                                NOT FOR PUBLICATION WITHOUT THE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-2814-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DONALD S. JACKSON,

     Defendant-Appellant.
_________________________

                    Submitted April 8, 2019 – Decided May 10, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 11-01-0001.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Lauren Martinez, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      On January 4, 2011, a Mercer County Grand Jury indicted defendant

Donald Jackson for third-degree possession of a controlled dangerous substance

(CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of CDS

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2)1

(count two); and third-degree eluding, N.J.S.A. 2C:29-2(b) (count three). The

charges stemmed from allegations that when police officers attempted to

conduct a motor vehicle stop of defendant's vehicle for a violation, defendant

eluded the officers, and discarded an object during the chase that turned out to

be cocaine. Prior to trial on this case (the State case), defendant was arrested

and charged with additional drug and weapons-related offenses, stemming from

the execution of search warrants for his home and car. The prosecution resulting

from this second arrest was ultimately taken over by federal authorities (the

federal case).

      Trial commenced on the State case on February 20, 2014. However, prior

to its conclusion, the trial court discharged the jury, declared a mistrial, and

disqualified defense counsel based on a perceived conflict of interest. A second

trial commenced on September 15, 2015, after which the jury returned a verdict


1
  The indictment mistakenly cited N.J.S.A. 2C:35-5(b)(3), which pertains to a
crime of the third-degree.


                                                                        A-2814-15T3
                                       2
of guilty on all counts, and defendant received an aggregate extended term

sentence of nineteen years, with an eight-year period of parole ineligibility.

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

             POINT I

             THE    COURT      IMPROPERLY      DENIED
             [DEFENDANT] OF HIS SIXTH AMENDMENT
             RIGHT TO COUNSEL WHEN IT RULED, IN THE
             MIDST OF TRIAL, THAT RETAINED PRIVATE
             COUNSEL WAS        PRECLUDED       FROM
             REPRESENTING HIM, WITHOUT CONDUCTING A
             PROPER ANALYSIS UNDER RPC[2] 1.7.

             POINT II

             THE TESTIMONY OF THE STATE'S WITNESS
             THAT THE DRUGS AT ISSUE WERE POSSESSED
             WITH THE INTENT TO DISTRIBUTE WAS
             IMPROPER AND DENIED [DEFENDANT] A FAIR
             TRIAL AND DUE PROCESS. . . . (NOT RAISED
             BELOW).

                   A.  THE     EXPERT     OFFERED
                   TESTIMONY    THAT    WAS   NOT
                   OUTSIDE THE KEN OF THE AVERAGE
                   JUROR.

                   B.  THE     EXPERT     OFFERED
                   TESTIMONY THAT . . . DEFENDANT
                   WAS GUILTY OF POSSESSION WITH
                   THE INTENT TO DISTRIBUTE.



2
    Rules of Professional Conduct.
                                                                          A-2814-15T3
                                        3
                  C.  THE EXPERT OFFERED AN
                  OPINION ON THE MENTAL STATE OF
                  THE ACCUSED AND, THEREBY,
                  DECLARED     HIS GUILT OF THE
                  ACCUSED CRIME, USURPING THE
                  ROLE OF THE FACT FINDERS[.]

             POINT III

             THE TRIAL COURT IMPROPERLY DENIED THE
             DEFENSE REQUEST FOR AN INSTRUCTION TO
             THE JURY THAT THEY COULD DRAW AN
             ADVERSE INFERENCE FROM THE FAILURE OF
             THE POLICE TO PRESERVE THE MVR [3] TAPE[.]

             POINT IV

             THE COURT IMPOSED AN EXCESSIVE AND
             ILLEGAL SENTENCE AFTER IMPROPERLY
             CONSIDERING    AND   WEIGHING  THE
             AGGRAVATING AND MITIGATING FACTORS
             AND IRRELEVANT INFORMATION[.]

                  A.  INAPPROPRIATE
                  CONSIDERATION     OF       PRIOR
                  CONTACTS WITH THE       JUDICIAL
                  SYSTEM[.]

                  B.  IMPOSITION OF AN ILLEGAL
                  PERIOD OF PAROLE INELIGIBILITY[.]

                  C.  IMPOSITION OF A SENTENCE
                  ON A MERGED COUNT[.]


3
    Mobile Video Recorder.



                                                          A-2814-15T3
                                  4
                   D.   IMPOSITION     OF     A
                   CONSECUTIVE SENTENCE WITHOUT
                   A [YARBOUGH4] ANALYSIS.

       After reviewing the record in light of the applicable legal principles, we

conclude the trial court erred in disqualifying defense counsel during the first

trial of the State case. Thus, we reverse defendant's convictions and remand for

a new trial. Based on our decision, we decline to reach defendant's remaining

arguments regarding purported trial errors. Our decision to overturn defendant's

convictions and remand the matter for a new trial also obviates the need to reach

defendant's challenge to his sentence.

       We summarize the facts from the second trial of the State case. Shortly

after midnight on August 28, 2010, Hamilton Township police officers David

DeLeon and Thomas DeVictoria attempted to conduct a motor vehicle stop of a

vehicle driven by an individual later identified as defendant because neither

defendant nor his front seat passenger was wearing a seatbelt when the vehicle

passed the officers' patrol car.    Despite activating their lights and sirens,

defendant failed to pull over and instead led the officers on "a very low speed

pursuit" into Trenton that lasted approximately twelve minutes.




4
    State v. Yarbough, 100 N.J. 627 (1985).
                                                                         A-2814-15T3
                                         5
      During the pursuit, after defendant turned down an alleyway, the officers

observed defendant toss a "golf ball sized white object in a plastic bag" over a

fence on the left side of the alleyway. Defendant eventually pulled over after

exiting the alleyway and was promptly arrested along with the passenger.

Currency totaling $1480 in different denominations was seized from defendant's

person during a search incident to his arrest. DeVictoria "immediately ran back

to the area where the object was thrown" and retrieved the object defendant

discarded, which was later confirmed to be cocaine.

      At trial, the State presented four witnesses.    Officers DeVictoria and

DeLeon testified in detail about their encounter with defendant. Although their

patrol vehicle was equipped with a MVR system, which recorded once the sirens

were activated, DeVictoria failed to submit a timely request to preserve the

MVR footage of the encounter before it "record[ed] over itself" in the normal

course, resulting in the routine destruction of the recording.      State Police

Forensic Scientist David Dupnock testified as an expert and confirmed that the

substance seized totaled one ounce of cocaine. Mercer County Prosecutor's

Office Detective Joseph Angarone testified as a drug trafficking expert,

explaining drug trafficking in relation to the quantity possessed, concealment or

"distancing," manufacturing, packaging, distribution, and street value.


                                                                          A-2814-15T3
                                       6
      Following the guilty verdict, the court granted the State's motion for

imposition of a mandatory extended term sentence pursuant to N.J.S.A. 2C:43 -

6(f), and imposed a fifteen-year term, with an eight-year period of parole

ineligibility, on count two, a consecutive four-year term on count three, and a

concurrent five-year term on count one, which the court also merged with count

two.5 Further, the court ordered the sentence to run concurrent with the federal

sentence defendant was then serving on the federal case.6 The court entered a

memorializing judgment of conviction (JOC) on January 20, 2016, 7 and this

appeal followed.

      Defendant contends he was deprived of his Sixth Amendment right to

counsel when his "retained private counsel" was disqualified. Defendant argues

"[t]he court abused its discretion" in disqualifying his attorney without

conducting "any meaningful analysis of the factors listed in RPC 1.7(a) to


5
  Defendant correctly points out that the imposition of a sentence on a merged
count and the eight-year period of parole ineligibility imposed on count two
were improper. See N.J.S.A. 2C:43-7(c) (providing that a term of parole
ineligibility "shall . . . be fixed at or between one-third and one-half of the
sentence imposed").
6
   On January 14, 2016, defendant was sentenced to seventy months on the
federal charges.
7
  The JOC entered on January 20, 2016, was corrected on January 28, 2016, to
reflect the actual sentence imposed.
                                                                        A-2814-15T3
                                       7
determine if a conflict existed" or giving defendant "an opportunity to waive any

possible conflict." The State counters that the court "had no choice but to

remove" defense counsel "[b]ecause there was a clear conflict under the Rules

of Professional Conduct," and by not disclosing the details of the conflict "on

the record in defendant's presence," the court properly "balanced the need for

defendant to have a zealous representation" with the need "to protect the

confidentiality of the confidential informant [(CI)]."

      After the first trial on the State case commenced, on February 24, 2014,

the court discharged the jury, declared a mistrial sua sponte, and disqualified

defendant's privately retained counsel. Without detailing the reasons for the

decision, the court informed defendant that it was relieving his attorney because

"a conflict ha[d] developed" under "the Rules of Professional Conduct[,]" as a

result of which the court was no longer "comfortable with [defense counsel]

. . . continu[ing] to represent [defendant]." The court told defendant that the

"information . . . [was] confidential in nature," and the court, as well as defense

counsel, were "barred from disclosing it" to defendant.        The court referred

defendant "to the Public Defender's Office" for the assignment of counsel,

reserving defendant's right "to hire whomever [he] want[ed,]" other than his

disqualified counsel. However, defendant protested that having spent funds to


                                                                           A-2814-15T3
                                        8
retain his present counsel, he could no longer afford to hire another private

attorney of his choice.

      After defendant left the courtroom, the court and counsel placed on the

record their earlier in-camera discussion of the events that led to the

disqualification.   Defense counsel stated that over the weekend, during an

interview with a preexisting client, he learned that the client was the CI who

made a "controlled purchase of CDS from [defendant] at the request of the

State's expert[] in [the State] case[,] Joseph Angarone[.]" According to defense

counsel, that controlled purchase of CDS "led to [defendant's] arrest [in the

federal case] two weeks before trial" in the State case.        Defense counsel

explained that although he did not represent defendant in the federal case, after

following up with law enforcement, he confirmed that Angarone, was in fact

"the search warrant affiant who had actually lined up [his preexisting client] to

make [the] purchase" from defendant.

      Defense counsel "consulted outside ethics counsel" and was advised to

"disclose the information to the [c]ourt in[-]camera, and let the [c]ourt make the

call" regarding whether he or his firm could "continue to represent [defendant]"

in the State case. Defense counsel explained he "could see where the appearance

of conflict would be significant given the facts of the case." Defense counsel


                                                                          A-2814-15T3
                                        9
also acknowledged that because "the gravamen of the case" was whether

defendant possessed CDS with intent to distribute, it would be "complicated"

for him to cross-examine Angarone about that issue given that Angarone would

be "in a position to respond to cross[-]examination" and say "well, yeah, I do

have reason to believe that he possessed [the cocaine] with the intent to

distribute based on a more recent investigation[.]"

      The prosecutor summed up the conflict as defense counsel representing

"the CI and the guy the CI got arrested." As to the cross-examination quandary,

the prosecutor noted that while it was not a "violation of any rule per se[,]"

defense counsel "would have to cross[-]examine . . . Angarone on the issue that

he [was] an expert and a fact witness" in "a completely unrelated case."

Acknowledging that Angarone's involvement as a fact witness in the federal case

"could affect his ability to remain neutral and impartial" as an expert witness in

the State case, the court advised the prosecutor that "clearly it should be another

expert who [is] not part of . . . Angarone's unit to serve as an expert" in the State

case. The prosecutor agreed.

      After the court disqualified defense counsel from representing defendant

in either the State or the federal case, defendant was assigned an attorney from

the Office of the Public Defender, who represented defendant in his second trial


                                                                             A-2814-15T3
                                        10
of the State case. As noted, despite the prosecutor's agreement to use another

expert, Angarone testified as the State's expert at the second trial. Moreover, i n

the time between the first and the second trial of the State case, defendant was

charged and convicted in the federal case involving the CI and Angarone.

      "[A] determination of whether counsel should be disqualified is, as an

issue of law, subject to de novo plenary appellate review." City of Atl. City v.

Trupos, 201 N.J. 447, 463 (2010). "Where . . . the trial judge had no factual

disputes to resolve on credibility grounds and only legal conclusions to draw,"

we do not "defer to the trial judge's findings" or ultimate decision. State v.

Bruno, 323 N.J. Super. 322, 331 (App. Div. 1999).

      Consideration of this issue begins with a recognition that a non-indigent

criminal defendant has a right to obtain counsel of his or her choice, United

States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006), State v. Kates, 216 N.J.

393, 395 (2014), and

            [w]here the right to be assisted by counsel of one's
            choice is wrongly denied, . . . it is unnecessary to
            conduct an ineffectiveness or prejudice inquiry to
            establish a Sixth Amendment violation. Deprivation of
            the right is "complete" when the defendant is
            erroneously prevented from being represented by the
            lawyer he wants . . . .

            [Gonzalez-Lopez, 548 U.S. at 148.]


                                                                           A-2814-15T3
                                       11
      "However, the right to counsel of one's choice is not absolute" because

"[a] defendant's right to choose counsel is . . . circumscribed by the court's power

to guard against conflicts of interest, and to vindicate the court's 'independent

interest in ensuring that criminal trials are conducted within the ethical standards

of the profession and that legal proceedings appear fair to all who observe

them.'" State v. Kates, 426 N.J. Super. 32, 45 (App. Div. 2012), (quoting Wheat

v. United States, 486 U.S. 153, 160 (1988)). Thus, "although persons are

entitled to retain qualified counsel of their own choice, there is no right to

demand to be represented by an attorney disqualified because of an ethical

requirement." Reardon v. Marlayne, Inc., 83 N.J. 460, 477 (1980).

      In that regard, RPC 1.7(a) prohibits attorneys from:

            represent[ing] a client if the representation involves a
            concurrent conflict of interest. A concurrent conflict of
            interest exists if:

                   (1) the representation of one client will be
            directly adverse to another client; or

                   (2) there is a significant risk that the
            representation of one or more clients will be materially
            limited by the lawyer's responsibilities to another
            client, a former client, or a third person or by a personal
            interest of the lawyer.

However, RPC 1.7(b) allows affected clients to provide informed written

consent if "the lawyer reasonably believes that [he or she]" can provide the

                                                                            A-2814-15T3
                                        12
impacted clients "competent and diligent representation"; "the representation is

not prohibited by law"; and the affected clients are not adverse parties in the

same litigation. 8

      In State v. Hudson, 443 N.J. Super. 276 (App. Div. 2015), we reversed the

trial court's finding of a conflict of interest and resulting disqualification of the

defendant's attorney based on the court's reliance on the abrogated "appearance

of impropriety" doctrine, which was eliminated from all RPCs "in 2004, when

the RPCs were amended."         Id. at 288.    We held that the "appearance of

impropriety doctrine may not serve as a basis to disqualify counsel because of a

perceived conflict of interest[,]" id. at 289, but rather "[c]onflicts must be actual

and not merely appearance based." Id. at 292.

      We directed the trial court on remand to "conduct a detailed review,

thoroughly examining the facts surrounding the . . . representation" to determine

whether "an actual conflict" existed. Ibid. We instructed that "[p]ertinent to

this inquiry are findings on whether" the representation in one matter was

limited in scope so as not to conflict with the other, and whether the attorney


8
   Under RPC 1.10(a), lawyers associated in a firm shall not "knowingly
represent a client when any one of them practicing alone would be prohibited
from doing so by RPC 1.7" unless "the prohibition is based on a personal interest
of the prohibited lawyer and does not present a significant risk of material ly
limiting the representation of the client by the remaining lawyers in the firm."
                                                                             A-2814-15T3
                                        13
would obtain information from representing one client that could be used to the

client's "detriment during cross-examination were he to testify in the defendant's

criminal case." Ibid. We cautioned that "the mere proffer of a witness who will

not be called at trial may not be a basis to disqualify counsel." Ibid.

      Although     Hudson    was    decided    the   year   following     counsel's

disqualification in this case, we relied on principles that were established in

Bruno, 323 N.J. Super. at 322. There, no conflict of interest was found when

defense counsel previously represented in a civil rights and worker's

compensation matter the State's lead detective who would be testifying against

the defendant in the criminal case. Id. at 324-25. Although the detective would

not consent to defense counsel's representation because he intended to request

the firm file an action reopening his claim, we concluded disqualification was

improper because

            no actual conflict in counsel's former and current
            representations existed, and the firm's prior
            representation of the detective was limited in scope
            and, therefore, not subject to the same types of risk of
            gaining confidential information during that
            representation, which could be used to the detective's
            detriment during cross-examination were he to testify
            in the defendant's criminal case. Finally, we held an
            "informed citizen with full knowledge of the facts
            would conclude that there is no 'high risk' of
            impropriety here" and there is no "reasonable basis" to


                                                                           A-2814-15T3
                                       14
            conclude "these facts create an appearance of
            impropriety."

            [Hudson, 443 N.J. Super. at 286-87 (citation omitted)
            (quoting Bruno, 323 N.J. Super. at 337-38).]

      Here, the court disqualified defense counsel without conducting a detailed

review, without thoroughly examining the facts surrounding the concurrent

representation,   and   without    determining    whether    defense   counsel's

representation of the CI and defendant created an actual conflict of interest in

the State case. Indeed, it appears as if the court made the determination on

appearance alone, as prohibited by Bruno and later Hudson. In fact, a thorough

review of the record shows that because the CI had no involvement in the State

case, and there was no indication that the CI would be called as a witness in the

State case, any possible conflict would have arisen in connection with defense

counsel's representation of defendant in the federal case. However, as defense

counsel noted, he had not been retained by defendant in the federal case.

Further, any adverse impact on defense counsel's ability to cross-examine

Angarone would be obviated by the prosecutor's agreement to use a different

expert witness in the State case, an agreement the prosecutor later violated.

      As no actual conflict was established, but rather an appearance of

impropriety or potential future conflict, the decision to disqualify defense


                                                                         A-2814-15T3
                                      15
counsel was made in error. Additionally, because the court did not permit

counsel to explain to defendant the basis of the disqualification, defendant was

never given an opportunity to waive any conflict as authorized by RPC 1.7(b).

Because disqualification was improper, defendant was erroneously deprived of

his right to counsel of his choice. We therefore vacate defendant's convictions

and remand this matter for a new trial.

      Based on our decision on this issue, we decline to reach the remaining

arguments raised by defendant in this appeal, other than to point out that any

testimony by a drug trafficking expert presented by the State at a new trial would

be governed by State v. Cain, 224 N.J. 410, 429 (2016), which "limit[ed] the

scope of expert testimony in drug cases" and held that "an expert witness may

not opine on the defendant's state of mind."

      Further, as we held in State v. Richardson, 452 N.J. Super. 124, 134 (App.

Div. 2017), where we addressed the pre-indictment destruction of evidence by

the State, "the State may not destroy law enforcement's videorecording of an

offense" by failing to preserve and produce the recording where "the recording

enables a defendant to test the officer's version of what transpired ." Ibid. We

concluded that such destruction "violate[s] [the State's] implied obligations

under the criminal discovery rules and our caselaw," and may warrant "an


                                                                          A-2814-15T3
                                       16
adverse inference instruction."9    Id. at 132.    Although we concluded in

Richardson that "defense counsel's timely request to preserve the evidence"

made a particularly "strong" case "for such an adverse inference charge[,]" we

recognized "that trial courts are vested with the discretion to fashion an

appropriate sanction for a violation of discovery obligations" in order "to

'balance the scales' that the State tilted by permitting the recording's

destruction." Id. at 137-38.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




9
   In that regard, "[w]e reject[ed] the State's contention [as we do here] that
defendant was obliged to show the State acted in bad faith and the evidence was
exculpatory" and held that "neither proof of bad faith, nor a showing that
evidence is exculpatory, is essential to demonstrate a discovery violation or to
justify an adverse inference charge." Id. at 138.
                                                                        A-2814-15T3
                                      17
