                        NOT FOR PUBLICATION WITHOUT THE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-1941-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY SHULER,

     Defendant-Appellant.
_________________________________

              Submitted September 12, 2017 – Decided October 18, 2017

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-04-0604.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Karen Kazanchy,
              Assistant Prosecutor, on the brief).


PER CURIAM

        Defendant was indicted for homicide and attempted homicide

arising from a 2010 gang-related shooting.                 While the trial was
pending,    defendant      and   others   were   charged    in   a   superseding

indictment with witness tampering and conspiracy to commit murder

of two witnesses (collectively "witness tampering") related to the

shooting.        The indictment also incorporated the homicide and

attempted homicide charges against defendant.              When a co-defendant

filed a motion to sever the trial of the witness tampering charges

from the 2010 shooting charges, defendant joined the motion and

his counsel argued that severance was appropriate because counsel

was a potential witness for defendant in the witness tampering

charges.         Counsel   was   mentioned    in    defendant's      intercepted

telephone call with his co-defendant in which the State contended

they were arranging the murder of witnesses to prevent them from

testifying against defendant.             In response, the State filed a

motion seeking to disqualify counsel under RPC 3.7.

     On December 8, 2016, the trial judge granted the State's

motion to disqualify defense counsel because of her argument in

support     of    the   trial    severance.        We   subsequently     granted

defendant's motion for leave to appeal.

     Before us, defendant contends:

            POINT I
            THE TRIAL COURT WRONGLY APPLIED RULE OF
            PROFESSIONAL CONDUCT RPC 3.7 BY GRANTING THE
            STATE'S MOTION TO DISQUALIFY DEFENDANT'S
            ATTORNEY, CAUSING SUBSTANTIAL HARDSHIP AND
            IRREPARABLE HARM TO DEFENDANT.


                                          2                              A-1941-16T4
                    A.   The Trial Court Wrongly Applied The
               "Likely To Be a Necessary Witness" Test.

                    B.   The Trial Court Wrongly Applied RPC
               3.7 By Disqualifying Defense Counsel Before
               Trial Had Commenced-Disregarding That The Rule
               Provides Only That A Conflicted Lawyer "Shall
               Not Act As Advocate At Trial."

                    C.   The Trial Court Failed To Apply
               Subsection    (3)   Of    The   Rule, That
               "Disqualification Of The Lawyer Would Work
               Substantial Hardship On" Defendant.

For the reasons that follow, we affirm.

       On June 28, 2010, Darren Edwards and Shareef Allen were shot

in Jersey City based upon the State's theory of a Bloods gang

dispute.       Edwards died, but Allen survived.       T.R.,1 then thirteen

years    old,    witnessed   the    shooting   and   gave   a   video-recorded

statement to the police identifying defendant as the shooter.

Although Allen did not initially identify defendant as the shooter,

he eventually did so in 2012.          The case was originally listed for

trial on September 8, 2015, but was adjourned at the State's

request due to a witness's unavailability.

       The State's witness problems continued when it was not able

to locate Allen, and T.R. was afraid to testify because his life

was threatened and he was shot at numerous times.                 The State's

motion    to     admit   T.R.'s    statement   under   N.J.R.E.     804(b)(9),



1
    We use initials to protect the privacy of the witnesses.

                                        3                              A-1941-16T4
Forfeiture by Wrongdoing, was denied because the motion judge

determined there was insufficient evidence linking the threats to

defendant    -    T.R.   did   not   identify   who    threatened    him,   only

testifying that they were defendant's friends.                  We denied the

State's motion to stay the trial and granted leave to file an

interlocutory appeal.

     When the trial had been stayed pending our decision on leave

to appeal, the State discovered what it believed was additional

evidence of witness tampering.          While incarcerated at the county

jail, defendant's recorded telephone conversation with Robert

Dawson allegedly revealed their plan to keep T.R. and another

witness M.R. from testifying against him at the 2010 shooting

trial.      Defendant also referred to a meeting with his trial

counsel.         The   conversation,    together      with   other   wiretapped

telephone calls and intercepted text messages, resulted in a

superseding indictment incorporating defendant's 2010 shooting

charges and new witness tampering charges that included defendant,

Dawson, and two other co-defendants.

     Thereafter, defendants filed motions for speedy trial and

severance of the trial for the homicide and attempted homicide

charges from the witness tampering charges.                   In joining co-

defendant's severance motion, defendant's counsel Mary Ciancimino

argued in her brief that because she was mentioned in the telephone

                                        4                               A-1941-16T4
conversation between defendant and Dawson, she was a potential

witness   for   defendant    in   the       witness   tampering   charges     and

severance should be granted to "ensure . . . defendant receives a

fair trial and has all possible witnesses available to him at [the

witness tampering] trial."        She further added that the situation

needed court intervention.

     In response to Ciancimino's argument, the State filed a motion

under RPC 3.7 to disqualify her as defendant's counsel.                        In

opposing the application, Ciancimino retracted her argument that

she may be a potential witness for defendant, and contended instead

that she would only be a witness for the State should the State

"open the door on the issue."                The judge found no merit to

Ciancimino's attempt to retract her earlier unequivocal assertion.

Based upon our interpretation of RPC 3.7 in State v. Dayton, 292

N.J. Super. 76 (App. Div. 1996), the judge found the State's motion

was timely, and that, although the State never asserted Ciancimino

would be a witness to establish defendant tampered with witnesses,

the State met its burden by showing that she is or could be a

necessary witness based upon her initial assertion.                  The judge

also rejected Ciancimino's contention that, even if she is a

necessary   witness,   the   substantial         hardship   on    defendant    in

obtaining new counsel over six years after he was indicted does

not justify her disqualification by a mechanical application of

                                        5                               A-1941-16T4
RPC 3.7(a)(3).     The judge reasoned that the prejudice defendant

might face in finding new counsel is far outweighed by his right

to a fair and effective counsel.

     This court's "determination of whether counsel should be

disqualified is, as an issue of law, subject to de novo plenary .

. . review."      City of Atl. City v. Trupos, 201 N.J. 447, 463

(2010). A defendant is constitutionally entitled to choose which

lawyer will represent him or her, so long as that counsel is not

court-appointed.     State v. Kates, 426 N.J. Super. 32, 43 (App.

Div. 2012), aff'd, 216 N.J. 393 (2014).             "In other words, the

Sixth Amendment 'commands . . . that the accused be defended by

the counsel he believes to be best.'"               Ibid. (alteration in

original) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140,

146, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409, 418 (2006)).                The

United   States    Supreme   Court       has   classified    the    erroneous

deprivation of that right as a "structural error," regardless of

the quality of representation of substitute counsel, requiring

reversal because it affects "the framework within which the trial

proceeds."   Gonzalez-Lopez, supra, 548 U.S. at 150, 126 S. Ct. at

2564-65, 165 L. Ed. 2d at 420 (citations omitted); see Kates,

supra, 216 N.J. at 395-96.

     The right to select counsel is not absolute, and can be

curtailed    by   certain    restrictions,       including    the    court's

                                     6                                A-1941-16T4
"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."             Gonzalez-

Lopez, supra, 548 U.S. at 152, 126 S. Ct. at 2566, 165 L. Ed. 2d

at 421-22 (citation omitted).

     In a motion to disqualify counsel, the moving party bears the

burden of proving that disqualification is appropriate.              Kaselaan

v. D'Angelo Assoc., Inc., 144 F.R.D. 235, 238 (D.N.J. 1992).

"[D]isqualification is considered a drastic measure which courts

should   hesitate   to   impose   except     when    absolutely   necessary."

Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1114

(D.N.J. 1993) (citations omitted).           Importantly, "a defendant's

choice of counsel is not to be dealt with lightly or arbitrarily.

That choice should not be interfered with in cases where potential

conflicts of interest are highly speculative."             United States v.

Lacerda, 929 F. Supp. 2d 349, 360 (D.N.J. 2013) (citation omitted).

     RPC 3.7 states in pertinent part:

           (a) A lawyer shall not act as advocate at a
           trial in which the lawyer is likely to be a
           necessary witness unless:

           (1) the testimony relates to an uncontested
           issue;

           (2) the testimony relates to the nature and
           value of legal services rendered in the case;
           or


                                     7                                A-1941-16T4
            (3) disqualification of the lawyer would work
            substantial hardship on the client.

      It is undisputed that the exceptions in RPC 3.7(a)(1) and (2)

do   not   apply   here.   Our   analysis   thus   hinges   upon   whether

defendant's counsel is "likely to be a necessary witness" at trial,

and if so, whether the attorney's disqualification would inflict

a "substantial hardship" upon his client.

      "The ethical prohibition is not against being a witness, but

against acting as trial attorney in a case where it is likely that

the attorney's testimony will be necessary."         State v. Tanksley,

245 N.J. Super. 390, 393 (App. Div. 1991).         Importantly, the rule

does not require certainty that a lawyer will testify, only "a

likelihood that a lawyer will be a necessary witness."         J.G. Ries

& Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App.

Div. 2006).

      In this case, the State carried the burden of demonstrating

a likelihood that Ciancimino would testify at trial.           While the

State did not contend it would call Ciancimino to establish that

defendant and Dawson planned to keep T.R. and M.R. from testifying

against defendant regarding the 2010 shooting, we agree with the

trial judge that her initial assertion creates the likelihood that

she may be a witness at the witness tampering trial because she

was mentioned in defendant's telephone conversation in which the


                                    8                              A-1941-16T4
State's   tampering   charges   are        based.     Counsel's     attempt    to

backpedal from her initial assertion that she is a potential

witness for defendant is unpersuasive.

       RPC 3.7 is meant to protect the client's interest to make

sure that all evidence to advance his or her position is available

and used in a trial to further a just result.                See Freeman v.

Vicchairelli, 827 F. Supp. 300, 306 (D.N.J. 1993).                Considering

that defendant and Brooks would likely not testify, Ciancimino is

the only potential witness that can shed light on her conversation

with   defendant   that   was   part       of   the   intercepted    telephone

conversation.   Yet, even if defendant and Dawson were to testify,

their testimony might not be given the same weight as Ciancimino,

thereby reinforcing the need for her testimony. See Dayton, supra,

292 N.J. Super. at 86.

       Balancing the overwhelming interests at stake for defendant

in choosing his counsel and having all possible witnesses testify

in his defense warrants disqualification of Ciancimino so that she

would be available to testify in his defense.               The consequence

that defendant will have to retain new counsel does not overcome

the need for a fair trial. The trial court should give defendant's

new counsel adequate time to understand the issues at hand and

prepare for trial.



                                       9                                A-1941-16T4
     Lastly, under the circumstances here, there is no merit to

defendant's contention that should RPC 3.7 apply to disqualify

Ciancimino, it only disqualifies her from representing him at

trial, and not pretrial proceedings.       While RPC 3.7 only mentions

"[a] lawyer shall not act as advocate at a trial in which the

lawyer is likely to be a necessary witness unless[,]" we see no

logic to apply the rule so that a criminal defendant would have

separate   counsel   for   pretrial    motions    and   trial.   To     allow

Ciancimino to continue to handle defendant's pretrial matters

could prevent new defense counsel from implementing the trial

strategy that he or she envisions.               Furthermore, waiting to

substitute counsel could further delay the trial, as new counsel

would have to review discovery and pretrial proceedings, identify

witnesses, and prepare for trial.       Defendant's interests are best

served the sooner new counsel assumes representation.

     Affirmed.




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