                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5019-12T4


STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                  May 15, 2015
v.                                            APPELLATE DIVISION

GREGORY A. MARTINEZ,

     Defendant-Appellant.
_______________________________

           Submitted February 23, 2015 - Decided May 15, 2015

           Before Judges Lihotz, Espinosa and St. John.

           On appeal from Superior Court of New Jersey,
           Law Division, Middlesex County, Indictment
           No. 11-01-0028.

           Benedict and Altman, attorneys for appellant
           (Joseph J. Benedict and Philip Nettl, on the
           briefs).

           John J. Hoffman, Acting Attorney General,
           attorney    for    respondent  (Daniel  I.
           Bornstein,   Deputy   Attorney General, of
           counsel and on the brief).

           The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     We   again   examine   the   tension   between    a   trial   court's

discretionary "authority to control its own calendar" by denying

an adjournment request and the need to safeguard "a defendant's
Sixth Amendment right to a fair opportunity to secure counsel of

his own choice."           State v. Miller, 216 N.J. 40, 62, 65 (2013)

(citation and internal quotation marks omitted), cert. denied,

__    U.S.   __,    134    S.   Ct.   1329,     188   L.    Ed.     2d    339    (2014).

Defendant Gregory A. Martinez appeals from an order denying a

trial    adjournment       in   light      of   private     counsel's          scheduling

conflict.          Defendant    argues      the    denial     of    the       reasonable

adjournment request infringed upon his Sixth Amendment right to

counsel of his choosing.

       Following     our    review    of    the    facts    here    presented,         and

guided by the framework for review set forth in State v. Hayes,

205   N.J.   522     (2011),    we    conclude     the     denial    of       defendant's

request to adjourn trial, without weighing the facts presented

supporting     the     adjournment         request,      reflects        an    arbitrary

exaltation of expedience in case processing at the expense of

defendant's        right   to   counsel.          Accordingly,      we        vacate   the

judgment of conviction and remand the matter for a new trial.

       We recite limited facts regarding the circumstances of the

alleged criminal offenses, concentrating instead on the facts

surrounding defendant's adjournment request.                      Defendant and his

codefendant were charged in a twelve-count indictment returned

January 5, 2011, alleging they sold cocaine to an undercover

police officer.        The two were occupants in a car that was seized




                                            2                                    A-5019-12T4
and impounded.           A search of the car pursuant to a warrant,

conducted approximately one week later, yielded in excess of

five grams of cocaine.             Codefendant admitted the cocaine was

his.    Defendant was charged with six drug offenses, including

first-degree       possession     with    intent      to    distribute,        N.J.S.A.

2C:35-5(a)(1) and 2C:35-5(b)(1).              He pled not guilty, asserting

he had no knowledge the drugs were in the car.                            Ultimately,

defendant hired private counsel (the partner) to represent him.

       On   February     4,    2013,   the    trial    judge       held   a   pretrial

conference.         An    associate      employed     by     the    partner's       firm

attended     the   conference     and    expressed         his   understanding       the

conference was, in part, to schedule a new trial date because it

was believed everyone agreed the February 13, 2013 trial date

would   be   adjourned.         The    associate      explained      his      position,

stating:

             [T]he last time that everybody was here,
             everybody, at least on the [d]efense side,
             and . . . I believe from the State side as
             well, thought that this . . . court date
             today would be to schedule a new trial date.
             They believed that the trial date was off
             because of [the partner]'s trial schedule.

                  With that belief in mind, then when
             [the partner]'s other trial in front of
             Judge Nieves fell through, he scheduled
             something else for this week, because he
             believed that this trial was off.

                  As a        result, he's in front of Judge
             Rebeck on        a civil matter that started on



                                          3                                    A-5019-12T4
Friday, continued into today and is going to
continue into next week, at least Wednesday
of this week, and Wednesday, Thursday and
Friday of next week, so he's not going to be
available to try the case.

     I am, this is my first time appearing
on the case, and I will be the one trying it
if it goes next week.

     I've discussed this with my client and
I can tell the [c]ourt that he's not happy
about it. He wants [the partner] to be his
trial lawyer, and I wanted the [c]ourt to be
aware of that.

     For that reason, we are still asking
. . . the . . . trial . . . be adjourned in
order for [the partner] to be available.
And just to complete the record, as far as
the hearing that he's involved with that's
in front of Judge Rebeck who is retiring at
the end of the month and needs to get this
hearing done before he retires.

     THE COURT:     Okay.  And I understand
that.    Certainly neither I nor my team
leader told anyone involved in this case
that this case was not going next week. In
fact, this case has been on for quite awhile
while.   It's an older case on my list.    I
have put the time aside for it. And while I
understood [the partner] maybe had another
commitment in front of Judge Nieves, once
that case did not go forward, as often
happens with criminal cases, then he was
available for us.

     Perhaps   [the  partner]  should  have
someone else try the case in front of Judge
Rebeck.   I mean, I don't tell him how to
manage his cases.

     I will say to [defendant] that [the
associate] is a very experienced attorney
who works with [the partner], and I know



                     4                         A-5019-12T4
           that he, based on our discussions in my
           chambers,   is   familiar  with   the  case.
           Obviously, he is now going to continue
           preparing for the trial.     But I certainly
           have confidence that he can handle this case
           and he understands the defense in this case
           and is prepared to proceed with it.

                But [defendant], if you want to say
           anything, I'll give you that opportunity
           now.

                DEFENDANT:    I'm  not   in  agreement
           with this.   I want [the partner] to be my
           lawyer.

       The judge requested the partner come to the courthouse and

instructed the parties to appear before the presiding Criminal

Part   judge   to   address   the   adjournment   request.   We   have   no

record of that conference, except the associate's recitation on

the first day of trial, when he again set forth defendant's

objection to proceeding without the partner.         He stated:

                And after our conference, we went down
           to [the presiding judge] to explain the
           situation to him.   [He] did not agree that
           the trial date should be moved. He ordered
           that the trial continue as scheduled here
           today, even though [the partner] was not
           going to be available.

                In the meantime, I've had opportunities
           to consult with my client.     While he has
           been cooperative in preparing for trial with
           me, it is still his desire to have [the
           partner] be his trial attorney, and we want
           to place that on the record.

When asked by the trial judge, the associate admitted "I have

had time to prepare the case and I am ready to try the case."



                                      5                           A-5019-12T4
    Trial commenced.               After two days of deliberations, the jury

convicted defendant on all but one charge.

    At     sentencing,          the     partner     appeared.             Expressing      his

client's anger, he recited the events that led him to believe

the initial trial date was adjourned.                         The partner explained

during a January 3, 2013 conference,1 he advised the court of a

trial conflict, as he was given a firm date to commence an

aggravated        sexual      assault      trial   before    another       Criminal     Part

judge   the       week    before     the    scheduled    date       for    trial   in    this

matter.    As he would be on his feet in that priority matter, a

new trial date was requested.                 Counsel were advised to return on

February      4    for    a   pretrial      conference.         Based      on   unforeseen

events, trial of the priority case was adjourned on January 18.

The partner called the prosecutor to discuss scheduling in this

case and the prosecutor stated he understood a new date would be

given and he already cancelled his witnesses.                             The partner was

then scheduled to commence a civil matter, which began prior to

February 4 and was to continue the week of February 11, 2013.

    Rejecting            counsel's      request    for   a    new    trial,     the     trial

judge recalled the prosecutor cancelled his witness, but stated

"[t]here was never an official adjournment" of the trial date


1
     These events apparently were not                        recorded;      however,     the
State does not dispute their accuracy.



                                              6                                    A-5019-12T4
and the presiding judge considered and denied the request.                     The

judge also observed the associate "put forth a defense in a

vigorous way," represented defendant "very well," and she was

satisfied defendant received a fair trial.                    The trial judge

sentenced defendant and this appeal ensued.

       Defendant's argument is straightforward.                  He asserts the

denial of his adjournment request was an abuse of discretion

that    "denied     his   Sixth    Amendment    right    to   counsel   of     his

choosing."     The State counters, arguing the contention must be

rejected because defendant has not demonstrated such an alleged

abuse of discretion caused him to suffer a "manifest wrong or

injury."     See Hayes, supra, 205 N.J. at 537.

       Although the denial of an adjournment request is reviewed

under   a   deferential      standard   and    "'broad   discretion     must    be

granted     trial   courts    on   matters     of   continuances,'"     Miller,

supra, 216 N.J. at 65 (quoting Morris v. Slappy, 461 U.S. 1, 11,

103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610, 620 (1983)), "'an

unreasoning and arbitrary "insistence upon expeditiousness in

the face of a justifiable request for delay" violates the right

to the assistance of counsel.'"             Ibid. (quoting Morris, supra,

461 U.S. at 11-12, 103 S. Ct. at 1616, 75 L. Ed. 2d at 620).

       In   light    of   United    State     Supreme    Court    jurisprudence

solidifying the principle that a non-indigent defendant's Sixth




                                        7                               A-5019-12T4
Amendment    right     to   counsel   encompasses       the    right    to    be

represented by the counsel of his choosing, United States v.

Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L.

Ed. 2d 409, 416 (2006), our Supreme Court has underscored "'the

trial   court   must   strike   a   balance   between    its   inherent      and

necessary right to control its own calendar and the public's

interest in the orderly administration of justice, on the one

hand, and the defendant's constitutional right to obtain counsel

of his own choice, on the other.'"2           Hayes, supra, 205 N.J. at

538 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App.

Div.), certif. denied, 101 N.J. 266 (1985)).                  The principles

guiding this inquiry include:

            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

2
     We note a "defendant's Sixth Amendment right to counsel of
his or her choice, however, 'does not extend to defendants who
require counsel to be appointed for them.'" Miller, supra, 216
N.J. at 62 (quoting Gonzalez-Lopez, supra, 548 U.S. at 151, 126
S. Ct. at 2565, 165 L. Ed. 2d at 421).        Where a defendant
obtains   assigned  counsel,  the  defendant's   "right  to  be
represented d[oes] not entail the right to a public defender of
his [or her] choice." Id. at 63.



                                      8                                A-5019-12T4
             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. (quoting Furguson, supra, 198 N.J.
             Super. at 402 (quoting United States v.
             Burton, 584 F.2d 485, 490-91 (D.C. Cir.
             1978), cert. denied, 439 U.S. 1069, 99 S.
             Ct. 837, 59 L. Ed. 2d 34 (1979))).]

See   also       Miller,   supra,    216       N.J.   at   47-48         (adopting         the

standards recited in Hayes).

      Before      determining     whether       to    grant    or        deny     a    trial

adjournment because of counsel's unavailability, a trial judge

shall engage in "'a balancing process informed by an intensely

fact-sensitive       inquiry.'"        Miller,        supra,       216     N.J.       at   66

(quoting Hayes, supra, 205 N.J. at 538).                       "If a trial court

conducts     a    reasoned,   thoughtful        analysis      of    the     appropriate

factors, it can exercise its authority to deny a request for an

adjournment to obtain counsel of choice."                     State v. Kates, 216

N.J. 393, 396-97 (2014).            However, the absence of this analysis

results      in      a     one-sided       and,       consequently,             arbitrary

determination.       See ibid.

      In discussing this matter, the trial judge noted the age of

the case and suggested counsel should have known better because




                                           9                                      A-5019-12T4
"an official adjournment" had not been issued.                       The import of

such comments is a denial of the request.                    However, the trial

judge referred the adjournment request to the presiding judge

for consideration.          See R. 1:33-6(b) (providing the presiding

judge   of   a    unit    "shall      be    responsible    for     the   expeditious

processing       to   disposition      of    all   matters   filed       within     that

unit").      The lack of a record from this review precludes our

assessment of what occurred.               However, the State's argument does

not   support     a    conclusion      the    presiding    judge     undertook       the

necessary weighing of the relevant facts.                  Moreover, the reasons

recited by the State on appeal, as support for what it believes

was a reasoned exercise of discretion for the trial proceeding,

address only calendar considerations, omitting any analysis of

the   Furguson        factors,   as    mandated     by    Hayes.3        We   may    not

speculate    on       possible   reasons      justifying     the    denial     of   the

adjournment request; "[i]t was incumbent upon the trial court to




3
     The State lists the following as considerations as
enumeration by the trial judge in declining to adjourn the
trial:   the age of the case; the trial had been listed for a
significant period of time; the trial was to commence in a
little more than a week and the judge had allowed two weeks for
its completion; the presiding judge rejected the adjournment
request; the associate worked in the same firm as the partner
and was an experienced defense attorney; the associate was
familiar with defendant's case; and the associate was prepared
to proceed to trial.



                                             10                               A-5019-12T4
develop that record . . . ."              State v. Kates, 426 N.J. Super.

32, 53 (2012), aff'd, 216 N.J. 393 (2014).

       In the absence of the necessary factual analysis prior to

the denial of an adjournment request to reschedule trial because

of counsel's unavailability, an abuse of discretion results.                            In

this     matter,     we    conclude    both    reviewing         judges    failed      to

deliberately balance the competing interests and give weight to

defendant's right to be represented by counsel of his choice.

See Kates, supra, 216 N.J. at 397 ("Thus, we underscore that

only if a trial court summarily denies an adjournment to retain

private    counsel        without   considering      the     relevant     factors,     or

abuses its discretion in the way it analyzes those factors, can

a deprivation of the right to choice of counsel be found.").

       When the right to counsel is wrongfully denied, it is not

necessary to inquire as to effectiveness of counsel or whether

defendant suffered actual prejudice in the ensuing proceedings.

"Deprivation of the right is 'complete' when the defendant is

erroneously prevented from being represented by the lawyer he

wants,    regardless        of   the   quality       of    the   representation        he

received."      Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct.

at 2563, 165 L. Ed. 2d at 419.             See also Kates, supra, 426 N.J.

Super.     at   46    (acknowledging          "the        availability     of    'other

competent counsel'" is a factor in the analysis, but is "no




                                         11                                     A-5019-12T4
substitute   by   itself   for   the    constitutional   right   to    choose

counsel").    Accordingly, such "a structural error affects the

legitimacy of the entire trial . . . ."4            State v. Purnell, 161

N.J. 44, 61 (1999).

    We conclude the appropriate remedy on the record before us

requires that we reverse defendant's conviction and remand this

matter for a new trial.      See State v. Gibson, 219 N.J. 227, 241-

42 (2014); see also Kates, supra, 216 N.J. at 397 ("[T]here may

have been reason to deny defendant's request for a continuance

based on the [Furguson] factors.            But no analysis was conducted.

. . .   [Thus], the summary denial of defendant's request, with

no consideration of the governing standard, amounts to error and

requires a new trial." (citation omitted)).

    Reversed and remanded for a new trial.




4
     "Deprivation   of  counsel   of  choice   is  considered   a
'structural error,'" because "the consequences of deprivation
are 'necessarily unquantifiable and indeterminate.'"       Kates,
supra, 426 N.J. Super. at 44 (quoting Gonzalez-Lopez, supra, 548
U.S. at 150, 126 S. Ct. at 2564, 165 L. Ed. 2d at 420).



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