

(ii)

Defendant next argues the evidence was insufficient to prove an intent to distribute. We disagree.

The testimony established that defendant possessed thirty individual baggies of crack cocaine, packaged within two clear plastic bags, each containing fifteen, blue-tinted baggies of crack cocaine. Moreover, when he was apprehended at 10:15 p.m. in the middle of an intersection with another individual, defendant was not in possession of any drug paraphernalia. In the opinion of Detective Miccinilli, a nine-year veteran of the Paterson Police Department who had conducted approximately 100 drug-related arrests, both the way the cocaine was packaged and the quantity involved "30 bags is a lot of crack cocaine" suggested an intent to distribute. Thus, viewing the evidence in its entirety, giving the State the benefit of all favorable inferences reasonably drawn therefrom, and recognizing that such evidence need not exclude "every other hypothesis except that of guilt," State v. Brown, 80 N.J. 587, 598 (1979), we are satisfied the evidence is sufficient to warrant conviction. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967).

(iii)

Lastly, defendant challenges his sentence as excessive essentially because of the imposition of the eighteen-month parole bar. We disagree.

This is defendant's third conviction for a CDS distribution-related crime. Although the State declined to seek an extended term, N.J.S.A. 2C:43-7, the judge found the aggravating factors of risk, deterrence and prior record, N.J.S.A. 2C:44-1(a)(3), (6) and (9), substantially outweighed the non-existent mitigating factors, to warrant the imposition of a parole ineligibility term. N.J.S.A. 2C:43-6(b). This determination, well supported in the record, does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363 (1984).

Affirmed.

 

In this regard, we note that a court may not require the Public Defender to assign new counsel whenever a defendant is dissatisfied with the attorney assigned to represent him, absent a showing of good cause. State v. Coon, 314 N.J. Super. 426, 438 (App. Div. 1998).

(continued)

(continued)

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A-4528-07T4

June 16, 2009