RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2520-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN L. BETHEA,
Defendant-Appellant. ___________________________
Argued May 15, 2025 – Decided May 22, 2025
Before Judges Mawla, Natali, and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-11-1326.
Lucas B. Slevin, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Lucas B. Slevin, of counsel and on the briefs).
Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the brief). PER CURIAM
Defendant Kevin L. Bethea appeals from the denial of his motion for new
counsel and from his convictions and sentence for: second-degree attempted
sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1); two counts of third-
degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b); criminal restraint,
N.J.S.A. 2C:13-2(a); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b). We vacate, reverse, and remand for the reasons expressed in this opinion.
The victim was fifty-seven years old at the time of trial and had two adult
sons. In 2016, she was living by herself in Carteret. She testified she had known
defendant, whom she identified at trial, "pretty well, for over [forty] years."
They dated when she was sixteen years old for approximately one year, before
defendant left for college. The two kept in touch over the years and were in
contact "[q]uite often."
Approximately three weeks before the underlying incident, the victim
contacted defendant via Facebook and asked if he would be interested in
painting and installing flooring in her home. Defendant agreed. On September
17, 2016, she picked defendant up at the train station and brought him to her
house to paint. They went to a hardware store to purchase the paint and later
went out to eat. Defendant did not finish painting that day, and they decided he
A-2520-22 2 would spend the night in the victim's home. The victim slept in her upstairs
bedroom, while defendant slept on the lower level.
The following day, defendant woke up to finish painting but ran out of
paint and told the victim he would return to finish another day. She agreed
because she had to go to work, and she dropped defendant off at the train station
and told him she would call him to let him know when he could return.
Defendant texted the victim on the train ride home as follows: "[T]here[]
seems to be some related tension between us, and I would like to know why ."
The victim responded "there's no tension on my part. I'm not sure what you're
talking about." Defendant texted "there seems to be some I think sexual
tension[] between us." The victim responded "well that's not me. I don't . . . see
it that way. I see a friend—as being friends." The following day defendant
texted and "apologized for the inappropriate language that he used," and
"hope[d] [she would] accept his apology." The victim replied, "you're fine."
On September 30, 2016, defendant, unannounced, came to the victim's
home at 1:00 p.m. When she asked him why he was there, he claimed it was to
finish the work. She agreed to let him in but informed him he would not be able
to finish because she had not purchased paint. Defendant asked if he could have
a drink because he was "stressed out" and proceeded to make a drink for himself.
A-2520-22 3 The victim did not have a drink. Defendant then sat on a couch while the victim
sat on a chair. Then he told her, "I keep telling you that I'm stressed out, but
you're not listening to me."
The victim telephoned her son. During her call, defendant went upstairs,
which she assumed was for purposes of surveying the work he needed to
complete. While she was on the phone, she followed defendant upstairs and
found him in the bedroom inspecting a window area he was painting. He then
sat on a bench near the window, while she sat on the edge of the bed talking to
her son. After the victim completed the call, she called her father. Defendant
remarked she was making many phone calls, and the victim replied, "I'm taking
care of my business, . . . I don't mean to bother you."
At that point, defendant walked over to her and "said, well that's not why
I'm really here. Let me tell you why I'm really here." Defendant then said, "I
[came] to take my pu**y." The victim asked defendant to move and he
responded "no, I'm serious. I've come to take my pu**y." He then threw her
onto the bed and attempted to remove her pants, and she told him to stop. He
did not stop, and at some point, he straddled the victim's legs and spread them.
Defendant unbuckled his belt, and the victim began screaming. He covered her
mouth with his left hand and said "[i]f you keep screaming—I swear I'll kill you
A-2520-22 4 up here. Stop screaming. I don't want to hurt you." The victim kept screaming
and attempting to get away. She begged defendant to stop. Instead, he touched
her breasts over her shirt and "was kissing all over [her] neck . . . saying I told
you in my text that I needed you. I keep telling you I need you. I keep telling
you I want you."
To escape, the victim asked defendant if he could stop to let her retrieve
a condom from another room, but he refused and kept kissing her. She then said
she needed to use the bathroom. Defendant agreed but told her "you better not
try [any]thing." The victim ran downstairs to escape from the home, but
defendant ran behind her and caught her at the door. She testified "[h]e pulled
[her] by [her] hair and told [her] to get back and made [her] go sit in the kitchen
in this little chair by the table." Defendant "said stop screaming or I'm going to
kill you here and I don't want to hurt you." The victim continued to scream.
Defendant hit her nose, grazing her.
Defendant then told the victim he was going to smoke, but warned her if
she "move[d], he's going to catch . . . and kill [her]." Once defendant went
outside to smoke, the victim texted her son to call the police to her home and
texted her father to get to her house.
A-2520-22 5 Defendant returned and sat at the kitchen table. He asked the victim who
she was texting and she claimed she was sending her niece wedding
congratulations. Defendant then looked at the victim's face and said "[l]ook[,]
. . . you made me hurt you." He said "come on" but she refused to move.
Defendant then told her, "we can do this the easy way, or we can do this the hard
way." The victim refused to budge and as defendant stood up to approach her,
the police entered the home.
Sergeant Douglas Greenberg of the Borough of Carteret Police
Department testified he responded to the victim's residence for a sexual assault
in progress. He drew his weapon and entered the residence. In the kitchen he
"saw a female sitting at the kitchen table. And a [male] standing at the adjacent
end of the table." The sergeant recalled the kitchen was "quite dark." He
"pointed [his] service weapon at the male and ordered him to the ground ," then
arrested him. At trial, Sergeant Greenberg identified defendant as the man he
arrested.
Once the sergeant secured the scene, the victim ran to the rear of the house
crying. The victim attempted to tell police what happened but was too upset.
She "didn't tell [the police] in detail what happened" and "was [just] trying to
tell them a little bit." The victim could not recall what she told them and
A-2520-22 6 admitted that when they asked her if she and defendant had a relationship, she
had said no, but she "didn't think about when [she and defendant] were [sixteen]
and [seventeen]." However, she told police at the scene that she and defendant
were "friends." She also declined medical treatment at the scene and did not
seek a restraining order.
The victim and defendant were brought to the police station. She gave the
police a formal statement and investigators took photos of her face showing a
cut to her nose. Defendant also gave a statement to police.
Defendant did not testify at trial, but attempted to call Detective David
Zavistoski, who was involved in the State's preparation of the case for trial.
During the pre-trial preparation, the victim said defendant had punched her in
the face, giving her a black eye, an injured lip, and a cut on her eye. The judge
denied defendant's request because the victim had not been confronted with this
information as a prior inconsistent statement during her testimony . Admitting
this statement through the detective would constitute hearsay.
As a result, the defense called no witnesses. The jury subsequently
convicted defendant.
The trial judge granted the State's motion for an extended-term sentence.
She sentenced defendant to: twenty years' imprisonment on the second-degree
A-2520-22 7 attempted sexual assault conviction along with parole supervision for life , into
which she merged the third-degree criminal restraint conviction; a concurrent
sentence of five years for the third-degree terroristic threats conviction under
N.J.S.A. 2C:12-3(b) into which the other third-degree terroristic threats
conviction under N.J.S.A. 2C:12-3(a) was merged; and an eighteen-month
concurrent sentence on the fourth-degree criminal sexual contact conviction.
Defendant raises the following points on appeal:
POINT I
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN THE COURT ARBITRARILY DENIED HIS REQUEST FOR A NEW DEFENSE ATTORNEY WITHOUT CONDUCTING ANY INQUIRY.
A. Because there was good cause supporting the appointment of a new public defender, the court's failure to conduct any inquiry as to [d]efendant's request for new counsel constituted reversible error.
B. Because application of the Furguson [1] factors required an adjournment for [d]efendant to obtain retained counsel, the court's failure to conduct any inquiry as to [d]efendant's request for new counsel constituted reversible error.
C. The prosecutor's improper summation compounded the prejudice to [d]efendant by
1 State v. Furguson, 198 N.J. Super. 395 (App. Div. 1985). A-2520-22 8 incorrectly implying that [d]efendant bore the burden of proof.
POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY TO EXERCISE CAUTION IN EVALUATING ORAL STATEMENTS ALLEGEDLY MADE BY DEFENDANT. (Not Raised Below).
POINT III
DEFENDANT'S CONVICTION FOR TERRORISTIC THREATS, N.J.S.A. 2C:12-3(a), MUST BE REVERSED BECAUSE THE COURT PROVIDED JURY INSTRUCTIONS THAT HAVE BEEN INVALIDATED BY STATE v. FAIR.[2] (Not Raised Below).
POINT IV
RESENTENCING IS REQUIRED FOR SEVERAL REASONS. (Partially Raised Below).
A. Because [d]efendant was convicted of attempted sexual assault, which is not an enumerated predicate offense under N.J.S.A. 2C:43-6.4(e), the court's imposition of the mandatory extended term statute was improper. (Not Raised Below).
B. Because [d]efendant was not advised that he would be subject to the mandatory extended term sentence under N.J.S.A. 2C:43-6.4(e), the court's imposition of that extended term was improper.
2 256 N.J. 213 (2024). A-2520-22 9 C. The court imposed a [thirty dollar] monthly penalty without considering whether [d]efendant had the ability to pay, in contradiction of N.J.S.A. 30:4-123.97. (Not Raised Below).
I.
In point I defendant argues he was deprived of the constitutional right to
counsel of his choosing. He claims the trial judge denied his request for new
counsel and to adjourn trial to retain private counsel without conducting the
appropriate inquiry required by law, despite the fact there was good cause shown
to appoint new counsel.
The Friday before jury selection was to begin, defense counsel moved to
adjourn trial. She asserted she was simultaneously preparing for trial and
defendant's parole violation hearing, which was "akin to preparing for two
different cases at the same time." Counsel claimed that not granting the
adjournment would create "a very viable automatic [post conviction relief
(]PCR[)] claim because [she] . . . [would] not [be] able to one hundred percent
concentrate on the trial or one hundred percent concentrate on the [parole
violation] hearing, as [she would be] doing both at the same time." The trial
judge denied the motion and jury selection began as scheduled on Monday.
On the third day of jury selection, defendant moved for new counsel .
Defense counsel advised the judge defendant wanted to retain a new attorney
A-2520-22 10 because he "lost . . . confidence that [his counsel had] the ability to properly
represent him in this matter." The trial judge responded that she was going to
continue with jury selection. The following colloquy then ensued:
[DEFENSE COUNSEL]: Your [h]onor, I do believe that in order for us to continue with jury selection[, defendant] has to be voir dired as to the understanding as he does have the right to retain the counsel of his . . . choice. . . .
And in this case I believe that at the very least[, defendant] has to be voir dired as to the decision to go forward and the . . . [c]ourt has to provide him with the information he has to know either to continue pro se or give him the opportunity to retain counsel. . . .
THE COURT: I'm not hearing you on . . . proceed[ing] pro se. I'm hearing that . . . he's not confident . . . in your abilities to defend him. I don't know where that's coming from. But I'm not hearing he wants to proceed pro se.
[DEFENSE COUNSEL]: If I may, [y]our [h]onor. My understanding is . . . yesterday['s] . . . parole hearing did not happen due to a staff lapse [by] th[e] State . . . .
Based on that . . . [defendant] essentially believed . . . that because I was not able to make that happen which doesn't have nearly as high of an implication for his freedom and for his ability to proceed, especially in [a] case such as this where because he is extended term [eligible] if he is convicted he faces a significant amount of jail time, that he does not believe that I have the ability to represent him in this matter[,] and I cannot be the person who makes sure that he has the best chance at freedom as possible. . . . [T]here's case law
A-2520-22 11 that . . . he has the right to stop [the] proceeding, but also that his right to counsel of his choice would not be adhered to if we were to continue at this point.
The trial judge then questioned defendant:
THE COURT: [Defendant], your more than capable lawyer has indicated to me that it is your belief that she is no longer able to represent you adequately and you wish not to proceed with her as your attorney, is that right?
[DEFENDANT]: That's correct, [y]our [h]onor.
THE COURT: Okay. And do you have an attorney standing ready and willing to step in as we continue with our jury selection?
[DEFENDANT]: I do not. I'm currently in the process of retaining [an] attorney. My family has agreed to retain an attorney on my behalf. . . . I've waited patiently. It's been five years now and, [y]our [h]onor, I've waited patiently . . . and worked with my attorney to resolve . . . these issues . . . in this [c]ourtroom.
THE COURT: Resolve what issues?
[DEFENDANT]: The . . . issue . . . of my . . . charges ....
THE COURT: Okay. And you're here, sir, for your trial today.
[DEFENDANT]: That's correct, [y]our [h]onor. And . . . this is the sixth prosecutor and the fifth judge that I am now appearing in front of.
....
A-2520-22 12 THE COURT: Exactly . . . why we should be proceeding today.
[DEFENDANT]: . . . [Defense counsel] has not filed one motion . . . on my behalf throughout the entire five years despite my conversations with her and my suggestions to her about . . . what I want to happen in this . . . case . . . none of that has been adhered to.
THE COURT: Okay.
[DEFENDANT]: So I've been basically patiently [waiting] and nothing has been going on . . . without my input or . . . .
[DEFENDANT]: . . . anything that I've had to say about this case. So . . . I'm basically tired. It's a fiasco[,] and I no longer want to be a part of it.
So what's going to happen on my part, judge, and [I] . . . certainly didn't want to come at the . . . [eleventh] hour with this nonsense . . . in my opinion. But I don't think she's effective as my counsel. And . . . my life is in the balance. So I'm not the type of person that's going to stand idly by [to] watch myself get hung.
[DEFENDANT]: That's not going to happen.
THE COURT: [Defendant . . . .]
[DEFENDANT]: So what's going to happen for me, [y]our [h]onor, is I'm no longer going to participate. So I'm not going to ask the [c]ourt not to even bring me back here unless I have a new attorney. And so I would
A-2520-22 13 just sit downstairs in the bull pen or I will stay at [the c]ounty [j]ail. And if you guys try to make me come back here involuntarily, then it's going to be a problem. I'm not going to come.
THE COURT: Okay. All right.
You don't want to participate, that's . . . your right not to participate if that's what you want to do.
[DEFENDANT]: That's correct.
You're here today for jury selection. We're going to continue with jury selection and once trial starts— it's your position that you don't want to be a part of it.
[DEFENDANT]: Your [h]onor, I don't even want to stay here for jury selection.
THE COURT: Okay. That's his choice.
Jury selection continued. Trial counsel continued to represent defendant
during the trial, until the Office of the Public Defender requested to have a pool
attorney appointed for defendant, because continued representation by trial
counsel would constitute a conflict.
After the verdict, defendant's new counsel moved for a new trial, alleging
ineffective assistance of trial counsel. He claimed trial counsel failed to address
the fact the victim and defendant had a long-term relationship and that she
visited him while he was in prison on a prior offense. Defense counsel also
A-2520-22 14 asserted trial counsel did not present witnesses to testify his alleged conduct was
out of character and did not extensively cross-examine the victim about her
inconsistent statements in describing the incident.
The trial judge denied the motion and made oral findings. She found trial
counsel was not ineffective because the victim had testified about the nature of
the parties' relationship before the incident. The decision not to introduce
evidence the victim had visited defendant in jail was strategic because defense
counsel may have not wanted to show defendant was incarcerated between 1998
and 2001. Eliciting character evidence was problematic "given . . . [d]efendant's
record of similar conduct." Additionally, the judge concluded the extent of the
cross-examination of the victim "would not have impacted the jury's ability to
. . . assess[] . . . credibility of the underlying allegations made here."
The trial judge noted defendant did not retain private counsel, as he
represented "nor was there any indication that private counsel had even be[en]
consulted with any expectation of taking this case and being ready to try this
case." After the parole violation hearing was adjourned, original trial counsel
"indicated . . . she was prepared to move forward with this case." The judge
observed that during her "colloquy with . . . [d]efendant he offered no time
frames or any realistic possibility that he'd be able to retain counsel for the trial."
A-2520-22 15 She found his assertion that he lacked confidence in trial counsel "suggested
nothing more than a delay tactic."
The judge noted that in deciding to proceed with the trial, she considered
the fact the case had been adjourned several times. She also considered "the
nature of the allegations and the need to bring this matter to a close for both the
victim and . . . [d]efendant." Furthermore, "[t]he State . . . and two competent
assistant public defenders were available to try this case. Jurors, witnesses, and
the victim were summoned for trial that was being conducted during the
pandemic." The judge found "[d]efendant's efforts, . . . at delaying this matter
under the guise of dissatisfaction with his assigned public defender was not a
genuine attempt to obtain counsel of his choice."
A decision on whether to grant a continuance to a defendant who wants to
change counsel is reviewed for an abuse of discretion. State v. Maisonet, 245
N.J. 552, 560 (2021). "The Sixth Amendment of the United States Constitution
and Article I, Paragraph 10 of the New Jersey Constitution both guarantee all
defendants in criminal prosecutions the right to have the assistance of counsel
for their defense." State v. Outland, 245 N.J. 494, 505 (2021). Although that
right generally includes a defendant's right to the counsel of their choice, "an
indigent defendant who is represented by appointed counsel does not enjoy a
A-2520-22 16 right to choose counsel. The Office of the Public Defender retains the flexibility
to substitute one attorney from its office for another." State v. Kates, 426 N.J.
Super. 32, 43 (App. Div. 2012) (citing State v. Williams, 404 N.J. Super. 147,
170 (App. Div. 2008)). "And all defendants must act 'with reasonable diligence'
when choosing counsel to avoid delaying the efficient operation of the justice
system." Maisonet, 245 N.J. at 566 (quoting Furguson, 198 N.J. Super. at 401).
"[A] court may not require the Public Defender to assign new counsel to
a defendant who was dissatisfied with the attorney assigned to represent him,
absent a showing of 'substantial cause.'" State v. Coon, 314 N.J. Super. 426,
438 (App. Div. 1998) (quoting State v. Lowery, 49 N.J. 476, 489-90 (1967)).
"[A]n irreconcilable conflict establishes good [or substantial] cause . . . ." State
v. Coclough, 459 N.J. Super. 45, 55 (App. Div. 2019) (citation omitted). So too
does an attorney's failure to provide "loyal counsel" or "open communication."
Ibid. (quoting State v. Miller, 216 N.J. 40, 63-64 (2013)). An assigned attorney
is also required to advise the defendant and "do[] whatever possible to represent
[the defendant] competently." State v. Rinaldi, 58 N.J. Super. 209, 214 (App.
Div. 1959).
"A criminal defendant's constitutional guarantee of loyal counsel and open
communication . . . does not equate to a guarantee of attorney-client rapport."
A-2520-22 17 Miller, 216 N.J. at 64. "Disagreement over defense strategy does not rise to the
level of good cause or substantial cause." Coon, 314 N.J. Super. at 438 (citing
State v. Crisafi, 128 N.J. 499, 518 (1992)). Neither do the constitutional
implications behind the right to counsel "guarantee that counsel appointed for a
defendant shall measure up to [their] notions of ability or competency." Ibid.
A substantial cause analysis was not required here because defendant told
the judge he was in the process of retaining an attorney with help from his
family. Moreover, defendant's complaints about counsel regarded strategy.
However, because defendant requested his public defender be replaced by
private counsel, the judge needed to analyze the Furguson factors.
In considering whether to adjourn a matter for a defendant to seek new
counsel, "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 constitution al
right to obtain counsel of [their] own choice, on the other." Maisonet, 245 N.J.
at 566 (2021) (quoting State v. Hayes, 205 N.J. 522, 538 (2011)). "To help trial
judges balance the relevant interests when a defendant seeks an adjournment to
A-2520-22 18 retain counsel, we adopted a series of factors from the D.C. Circuit's 1978 ruling
in Burton."3 Id. at 566; Furguson, 198 N.J. Super. at 402. They 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 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.
[Furguson, 198 N.J. Super. at 402 (quoting Burton, 584 F.2d at 490-91).]
"Trial courts have broad discretion in weighing the factors and striking
the proper balance, and their decisions are entitled to deference on appeal."
Maisonet, 245 N.J. at 566 (citations omitted). Judges are "require[d] . . . to
conduct a 'reasoned, thoughtful analysis'" of these factors when a defendant
requests an adjournment to hire new counsel. Id. at 559 (quoting State v. Kates,
3 United States v. Burton, 584 F.2d 485 (D.C. Cir. 1978). A-2520-22 19 216 N.J. 393, 396-97 (2014)). "If a trial judge does not conduct the proper
analysis . . . it may be necessary to reverse a conviction and start anew." Id. at
560.
"An arbitrary or erroneous ruling that amounts to an actual deprivation of
the right to counsel of one's choice . . . implicates structural error." Id. at 566;
see also United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (noting if
there has been an "erroneous deprivation of the right to counsel of choice" such
an error "unquestionably qualifies as 'structural error.'"). Structural errors "'defy
analysis by harmless-error standards' because they 'affec[t] the framework
within which the trial proceeds, and are not simply an error in the trial process
itself.'" Gonzalez-Lopez, 548 U.S. at 148 (alteration in original) (quoting
Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). "Harmless-error
analysis" in the context of the right to counsel of choice "would be a speculative
inquiry into what might have occurred in an alternate universe." Id. at 150.
"But courts cannot presume structural error from a trial court's failure to
ask questions or make explicit findings about the Furguson factors if the record
otherwise reveals that an adjournment to seek to hire new counsel was not
appropriate under the circumstances." Maisonet, 245 N.J. at 566-67. "Instead,
if an appellate court can glean or infer the relevant considerations from the
A-2520-22 20 record, it can analyze the factors to determine whether the trial court abused its
discretion in denying an adjournment." Id. at 567.
The State concedes the trial judge did not analyze the Furguson factors
when defendant initially asked for new counsel and when she decided his motion
for a new trial. Regardless, both parties assert the record is sufficient for us to
decide the issue. We address the Furguson factors in turn.
As noted, defendant told the judge he was in the process of retaining an
attorney with the help of his family. Although the judge found defendant
provided "no time frames or any realistic possibility that he'd be able to retain
counsel for the trial," she did not inquire about defendant's timeline to determine
the length of the delay pursuant to the first Furguson factor. See Kates, 426 N.J.
Super. at 52 ("[I]t was incumbent upon the court to inquire of defendant . . . , to
determine the length of the requested delay . . . .").
The State's case was not complex: it called two fact witnesses and entered
two photographs into evidence. There was no forensic evidence or expert
testimony, and the fact witness testimony lasted one day, while the trial itself
was just three days. These facts did not create a reasonable inference that the
retention of new counsel would have caused a considerable delay. Thus, the
first and eighth Furguson factors favored defendant.
A-2520-22 21 Trial was initially scheduled to occur in 2018 but was adjourned to 2019
because defendant was diagnosed with prostate cancer and attended radiation
therapy five days per week in January 2019. Thereafter, there were scheduling
conflicts on both sides and in the court's schedule, which delayed the case into
2020, including the State's inability to reach the victim on several different dates
and her diagnosis with multiple sclerosis. Trial was supposed to begin in
February 2020, but defense counsel failed to appear, despite defendant being
present and available. This was followed by the prosecutor being unavailable
for the next scheduled date because of another ongoing trial. The onset of the
COVID-19 pandemic one month later, delayed trial until March 2021 and
required new pretrial conferences to ready the matter. Ultimately, trial took
place in July 2021. Therefore, the second Furguson factor did not favor
defendant.
The third factor, which requires the court to balance the convenience or
inconvenience to the litigants, counsel, and court, "is measured, in part, by the
timing of an adjournment request." Maisonet, 245 N.J. at 570. Although
defendant made his request on the third day of jury selection, the judge did not
inquire whether the State objected or if the parties' and witnesses' schedules
A-2520-22 22 would permit an adjournment. The record also offers no indication of the court's
own schedule.
The fourth Furguson factor favored defendant because he gave legitimate
reasons for the delay, namely, defense counsel: not conducting motion practice
during the entirety of her representation; allegedly ignoring his suggestions; and
acting without his input. Defense counsel did not allay these concerns when she
expressed the Friday before trial that she had not been able to focus on the trial ,
which would pose a "very viable" PCR claim if trial continued as scheduled.
The trial judge did not address these issues.
The fifth factor did not favor defendant because he contributed to the
delay. He acknowledged trial counsel had represented him for five years and
outlined why he was unhappy with her representation. This showed he had
enough time to retain his own attorney, but "did not act with reasonable
diligence" to do so. Maisonet, 245 N.J. at 571.
There is insufficient evidence in the record to assess the sixth Furguson
factor. Although defendant told the judge he was retaining an attorney, the judge
made no inquiry into who defendant had contacted, when he planned to retain
them, or whether that attorney would be prepared to try the case. The
circumstances called for a more thorough inquiry as to defendant's reasons for
A-2520-22 23 wanting new counsel at such a late date and an explanation of why the judge
considered defendant to be a delay tactic.
Similarly, the trial judge made no findings about whether there was an
identifiable prejudice to defendant by denying his request as required under the
seventh factor. However, prejudice was inferable from trial counsel's
trepidation about trying the case.4 There was also actual prejudice as evidenced
by trial counsel's failure to cross-examine the victim on her prior inconsistent
statement to Detective Zavistoski. The victim told the detective defendant
"punched her in the face, leaving her with a black eye, a busted lip[,] and a cut
on her eye." At trial, the victim testified defendant only "grazed" her nose and
the pictures introduced by the State did not show the injuries she had described
to the sergeant. The victim also told Detective Zavistoski that defendant said he
would break her neck, but she did not testify to that at trial.
Although we do not comment on its admissibility because it is a matter of
the trial judge's discretion, we note trial counsel had evidence the victim had
been previously convicted of filing a false police report in an unrelated
proceeding. There was also a witness prepared to testify the victim had a
4 Trial counsel's comments about not being able to try the case also satisfied the ninth catchall factor under Furguson. A-2520-22 24 reputation for lying and others who would testify the crime was out of character
for defendant, but they were never called. The defense had access to defendant's
medical records from the same year as the offense, showing he suffered from
erectile dysfunction due to the cancer, which was not adduced.
Our review of the record shows the majority of the Furguson factors
favored defendant, and the trial judge misapplied her discretion by not assessing
all the factors and making the appropriate findings. We are constrained to
conclude this was a structural error, which deprived defendant of his
constitutional right to counsel of his choice. For these reasons, we vacate
defendant's convictions and remand for a new trial.
II.
Because we have ordered a new trial, we need not reach the arguments
defendant raises in points I.C., II, or IV. As for point III, the State, in its Rule
2:6-11(d) submission, concedes our recent decision in State v. Russell, ___ N.J.
Super. ___, ___ (2025) controls. Russell afforded Fair pipeline retroactivity.
Fair held when a jury is adjudicating whether a defendant is guilty of terroristic
threats, they must be instructed to consider the context and perspective of one
similarly situated to the victim. The State nonetheless urges the lack of an
instruction under Fair was harmless error.
A-2520-22 25 "Appropriate and proper charges are essential for a fair trial." State v.
Scharf, 225 N.J. 547, 581 (2016) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)). "[E]rroneous instructions on material points are presumed" to be
prejudicial. State v. McKinney, 223 N.J. 475, 495 (2015) (quoting State v.
Bunch, 180 N.J. 534, 541-42 (2004)). "Such errors are 'poor candidates for
rehabilitation under the harmless error philosophy.'" State v. Vick, 117 N.J.
288, 289 (1989) (quoting State v. Crisantos (Ariagas), 102 N.J. 265, 273 (1986)).
Russell noted Fair announced "a new rule of constitutional dimensions,"
which affects "a defendant's right to a fair trial." ___ N.J. Super. at ___ (slip
op. at 13-14). We concluded it was, therefore, essential to afford the new rule
pipeline retroactivity to "ensure the ability to timely review and correct a
criminal conviction," and avoid wrongful convictions. Id. at ___ (slip op. at 14).
For these reasons, we part ways with the State's view that defendant's terroristic
threats convictions could survive under a harmless error analysis.
Vacated, reversed, and remanded. We do not retain jurisdiction.
A-2520-22 26