                                NOT FOR PUBLICATION WITHOUT THE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-0936-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN NIZIOLEK,

     Defendant-Appellant.
________________________________

                   Submitted September 12, 2018 – Decided September 17, 2018

                   Before Judges Haas and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 15-02-
                   0110.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Stephen W. Kirsch, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Paul H. Heinzel, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      On appeal from his conviction for two gun possession offenses, defendant

argues that the motion judge mistakenly denied his pretrial motion to dismiss

his privately-retained attorney so he could again be represented by a public

defender. For the reasons that follow, we reverse and remand for a new trial.

      In the early morning of March 8, 2014, defendant and two other

individuals were in a car that was involved in an accident. Defendant suffered

a cut lip in the crash. A number of police officers responded to the scene.

During the course of their investigation, the officers found a handgun on t he

ground near the vehicle. Subsequent forensic testing revealed that defendant's

DNA was present on the weapon.

      On February 26, 2015, a Somerset County grand jury returned a two-count

indictment charging defendant with second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b) (count one); and second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(b).1 Defendant was initially represented

by a public defender. At some point, however, defendant's family retained a

private attorney to represent him in place of the public defender. This attorney

filed an unsuccessful motion to preclude the introduction of DNA evidence at



1
   Defendant was arrested for these offenses on February 5, 2015, and was
detained throughout the entire pretrial proceedings.
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                                       2
trial. Defendant asserted that he also asked the attorney to file a motion for a

reduction of his bail, but the attorney failed to do so.

      On April 8, 2016, the parties appeared before the motion judge for the

pretrial conference required by Rule 3:9-1(f). At the conference, defendant told

the judge that he was extremely dissatisfied with his attorney's performance. In

addition to failing to file a bail motion, defendant asserted the attorney had not

met with him for months, and did not explain what would happen at the

conference. Defendant also argued that his parents hired the attorney without

his permission.

      The attorney contradicted defendant's account, and stated that he had

consulted with defendant on several occasions prior to the conference.

However, because it was clear that he and defendant did not agree on how the

matter should proceed, the attorney asked to be excused from the case.

      In response, the motion judge advised defendant that he could "replace[]"

or "relieve[]" his attorney and retain a new attorney or obtain a public defender,

but the judge was not going to consider the issue that day. Instead, the judge

instructed the attorney to file a motion to be excused, and set May 23, 2016,

forty-five days later, as the return date for that motion. In addition, the judge

set June 6, 2016 as the trial date.


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                                         3
      At oral argument on May 23, 2016, defendant told the motion judge that

he still wanted to fire his attorney. Defendant again asserted that he never agreed

to have the attorney represent him; the attorney failed to seek a reduction of his

bail; and the attorney was not meeting with him to prepare his case. Defendant's

attorney agreed that he and defendant were "in a hostile situation" due to

defendant's allegations of misconduct against him. Because the case was not

complex, the attorney stated that only a brief adjournment was needed because

a public defender could assume responsibility for the case and likely be ready

for trial within a month. The State did not directly oppose defendant's motion,

stating only that it would be ready to proceed at trial.

      The judge denied the motion and ordered the attorney to represent

defendant at the trial over defendant's objection.         In doing so, the judge

incorrectly stated that "this is the first time in the last eight or nine months" that

defendant had "expressed these concerns" about the attorney's performance.

Overlooking the fact that defendant had asked for the right to obtain a new

attorney at the pretrial conference, before a trial date had even been set, the

judge observed that defendant's arguments "would have [had] greater resonance

with the [c]ourt had they been earlier made." Thus, because the trial date was

scheduled for June 6, 2016, the judge ruled it was now too late for defendant to


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                                          4
retain new counsel or secure a public defender. The judge concluded his brief

oral decision by declaring that defendant's "real motivation" in "articulating his

dissatisfaction with" his attorney was "to delay a resolution of this matter."

      At the conclusion of oral argument, defendant's attorney and the State

agreed to begin the trial on May 24, 2016 to accommodate the prosecutor's need

to attend a training program. On that date, the motion judge announced that he

was no longer able to preside over the case because of other work commitments,

and the matter was transferred to another judge who conducted the trial.

      At the conclusion of the trial, the jury convicted defendant for second-

degree unlawful possession of a weapon (count one). Defendant then waived

his right to have a jury consider the second-degree certain persons charge (count

two). Following a bench trial, the trial judge convicted defendant on count two.

The judge subsequently sentenced defendant to an extended fifteen-year term in

prison, with a seven and one-half year period of parole ineligibility, on count

one; and to a concurrent ten-year term, with a five-year period of parole

ineligibility, on count two. This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE  JUDGE    INAPPROPRIATELY  DENIED
            DEFENDANT'S PRETRIAL MOTION TO DISMISS

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                                        5
            HIS ATTORNEY, WHICH WAS JOINED IN BY
            THAT ATTORNEY; THE JUDGE DID NOT
            PROPERLY BALANCE THE RELEVANT FACTORS
            FROM THE CASE LAW, INSTEAD SUMMARILY
            DENYING THE MOTION FOR GENERIC REASONS
            OF AVOIDING DELAY WITHOUT SPECIFICALLY
            STATING WHY A BRIEF DELAY WOULD HARM
            EITHER PARTY.

            POINT II

            THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

We limit our discussion to the first argument raised by defendant.

      The Constitutions of the United States and New Jersey both guarantee an

accused the right to have the assistance of counsel. U.S. Const. amend VI; N.J.

Const. art. I, ¶ 10. An essential element of this constitutional guarantee is the

right of a defendant to secure counsel of his or her choice. State v. Furguson,

198 N.J. Super. 395, 401 (App. Div. 1985) (citing Chandler v. Fretag, 348 U.S.

3 (1954)). However, this right is not absolute and must be balanced against the

demands of the court's calendar. 2 State v. Kates, 216 N.J. 393, 396 (2014).



2
   We note that a defendant's constitutional "right to counsel of his or her choice
. . . 'does not extend to defendants who require counsel to be appointed for
them.'" State v. Miller, 216 N.J. 40, 62 (2013) (quoting United States v.
Gonzalez-Lopez, 548 U.S. 140, 151 (2006)). Accordingly, 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.
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                                        6
      Our Supreme Court has consistently held that when a defendant requests

an adjournment in order to retain a new attorney, the trial judge must consider

the following factors:

            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.

            [Id. at 396 (quoting Furguson, 198 N.J. Super. at 402).]

      "Trial judges retain considerable latitude in balancing the appropriate

factors." Id. at 397 (citing State v. Hayes, 205 N.J. 522, 537-39 (2011)). "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." Id. at 396-97. However, if the judge "summarily denies" the request

"without considering the relevant factors, or abuses [his or her] discretion in


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                                         7
[their] analysis of those factors," the result is a structural error which mandates

a new trial because of the "deprivation of [the defendant's] right to choice of

counsel[.]" Id. at 397.

      Applying these principles, we are constrained to conclude that the motion

judge mistakenly failed to consider the Kates factors in any meaningful way.

Defendant and his retained attorney were not requesting a lengthy delay to

enable defendant to secure new counsel; the case was not complex; the State did

not assert that it would be prejudiced if an adjournment were granted; defendant

did not allege any prejudice of his own; both defendant and his attorney agreed

that the attorney should no longer represent him because of defendant's

allegations against the attorney; no prior adjournments of the trial had been

sought by either party; and the public defender's office would have been

available to take back the case because defendant was qualified for such

representation. However, the judge did not address these facts in his brief oral

decision and, as a result, mistakenly exercised his discretion in denying

defendant's motion.

      We also cannot find support in the record for the judge's finding that

defendant's request to secure a new attorney was purposely dilatory. Defendant

sought new counsel at the April 8, 2016 pretrial conference, which was before a


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                                         8
trial date had even been set. Rather than dealing with that request as part of the

conference, the judge set a return date for the motion that was forty-five days

later, and only two weeks before the June 6, 2016 trial date he scheduled at the

end of that proceeding. On the return date, the judge mistakenly stated that

defendant was raising his dissatisfaction with his attorney for the first time, and

incorrectly based his decision to deny the request on his determination that

defendant should have made his request earlier so that the trial could proceed as

scheduled.

      Because the judge failed to engage in the required balancing process

mandated by Kates, a new trial is required. 3 Therefore, we reverse defendant's

convictions and remand for a new trial. Based on our conclusion that a new trial

must be conducted, we decline to consider defendant's challenge under Point II

to the sentence the trial court imposed.


3
   In so ruling, we reject the State's argument that Kates is distinguishable from
this matter because, in Kates, the defendant was represented by a public defender
and sought to replace that attorney with private counsel of his choice. 216 N.J.
at 396. Here, on the other hand, defendant had a retained attorney and sought
to replace that attorney with a public defender. We discern no principled basis
for declining to apply Kates here. Defendant had the option of retaining a new
attorney, or having a public defender re-assigned to his case. As noted above,
if defendant applied for a public defender, he would have had to accept the
attorney assigned to him. Yet, he still had a constitutional right to choose
whether to retain a private counsel or secure a public defender which the judge
was required to protect by considering the Kates factors.
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                                           9
Reversed and remanded. We do not retain jurisdiction.




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                              10
