STATE OF NEW JERSEY v. GIOVANNI GONZALEZ

(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NOT FOR PUBLICATION WITHOUT THE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-1265-07T41265-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GIOVANNI GONZALEZ,

Defendant-Appellant.

____________________________

 

Submitted December 16, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-0914.

Curtis J. LaForge, attorney for appellant (Mr. LaForge and Loren LaForge, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Robyn B. Mitchell, of counsel

and on the brief).

PER CURIAM

Defendant appeals from a series of orders entered in the course of the disposition of his indictment for: (1) third-degree possession of a controlled dangerous substance, namely heroin, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3); (3) third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a); and (4) second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a).

Defendant appeals from the order of September 28, 2007, denying his motion to recuse the trial judge; the October 29, 2007 order denying his motion for an adjournment of trial; and the October 5, 2007 order denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm.

Defendant was indicted on the four drug-related offenses on June 28, 2004. However, further proceedings on that indictment were delayed pending defendant's trial on a homicide charge. That trial concluded on July 5, 2007, with a jury verdict of guilty of passion/provocation manslaughter. Defendant's attorney in his homicide trial was Curtis LaForge.

The trial judge conducted a status conference on the narcotics indictment on August 13, 2007. LaForge did not appear and it was unclear at that time whether the attorney would be representing defendant on the drug charges. Defendant formally retained LaForge on August 20, 2007. The trial judge agreed to the substitution of counsel but told LaForge that defendant's trial would proceed on September 4, 2007. LaForge assured the judge that he would be ready to proceed.

On August 28, 2007, however, LaForge sent a letter to the trial judge requesting an adjournment "so that [his] expert witness [could] have adequate time to review the site of the alleged drug transaction, and subsequently prepare a report about same." On September 4, 2007, which was supposed to have been the first day of defendant's trial, the judge denied the adjournment request, noting that defendant's case was "the oldest case on [his] list . . . ." Defendant's counsel represented that he wanted to retain a "surveillance and . . . drug expert[,] . . . [to] discuss the procedures that took place on the day of this arrest . . . ." The judge responded: "All right. Well, . . . all . . . that person needs to do is read the report." Defense counsel responded, "[y]es."

The trial judge agreed to schedule defendant's case as a backup to another trial that the judge estimated would take approximately two weeks, adding "but you never know what's going to happen." The judge then ruled that "the request for an adjournment at this point is denied. Back up trial. And we'll keep your office posted as to how things progress for this week and next week." Counsel raised no objection to this ruling.

The judge's other trial was resolved and defendant's trial was scheduled to start on September 10, 2007. On that date, LaForge argued two motions seeking both an adjournment and the recusal of the trial judge. In support of his adjournment request, LaForge stated that he needed to have his expert examine the binoculars used in the surveillance that led to defendant's arrest, and requested "an adjournment of at least two months . . . ." LaForge requested that, if the judge denied an adjournment of trial, he be permitted to "opt out of this case" and allow Terence Scott, the attorney previously assigned to represent defendant on this indictment, to handle the matter. LaForge noted that Scott had "been in this case for over three years[,]" and had to be "much more ready" to go to trial.

In denying defendant's renewed adjournment request, the judge stated:

This case was listed for last week . . . . And according to our records, Mr. LaForge was the attorney of record on numerous prior listings of this for the drug case. But we didn't really pay much attention to the drug case because the murder case was going to be tried first. It wouldn't help resolve the total package of charges against Mr. Gonzalez if we disposed of the drug case. It would still leave the murder case to be done.

And defense counsel in . . . this drug case for many, many court appearances before Mr. LaForge was on the horizon was of the view that the drug case should wait the outcome of the murder case, that . . . the drug case might get resolved as a result of that.

No one asked for an adjournment. That was . . . what the attorneys on both sides thought was the way the matter should proceed since . . . both cases were of about the same age.

After the murder case was decided, this became the oldest case by far on my log list of cases. And at a date in July, I don't have the date on my file, on the record according to the court action sheets, we gave the date for this when Mr. LaForge was present o[n] August the 16th. No. I'm sorry. August the 13th. Mr. LaForge didn't appear on that day, but . . . Mr. Gonzalez was here, and his family members were here, and he indicated that he was of the opinion that Mr. LaForge represented him on the drug case as well as the murder case as was as I indicated my understanding, although Mr. LaForge is right. He never did file any paper indicating that he represented Mr. Gonzalez on this case. And when he did come in on August the 16th, he took the position that when he was representing Mr. Gonzalez on the drug case, it was only for the purposes of putting through a package plea that would resolve the murder case and the drug case along with it. And so for that reason, he was handling the drug case for the purposes of the package plea.

Mr. LaForge did indicate that he was going to meet with family members over a weekend and advise the [c]ourt on . . . Monday morning whether or not he was going to represent the defendant. He didn't call. We called Mr. LaForge later in the day, and he indicated he [wa]s going to represent the defendant, and he would appear on September the 4th, the trial date.

On September the 4th, the trial date, Mr. LaForge asked for an adjournment. We didn't try the case last week. We carried it as a back up. The request for an adjournment was denied, and the matter was carried as the back up. Now the case that we did start was a case that would have taken two weeks. But after some preliminaries and the jury selection process, it was resolved. And then we called Mr. LaForge on Friday to indicate that this would be the next case. And at that time, he indicated he was going to file a motion for an adjournment which I advised my team leader to tell Mr. LaForge it should be heard today. And then in addition, there was a motion for recusal filed.

. . . .

Now . . . with regard to the [g]rand [j]ury testimony, we don't know whether or not Mr. Scott has ordered the [g]rand [j]ury transcript because Mr. LaForge does not have Mr. Scott's file and hasn't communicated with Mr. Scott. But, of course, that can be done after we get off the record on this.

. . . .

And the . . . question of retaining an expert witness to testify as to what is customarily done on a surveillance, I don't know of any case or a least I'm not personally familiar to the best of my recollection with any case law that presents a case where . . . that was done. . . . I can't really imagine how an expert would be allowed to testify that this was not a surveillance or that it didn't happen the way . . . Officer Sykes says it happened.

. . . .

And I haven't been given any person who is an expert or what that person would say other than Mr. Recca who for some reason is unavailable to testify in this case. Of course, I don't know what the expert would do other than just read the report that's one page.

So I can't[,] based on what's been presented to me[,] identify a reason why we need to adjourn this case. The dates I have here are -- Mr. LaForge indicated to me that he was -- after he didn't come in on the 13th and after the record that was made on August 16th, and then there was the telephone cal[l] on the 20th when Mr. LaForge said he would represent the defendant and would appear on the trial date which was last week, and we've now had the benefit of having not had to try the case . . . last week, but it is ready to start tomorrow. And it is a case that is going on four years old from the date of the offense. So it easily becomes the oldest case in the trial bank. This is experienced defense counsel. It doesn't seem to me that it's a case that would require more than a matter of days to look at and be ready to go to trial and ask the questions that need to be asked of the State's witnesses.

So I'm not satisfied at this point that there's a basis to adjourn this case in light of the fact that we've been on notice that the trial date was last Tuesday and was carried until this Tuesday.

LaForge, who had represented defendant before the same judge on his homicide trial, then sought the judge's recusal based upon his "behavior," which counsel alleged "was certainly not conducive with conducting a fair proceeding." As an example, LaForge stated that the judge "repeatedly demonstrated dis[d]ain and annoyance with defense counsel[,] [e]ach time [he] made an objection on behalf of [his] client . . . ." LaForge also raised objections to some of the judge's evidentiary rulings in the homicide trial, and further cited the judge's refusal to grant an adjournment of the narcotics trial as "[m]ore evidence of [the judge's] inability to remain impartial to [his] client . . . ."

In denying the recusal motion, the trial judge stated that he had no recollection of most of counsel's allegations regarding his trial conduct, and dismissed counsel's claims of bias. The judge stated that he was "very comfortable with the record" in defendant's homicide case, and noted that counsel "got the best possible result that he could get in this case." The judge further stated that he was "persuaded that the motion for a recusal comes after the denial of the motion for an adjournment . . . ."

At the conclusion of the trial judge's ruling, LaForge conveyed to the judge defendant's statement that he "does not feel comfortable with what he feels is a somewhat strained relationship between Your Honor and myself, and he does not wish me to represent him in this case." The following colloquy then ensued between the judge and defendant:

THE DEFENDANT: I'm saying . . . that if LaForge is not going to have time to review my case and study my case, how is he going to fight for me?

THE COURT: Your case is [a] one[-]page police report.

THE DEFENDANT: Yeah, but --

THE COURT: He's had weeks to read and study that one page. He . . . is a defense attorney of many years' experience.

THE DEFENDANT: From my understanding, he only ha[d], like, 20 days, wasn't it?

THE COURT: Twenty days to read one page . . . . [M]y judgment is that is sufficient time. Somebody may disagree with me, but . . . I have no reservation at all that for a drug case like this which is something we see so much of here, 20 days to -- assuming it's 20 days. When I talked to you, you thought he represented you on the drug case.

THE DEFENDANT: Yeah.

THE COURT: Right? that was back on August 3rd I believe is the date --

THE DEFENDANT: 'Cause --

THE COURT: -- and that he had always represented you on that case --

THE DEFENDANT: 'Cause there was --

THE COURT: -- since he came in . That's what you told me with your family present in court. So I -- let's assume it's 20 days. My feeling is that that is more than sufficient time to be ready to try this case for Mr. LaForge and the nature of this case.

THE DEFENDANT: If he ain't going to have the time, I -- the other lawyer, I want him representing me.

On the following day, defendant agreed to a negotiated plea. Prior to the hearing on that plea, the judge provided LaForge with a copy of the grand jury transcript relating to the narcotics indictment, which the judge had obtained from Scott, defendant's prior attorney. Thus, the judge noted that the grand jury transcript had been available to LaForge from the time he entered this case.

The judge further addressed defendant's request to produce an expert, noting that the expert had been proffered to "venture an opinion about the credibility of the State's witness, and . . . about surveillance." The judge opined that such testimony

wouldn't be admissible in the first place. And if it is, I don't know that it would be more helpful to the defense than it would dis-serve [sic] the interest of the defense if this expert were cross-examined. But I would be willing to hear about that some more today before we go ahead with his guilty plea if that were . . . the inclination because thinking about this, I'm satisfied that this is something I would like to have a clearer sense of what the expert would testify to.

. . . .

I'm satisfied that this expert couldn't venture an opinion about the credibility of the State's witness, and I'm not sure what the expert would testify to about surveillance. So I would be willing to go back and find out some more about that if there was any interest in doing that.

Defense counsel responded: "I believe I made the record clear yesterday, Your Honor. I have nothing further."

Defendant thereupon proceeded to enter a plea of guilty to the charge of third-degree possession of heroin within 1000 feet of school property. Defendant testified under oath that he had no questions about what he was doing, was satisfied with the services of his attorney, and did not feel that "anything . . . [was] not right or out of order about what [he was] doing . . . ." Under questioning by the prosecutor, defendant acknowledged that he was "not pleading guilty because [he did not] think [he] would get a fair trial if [he] went to trial . . . .," and confirmed that it "[was] not . . . the motivation" for his guilty plea.

At sentencing on September 28, 2007, defense counsel again moved to recuse the trial judge. Counsel argued that, at the proceedings on September 10, 2007, defendant "indicated that he wished for his original attorney, Terence Scott, to be his attorney. Once again Your Honor denied . . . [d]efendant . . . his [due] process right and forced him to keep an unprepared attorney as trial counsel." For the first time, LaForge asserted that, "[a]fter speaking to Mr. Scott, it was clear that he was in fact prepared for trial, had all discoverable materials, and most importantly undoubtedly believed he was still trial counsel."

Defendant also moved to retract his guilty plea, claiming that he did not have an opportunity to review the grand jury transcript in the case until after "the plea had begun," and had he "been permitted to review said transcript, prior to his guilty plea, he never would have ple[]d guilty."

In denying defendant's recusal motion, the trial judge once again reviewed the history of the litigation, including LaForge's appearance on August 16, 2007, at which time he stated that he was about to be retained to represent defendant; counsel's August 20 representation to the judge that he would be prepared to begin trial on the scheduled date of September 4; counsel's request for an adjournment on the first day of trial; and the judge's accommodation of that request by making defendant's trial the backup to another case.

Regarding the issue of the grand jury transcript, the trial judge stated:

The [g]rand [j]ury transcript could have been obtained in a half hour. The Court did it. I assumed on the morning of the 11th when the defendant pled guilty, we had done a pretrial conference, I had sent for a jury panel, that we were going to trial. So I thought, let me ask Mr. Scott, I know the Public Defender's Office orders [g]rand [j]ury transcripts, maybe he's got the [g]rand [j]ury transcript, although I said I guess he didn't order it because that's the first thing Mr. LaForge would have done. If he wanted a [g]rand [j]ury transcript, back in August[,] he would have done this. And Mr. Scott said, let me look in my file, oh, yeah, here it is, Judge. I said, would you be good enough to fax that to us. So I secured that for the defense, and I made copies for each of the attorneys.

And this is now somehow the basis for a recusal motion when the [c]ourt went and did in just a half hour the morning that we were going to trial and the attorneys would have had it before trial. Remember[,] this is a case with a one-page police report. It's not a very involved case and is a very typical kind of case that attorneys handle here. And I provided it to the defense and to the prosecution. . . .

. . . .

Now furthermore, with regard to the [g]rand [j]ury transcript, I have no way of identifying today because the defense refuses to disclose it and the defendant refuses to tell me what he thinks is there that might make a difference to him, what there is about the [g]rand [j]ury transcript that would suddenly have made a difference had the attorneys looked at it before the plea. And it's curious to me as to why if the defendant wanted to retract his guilty plea because of the [g]rand [j]ury transcript why that didn't happen the same day. The [g]rand [j]ury transcript . . . was there and I've got to believe was read that day. And if not that day, why not within a few days when the defendant apparently called [and] spoke with Mr. LaForge at his home and asked to retract the plea.

Now I was a little surprised, frankly, that there was a guilty plea here . . . because it had been a trial, and that's what I was told, and that's what I made arrangements for, and that's what I had a jury panel for. And I'm assuming, of course, that this was not a structured strategy from the start that we were going to enter the guilty plea and then move to retract it, and that way we'll get the adjournment which the Court denied us.

But under all of those circumstances, it appears clear to me that the motion for a recusal should be denied.

The trial judge also denied defendant's motion to retract his guilty plea and engaged in the following colloquy with defendant:

THE COURT: All right. This application is based on the fact that the defense did not have a [g]rand [j]ury [t]ranscript and that once they had it, it made a difference to them and they would not have pled guilty. But they won't tell us what the difference is.

You understand, Mr. Gonzalez, that's what you're asking. You're asking me to let you take back your guilty plea because you didn't have the [g]rand [j]ury [t]ranscript, and if you did, it would have made a difference to you. But you will not tell me what the difference is. Is that right?

THE DEFENDANT: Yes.

THE COURT: Okay.

MR. LaFORGE: Judge --

THE COURT: Sometime later on -- let me just say this for you so you hear it for the record. Sometime later on, that may come back to haunt you because when you go and appeal this as you plan to do, you're going to be faced with the fact that you were given the opportunity to tell the [j]udge why you should be allowed to do that, and you wouldn't do that. You understand? I know you're going by your lawyer's advice and so forth, but you're going to be confronted with that. And, frankly, I'm doing it now for that reason. Do you understand?

THE DEFENDANT: Yes.

THE COURT: All right so . . . you want to take back you guilty plea 'cause you didn't have the [g]rand [j]ury transcript 'cause it would make a difference to you, but I'm not telling you what the difference is. Is that right?

THE DEFENDANT: Yeah. And because I'm not guilty.

THE COURT: Okay. Then why did you tell me you're guilty under oath?

THE DEFENDANT: If I were to say that . . . I wasn't guilty, you was going to take me to trial, and my lawyer wasn't ready for trial on that occasion.

THE COURT: All right. Did Mr. LaForge tell you say that?

THE DEFENDANT: No.

THE COURT: No? All right.

The judge then rendered his decision denying defendant's motion to withdraw his guilty plea.

So the reason the attorney is not prepared is because he didn't read the [g]rand [j]ury transcript and didn't get it. . . . [A]nd once he read it, he realized that there was a difference there, and they would have something to argue for reasonable doubt I suppose or even that defendant is innocent, not guilty, and that the defendant lied under oath when he told me he was guilty for his own reasons. All those things are lies committed under oath.

So under the circumstances here, . . . I cannot -- ordinarily when someone is applying to take back a guilty plea before sentence, that's easy to do -- easier -- I shouldn't say -- not easy because there is an interest in finality, and there is an interest in integrity, and there is an interest in not allowing manipulation and deceit to be used as a basis to accomplish something that otherwise you were not able to accomplish or allowed. That's important, too.

So this is not a difficult decision because the defendant is essentially saying, I want to take back my guilty plea, but I won't tell you why.

. . . .

So for those reasons, the motion to retract the . . . guilty plea is denied. I'm . . . persuaded that . . . this is not a genuine application at all for all of the reasons that I've indicated, number one, the defendant when he was interviewed just a few days ago maintained his guilt. Now he's saying he's innocent. This is after he talked to his lawyer supposedly according to the lawyer's certification and said, I want to take back my guilty plea.

The judge then sentenced defendant to a term of four years with a two-year period of parole ineligibility, to run consecutively with defendant's eight-and-a-half-year sentence for passion/provocation manslaughter.

On appeal, defendant raises the following issues for our consideration:

POINT I.

[DEFENDANT'S] SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED AND THUS THE LOWER COURT'S RULING TO PROCEED WITH A PLEA AGREEMENT MUST BE REVERSED AND REMANDED

A. The Defendant was denied the right to the counsel of his choice, a right which is inherent in the Sixth Amendment

B. [Defendant] was [deprived of] his Sixth Amendment right to effective counsel when his attorney was given inadequate preparation time

POINT II.

THE LOWER COURT ERRED WHEN IT DENIED THE DEFENDANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING

We reject as wholly without merit defendant's argument that he was denied his Sixth Amendment right to counsel of his choice. Curtis LaForge had been defendant's trial attorney in his homicide case and, as the judge commented, obtained what appears to have been a favorable result, namely a verdict of passion/provocation manslaughter notwithstanding evidence that could have supported a much more severe verdict. Presumably, the result in the homicide trial prompted defendant's decision to have LaForge represent him on his narcotics charges.

The only dissatisfaction with LaForge that defendant indicated arose briefly at the conclusion of the hearing on his recusal motion on September 10, 2007. Having heard the trial judge deny LaForge's recusal and adjournment requests, defendant stated that, if LaForge wasn't going to have the time to prepare adequately for trial, he wanted "the other lawyer . . . representing [him]." LaForge at no time made a formal application to be excused as counsel in defendant's narcotics trial. Rather, he waited to raise this issue until he brought the plea retraction motion on defendant's behalf.

As the trial judge noted, the narcotics case was not unduly complicated. The pertinent police report was only one page long. Therefore, the judge concluded that twenty days was sufficient time for LaForge to review the State's case and prepare for trial. Moreover, the judge rejected defendant's request for an adjournment in order to obtain an expert for the reasons stated.

The record is clear that LaForge entered the narcotics case at defendant's request. One month prior to the scheduled trial date, LaForge represented that he would be prepared to proceed. Other than LaForge's statement at sentencing, there is no evidence in the record that defendant's prior attorney, Scott, was available, willing, and/or prepared to return as counsel for the narcotics prosecution. The record indicates defendant's disgruntlement arose when the trial judge denied LaForge's adjournment and recusal requests.

Regarding the issue of defendant's motion to retract his guilty plea, the Supreme Court has recently identified four factors which

trial judges are to consider and balance . . . in evaluating [such] motions: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[State v. Slater, 198 N.J. 145, 157-58 (2009).]

Where, as here, the motion is made prior to sentence, evaluation of those factors is governed by the "interest of justice" standard in Rule 3:9-3(e). Id. at 158.

No one factor outlined above "is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162. Moreover, "[t]he State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Ibid. (citing United States v. Jones, 336 F.3d 245, 255 (3d Cir. 2002)).

Applying these factors here we note first that defendant has not "asserted a colorable claim of innocence . . . ." Slater, supra, 198 N.J. at 157. The "nature and strength of defendant's reasons for withdrawal[,]" id. at 157-58, relate to his dissatisfaction with the trial judge's refusal to recuse himself and to grant an adjournment of trial.

For the reasons stated, we are satisfied that defendant's proffered reasons lack merit. LaForge assured the trial judge that he would be ready to proceed with trial on September 4, 2007. As the judge noted, the matter was not complex, and defendant failed to assert a compelling need to retain an expert to opine on the surveillance in the case. Defendant's prior attorney, Scott, apparently had obtained the grand jury testimony sometime earlier; LaForge proffered no explanation for his failure to obtain defendant's file from Scott.

Defendant's decision to enter a guilty plea was the result of a plea bargain that included the dismissal of three counts of the indictment including a second-degree offense. Defendant pled guilty to a third-degree offense, and the State promised to recommend a maximum sentence of four years with a two-year parole ineligibility period.

Because we conclude that defendant has failed to assert a viable basis for withdrawal of his guilty plea under these first three factors, we need not consider the fourth factor relating to unfair prejudice to the State. Id. at 162.

Affirmed.

 

Defendant moved for an adjournment of trial on September 7, 2007; however, the trial judge did not file the order denying that motion until October 29, 2007.

As noted, LaForge briefly stated that he would ask to "opt out" of the case, at the outset of argument on his adjournment and recusal motions on September 10, 2007; however, he never made that request by formal motion.

Rule 3:9-3(e) provides: "If as the time of sentencing the court determines that the interests of justice would not be served by effectuating the [plea] agreement[,] . . . the defendant shall be permitted to withdraw the plea."

(continued)

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A-1265-07T4

June 17, 2009