STATE OF NEW JERSEY v. ERICK K. KIBUUKA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERICK K. KIBUUKA a/k/a

ERIC K. KIBUUKA,

Defendant-Appellant.

_______________________________

November 12, 2013

 

 

Before Judges Lihotz and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-0925.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a bench trial, defendant Erick K. Kibuuka appeals from the final amended judgment of conviction (JOC), entered on March 23, 2012, for third-degree defrauding the administration of a drug test, N.J.S.A. 2C:36-10(d). Defendant maintains the trial judge's failure to explore his request to obtain private legal representation violated his constitutional rights. Defendant also maintains the sentence imposed was "manifestly excessive." We reject these arguments and affirm.

On December 2, 2008, a Cape May County Grand Jury charged defendant with one count of defrauding the administration of a drug test, N.J.S.A. 2C:36-10(d). The charge was issued after defendant, while on probation, was directed to provide a urine sample, and his probation officer allegedly observed him pouring something into the urine sample bottle. The probation officer confiscated the specimen bottle, which was not warm to the touch, and the second bottle in defendant's possession, the remaining contents of which, defendant drank prior to its seizure.

Following a jury trial, defendant appealed his conviction. This court reversed on April 1, 2011, because of flawed jury instructions.

On remand, the case was reassigned to Judge Raymond A. Batten. On the date scheduled for trial, immediately prior to jury selection, defendant maintained his innocence and expressed dissatisfaction with his attorney, whom he asserted was unresponsive to his inquiries and "not interested" in his defense. Defendant requested an adjournment so he could retain private counsel. Judge Batten extensively examined defendant to discern the reasons for his request. Defendant claimed he had not been "represented fairly, treated fairly in the whole process" and was not comfortable with his attorney.

Judge Batten noted reversal of defendant's earlier conviction did not stem from allegations directed to counsel's performance. He also rejected defendant's claim he was unaware the trial was scheduled to start, because the order entered following the September 8, 2011 pretrial conference contained the scheduled trial dates on the same page as defendant's signature acknowledging receipt of the order. Defendant again renewed his request for "counsel I feel comfortable with."

Judge Batten denied the request noting defendant made no factual showing counsel's representation was deficient. He concluded: "At this late date, I can only suspect . . . that any expression of dissatisfaction with counsel by you is a delay tactic and this case is old. I have a duty to try this case[.]"

Defendant elected to waive his right to a jury trial and elected a bench trial, which was held that day. At the close of evidence, the judge found the State carried its burden and proved defendant was guilty beyond a reasonable doubt of defrauding the administration of a drug test. The judge imposed a four-year prison sentence and assessed applicable fines and penalties. On appeal, defendant argues:

 

POINT ONE:

 

THE TRIAL COURT ERRED BY FAILING TO INQUIRE INTO MR. KIBUUKA'S REQUEST TO HIRE A PRIVATE ATTORNEY.

 

POINT TWO:

 

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

 

The New Jersey Supreme Court recently examined a challenge similar to the issue presented for review. In State v. Miller, __ N.J. __, __ (2013) (slip op. 2), the defendant claimed the trial court's denial of an adjournment request deprived him of the effective assistance of counsel of his choice in violation of his Sixth Amendment rights. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."); see also N.J. Const. art. I, 10 ("In all criminal prosecutions the accused shall have the right . . . to have the assistance of counsel in his defense."). The Court reviewed the principles "governing a trial court's exercise of its discretion to grant or deny adjournments" and reaffirmed the obligation to apply the balancing test set forth in State v. Hayes, 205 N.J. 522, 537-38 (2011). Id. at 3-4. The Court held, "when a defendant seeking an adjournment asserts an inadequate opportunity to confer with new counsel, the trial court should consider the factors enumerated in Hayes, carefully weighing the competing interests raised by the factual setting of the individual case." Ibid. (citing Hayes, supra, 205 N.J. at 538, in turn citing State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985)).

The Court concluded "a trial court's abuse of discretion in denying an adjournment request does not require reversal absent a showing of prejudice." Id. at 4 (citing Hayes, supra, 205 N.J. at 537-39). Actual prejudice cannot be anticipated, but must be based upon the actual events at trial. A presumption of prejudice is limited solely to those "cases involving the complete denial of the right to counsel." Id. at 24 (quoting State v. Bey, 161 N.J. 233, 255-56 (1999). See also United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 2044, 80 L. Ed. 2d 657, 664 (1984) (citation omitted); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard set forth in Cronic).

Further, a defendant's guarantee of the right to an attorney "does not command, . . . he be given the attorney of his choice. Nor does it require that his legal representation be changed at his whim." Miller, supra, slip op. at 27 (quoting State v. Wiggins, 291 N.J. Super. 441, 451-52 (App. Div.), certif. denied, 146 N.J. 568 (1996) (citations omitted)). The constitutional right to counsel does not include "a 'meaningful relationship' between a criminal defendant and his or her attorney." Id. at 30.

Accordingly, the constitutional guarantee of effective assistance of counsel mandates competent and loyal service to the client in a setting that does "not 'preclude the giving of effective aid in the preparation and trial of the case.'" Fritz, supra, 105 N.J. at 57 (quoting [State v. ]Sugar, 84 N.J. [1,] 17 [(1980)]). The right to effective assistance does not, however, require a court to accommodate a defendant's preference of assigned counsel. Nor does it require an interaction between attorney and client that gives rise to a "meaningful relationship" or a partnership between attorney and client that rises to the level of a "rapport." Morris [v. Slappy], 461 U.S. [1,] 13-14, 103 S. Ct. [1610,] 1617, 75 L. Ed 2d [610,] 621 [(1983)].

[Miller, supra, slip op. at 30.]

Hayes, supra, identified the need to "'strike a balance between [a trial court's] inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, . . . and the defendant's constitutional right to obtain counsel of his own choice[.]'" 205 N.J. at 538 (quoting Furguson, supra, 198 N.J. Super. at 402). Identifying some factors to be weighed in this consideration, the Court included:

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.

 

[Ibid. at 538 (quoting Furguson, supra, 198 N.J. Super. at 402).]

 

We apply these principles to this matter. Here, defendant had assigned counsel, who was well familiar of the facts in the case as he had represented defendant in his first jury trial. Judge Batten advised defendant the right to be represented did not entail the right to a public defender of his choice. Defendant suggested he wanted to obtain his own attorney. Although defendant was not asked the length of time necessary to accommodate his request, he likely could not formulate a specific time frame because over the preceding months he had taken no steps to locate private counsel, despite knowing trial had been scheduled.

This matter was not complex and pre-trial motions had been filed prior to the first trial. The record does not suggest any outstanding issues were ignored. When asked, defendant could not identify even one instance to illustrate his claimed concern counsel was "not interested in" the case. On the day scheduled for trial, the State stood ready with its witnesses and appointed counsel advised the court he was fully prepared for trial and able to proceed.

Our review concludes the trial court's denial of defendant's adjournment request resulted in no identifiable prejudice and was not "clearly unreasonable in the light of the accompanying and surrounding circumstances." Hayes, supra, 205 N.J. at 539 (quotation marks and citation omitted). Absent such a showing, defendant's bald assertions are insufficient to warrant relief.

Defendant also argues the sentence imposed was manifestly excessive because of an improper analysis and balance of applicable aggravating and mitigating factors. He contends Judge Batten erroneously rejected application of mitigating factors 1 and 2, N.J.S.A. 2C:44-1(b)(1) and (2), and placed improper emphasis on aggravating factors found to apply.

In our review of this issue, we determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of the guidelines. Id. at 365-66. State v. Roth, 95 N.J. 334, 356-66 (1984). Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.

When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "'not sit to substitute [our] judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court). The Court has succinctly expressed these principles in State v. Cassady, 198 N.J. 165 (2009), stating: "our task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'" Id. at 183-84. Applying this standard, we identify no basis to disturb the sentence imposed.

Judge Batten applied aggravating factors 3 ("The risk that the defendant will commit another offense[.]"), 6 ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[.]"), and 9 ("The need for deterring the defendant and others from violating the law."). N.J.S.A. 2C:44-1(a) (3), (6), (9). He considered defendant's prior criminal history, which included one indictable offense and four disorderly persons offenses. He noted prior probationary efforts were unsuccessful as defendant violated the same probationary sentence twice. Consequently, he concluded the presumption against imprisonment was inapplicable and the risk defendant would commit another offense was high. The judge identified the need to deter defendant and others from believing they could flaunt probation supervision efforts, by engaging in the type of conduct demonstrated by his conviction.

Regarding mitigating factors, the judge applied factor 4, there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense N.J.S.A. 2C:44-1(b)(4), after giving weight to defendant's substance abuse, depression and post-traumatic stress disorder. The judge specifically rejected the application of mitigating factor 1, requiring a finding defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1), and factor 2, requiring a defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). Rather, Judge Batten found serious harm resulted from defendant's conduct to defraud a drug test, which was likely motivated by drug use and abuse.

We agree with the trial judge that the proofs do not rationally support a conclusion defendant's conduct did not cause serious harm. Although defendant's conduct was not violent, it was egregious and threatened harm, as he attempted to defraud and defeat probationary monitoring designed to protect the public. We reject defendant's contention the trial court improperly applied and weighed the aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1(a) and (b). See State v. Ghertler, 114 N.J. 383, 387-88 (1989). We discern no support in the record for the claimed additional mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011).

In sum, we are satisfied Judge Batten's findings of aggravating and mitigating factors were supported by the record, the sentence complied with the sentencing guidelines of the Code of Criminal Justice, and the sentence was not manifestly excessive, nor a mistaken exercise of discretion. State v. Roth, supra, 95 N.J. at 363-65.

Affirmed.