NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3235-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAQUAN A. SUBER, a/k/a AQUIL JAQUAN SUBER,
Defendant-Appellant.
Submitted October 19, 2020 — Decided December 11, 2020
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-12-1637.
Kathleen M. Theurer, attorney for appellant.
Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel; Catherine A. Foddai, Legal Assistant, on the brief).
PER CURIAM Defendant appeals from his convictions following a jury trial , alleging
several evidential errors and challenging the denial of his request for an
adjournment of the trial to retain private counsel. After a review of the
contentions in light of the record and applicable principles of law, we affirm.
We derive our facts from the evidence presented at trial. In September
2017, the Frate family lived on the main floor of a home. Defendant rented the
downstairs apartment.
In the early morning hours of September 3, 2017, members of the Frate
family smelled gas coming from defendant's apartment. They had also smelled
gas several days earlier. Carol Frate and her son, Cody, unlocked the backdoor
entrance to the apartment and went inside where they observed the gas stove
was on without any flames. They also noticed a rope was tied to the door that
connected defendant's apartment to the Frate's residence. The rope was hooked
to a pillar and then to the stove; the end of the rope was in a liquid-filled bottle
on the floor in front of the stove. The Frates turned the stove off and opened the
outside door to air out the apartment. They went back into their home, taking
the rope and the liquid-filled bottle it was in. Later, when Carol heard defendant
return home, she went downstairs and told him he had to leave the apartment
because of the recent incidents.
A-3235-18T4 2 At around 5:00 a.m., Frate called the police. When two Fort Lee Police
Department officers responded, Carol and Cody told the officers about
defendant leaving the stove on twice and their safety concerns. The officers
spoke with defendant, who admitted he left the stove on and had a dispute with
Frate about leaving the apartment. The officers informed him of the dangers of
leaving a gas stove on, but since the officers did not detect any odor of gas, they
left.
Prior to these events, Cody had contacted Fort Lee Detective Dennis
Conway regarding his stepbrother, Ronald, who had been missing for several
days. Conway told him to call again the next day if Ronald had not returned.
When Conway arrived at work on September 3, 2017, he learned Ronald was
still missing. After learning Ronald had been arrested several days earlier and
was incarcerated in the Bergen County jail, Conway and his partner, Detective
Dennis Pothos, went to the Frates' home at 10:00 a.m. to give them the
information.
After discussing Ronald's whereabouts, Carol told the detectives about the
incidents that occurred hours earlier, describing the string tied to the stove with
its other end in a liquid-filled bottle near the stove. Pothos told Frate they would
speak with defendant to make sure he was alright.
A-3235-18T4 3 The detectives exited the home and turned left down the driveway towards
the backdoor of the downstairs apartment. Although the detectives were not in
uniforms, their badges were displayed, and they were wearing shirts bearing the
Fort Lee Police Department emblem. When defendant answered the door, he
asked why they were there and whether they were going to arrest him. The
detectives said they were not arresting him and just wanted to ask some
questions.
Defendant first stated he could not recall leaving the stove on and then
said he might have when he was cooking. When the detectives asked him
whether he was mixing flammable fluids, defendant first said he could not
remember and then said he might have because he was bored. Defendant denied
tying a string to the stove.
As the detectives were speaking with defendant, Pothos noticed he was
giving evasive answers and blocking access to the apartment. Pothos said "262"
to Conway, which signaled a need to call a helpline telephone number. This
telephone number gives Bergen County law enforcement the ability to speak
with someone at Bergen Regional Medical Center and ask for guidance on how
to handle certain situations involving individuals who may require mental health
counseling. In some instances, a professional psychologist is sent out to speak
A-3235-18T4 4 with the party or the officer may be directed to transport the individual to the
medical center to be evaluated. Conway called the helpline and Pothos
requested a marked unit.
When police officer Andrew Lakawicz arrived, defendant grew more
agitated. Lakawicz was wearing a body microphone and the device was
recording when Pothos repeated the questions he had asked defendant.
Defendant gave similar responses—that he might have left the gas on
accidentally while cooking, he might have been mixing fluids in a bottle, and
that he did not tie a string to the stove.
Defendant refused to let Pothos perform a protective search of him and
closed the storm door. Pothos and Lakawicz then entered the apartment and saw
defendant grab a handgun from the top of the refrigerator and turn towards the
officers. Pothos yelled that defendant had a gun and pushed Lakawicz outside.
Pothos then positioned himself behind the detached garage. After taking cover,
the officers drew their weapons as defendant stood in the doorway. A street
camera recorded footage of defendant standing in the doorway pointing his gun
at Pothos. The detective repeatedly asked defendant to put the gun down, saying
he was there to help him.
A-3235-18T4 5 Defendant closed the storm door and Pothos requested backup. When
defendant re-opened the door, he again pointed his weapon at Pothos and the
other officers on the scene. A neighbor on the second floor of his home recorded
on his cell phone defendant pointing his gun at Pothos, Conway, and a third
officer.
At one point, defendant left the doorway and the officers lost sight of him.
The street camera recorded defendant standing near the garage pointing his gun
at Pothos, who was in the back yard. Upon realizing this, Pothos immediately
moved to the front yard.
Defendant also moved to the front yard and fired his weapon towards
Pothos and two other officers. The three officers returned fire. Pothos's shot
struck defendant, causing him to drop to the pavement. When defendant raised
his gun again, Pothos discharged two more rounds. The shots struck defendant
again and caused him to drop his weapon. Nevertheless, he got up and ran
towards Pothos. Pothos kicked defendant in the stomach as he approached, and
defendant took off towards the street. Pothos caught up to defendant and tackled
him from behind. Other officers at the scene helped restrain defendant as he
resisted arrest.
A-3235-18T4 6 Defendant was charged in an indictment with the following offenses:
third-degree aggravated assault by pointing a firearm at a law enforcement
officer, in violation of N.J.S.A. 2C:12-1(b)(9) (counts one through seven);
fourth-degree aggravated assault with a firearm, in violation of N.J.S.A. 2C:12-
1(b)(4) (counts eight and nine); first-degree attempted murder, in violation of
N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1) (counts ten through twelve); third-
degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3)(a) (count thirteen);
second-degree possession of a weapon for an unlawful purpose, in violation of
N.J.S.A. 2C:39-4(a) (count fourteen); first-degree possession of a weapon
without having obtained a permit, in violation of N.J.S.A. 2C:39-5(b) and
2C:39-5(j) (count fifteen); and second-degree possession of a firearm by a
previously convicted person, in violation of N.J.S.A. 2C:39-7(b) (count sixteen).
Counts eight and ten were later dismissed.
During a court proceeding on November 5, 2018, the court considered
motions filed by defense counsel and defendant. Because of the pro se filings,
the court inquired of defendant whether he intended to represent himself.
Defendant replied no.
Defense counsel then advised the court that defendant wanted a different
public defender. The judge responded: "We've been over this four times now
A-3235-18T4 7 . . . . You've asked the Public Defender's Office to change your counsel. They've
told you . . . no. You don't have the right to pick your attorney."
Defendant advised the court he had spoken to the "head public defender"
and he was waiting for a response as to his request for a change of counsel.
Defense counsel stated he too had spoken to the head of the office who stated
that defendant could not "pick and choose his attorney. Either he can hire private
counsel, he can continue with me or he can make an application to . . . go pro se
. . . ."
The judge noted defendant had twice stated he did not wish to represent
himself. He advised defendant that the Public Defender's Office was not going
to assign him a new attorney. After ruling on the motions, the judge reminded
the parties of the December 4, 2018 trial date and his expectation that jury
selection would begin that day, with opening statements to occur immediately
following the seating of a panel.
On Tuesday, December 4, the parties convened for trial. The court
acknowledged the receipt of a letter from defendant the previous Thursday
requesting to represent himself with standby counsel from the Public Defender's
Office. Defendant had also submitted a number of motions on December 4.
A-3235-18T4 8 After a review of the documents, the court concluded the motions were the same
applications previously presented at the November 5 hearing.
The court advised defendant he would conduct a hearing to determine
whether defendant was "exercising a knowing, intelligent and voluntary waiver
of his right to counsel." In response, defendant said he wanted to retain private
counsel.
The judge reminded defendant his trial was starting that day and the "time
to retain a private attorney expired long ago." Defendant admitted he did not
have a private attorney ready to begin that day, but he intended to retain one and
needed an adjournment. He conceded he had not previously asked the court for
the opportunity to retain private counsel.
Defense counsel informed the court he had spoken with the attorney
defendant had contacted and learned that counsel was currently involved in a
three-defendant murder trial in Passaic County. The potential new attorney said
"he would consider getting involved [if] the [c]ourt . . . g[a]ve an extension of
time." Defense counsel confirmed the Passaic County case had started two
weeks earlier and he did not know when it was expected to conclude.
Because defendant had told the court previously that he did not wish to
proceed pro se, the court asked him about his change of mind. Defendant stated
A-3235-18T4 9 he had "evidence that [he] wanted to put into motions and [he] had case law[]
[he] wanted to put in motions." The judge reminded defendant, as he had told
him previously, that it was not appropriate to address the specific issues through
pretrial motions. When the court asked again why he wanted to proceed pro se,
defendant asserted defense counsel had not obtained records he asked him to
obtain and had not retained any law enforcement witnesses to support his
defense. Defendant also maintained there was a "severe breakdown" in
communications with defense counsel.
After conducting a comprehensive hearing, the judge denied the
application, finding it was made to delay the trial and the "alleged waiver was
[not] . . . knowing and voluntary and intelligent." The judge found defendant
was not capable of representing himself and further noted defendant conceded
it was not in his best interest to represent himself.
The next morning, prior to the start of jury selection, the court denied
defendant's request for an adjournment to retain private counsel. In his oral
decision on December 5, 2018, the court stated:
Yesterday for the first time defendant asked to adjourn the trial so that he could retain private counsel. Procedurally this trial was scheduled for . . . [December 4, 2018] on October 9[], 2018 and there was significant motion practice, in November I decided three motions that were filed by the defense. I never . . . heard a
A-3235-18T4 10 request by . . . defendant to retain private counsel until . . . the day the trial was scheduled to start . . . . [I]t is my firm belief that this adjournment request, which was made at the very last minute, is merely an attempt to postpone the start of this trial.
[Defendant] waited until . . . the day of trial to . . . make the request for the first time. Defendant has experienced trial counsel assigned to defend him. Mr. Weichsel has decades of trial experience, I've seen him try cases in this . . . courtroom and he is . . . eminently qualified to . . . represent . . . defendant in this case and he is prepared to begin the trial.
From what I understand[,] . . . defendant has not actually retained private counsel. That he has contacted an attorney who might . . . some time in the future get involved in this case, but . . . certainly is not, for professional reasons as I understand it, not prepared or able to . . . participate in the trial at this time or[,] . . . as far as . . . we know[,] even in the . . . near future. We have no idea if that . . . counsel would actually become involved in the case.
What I do know for sure is that . . . changing counsel at this point would result in a very lengthy adjournment of the trial because . . . of the trial schedule that . . . I have through . . . 2019, but also because . . . the new counsel would need . . . time to prepare for trial.
So, for all of those reasons, most of all because the request for the adjournment was as untimely as . . . you could ever have, the request for an adjournment is denied.
A-3235-18T4 11 The jury convicted defendant on fourteen counts. He was sentenced to an
aggregate term of forty-five years in prison with a thirty and one-half-year
period of parole ineligibility. This appeal followed.
Defendant presents the following issues for our consideration:
POINT I. DEFENDANT'S REQUEST FOR AN ADJOURNMENT OF THE INITIAL TRIAL DATE, IN ORDER TO OBTAIN COUNSEL OF HIS CHOOSING, WAS IMPROPERLY DENIED.
POINT II. INTRODUCTION OF OTHER CRIMES EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III. THE COURT ERRED IN FAILING TO EVALUATE THE ADMISSIBILITY OF DEFENDANT'S OUT OF COURT STATEMENTS AS REQUIRED BY N.J.R.E. 104(C).
POINT IV. REVERSAL IS REQUIRED BECAUSE THE STATE PRESENTED INADMISSIBLE LAY OPINION TESTIMONY THAT INCLUDED LAW ENFORCEMENT OFFICERS' OPINIONS REGARDING DEFENDANT'S GUILT AND INTENT.
In State v. Kates, 216 N.J. 393, 395-96 (2014), our Supreme Court
established the analysis required to determine whether a defendant was deprived
of his or her constitutional right to counsel of choice. The Court noted a
defendant's right to counsel of choice was not absolute and could be balanced
against the demands of a court's calendar. Id. at 396. The Court also instructed
A-3235-18T4 12 trial courts to consider the factors outlined in State v. Furguson, 198 N.J. Super.
395, 402 (App. Div. 1985) when assessing a defendant's request for a
continuance to retain counsel. Ibid. Those factors 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 U.S. v. Burton, 584 F.2d 485, 490-91 (1978).]
As the Appellate Division stated in State v. Kates, 426 N.J. Super. 32, 47
(App. Div. 2012), the deprivation of the right to choose counsel only occurs
"when the court mistakenly exercises its discretion and erroneously or arbitrarily
denies a continuance to retain chosen counsel." "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. "
A-3235-18T4 13 Kates, 216 N.J. at 396-97 (citations omitted). Further, "[t]rial judges retain
considerable latitude in balancing the appropriate factors." Id. at 397 (citing
State v. Hayes, 205 N.J. 522, 537-39 (2011)). As a result, trial judges "can
weigh a defendant's request against the need 'to control [the court's] calendar
and the public's interest in the orderly administration of justice.'" Ibid. (citing
Furguson, 198 N.J. Super. at 402).
Defendant contends he requested an adjournment of the trial and time to
hire private counsel on December 4, 2018. He asserts he contacted private
counsel who informed him he could provide representation if the trial was
adjourned.
Defendant recognizes the court engaged in a colloquy with him regarding
the rights and responsibilities he would have if he proceeded pro se. However,
defendant maintains the court decided the application without engaging in the
requisite analysis of the Furguson factors. According to defendant, the court
ignored his previous request to retain private counsel a month before trial. We
are unpersuaded.
Before the long-scheduled trial day, defendant made several requests for
the Public Defender's office to assign him a different public defender. The first
A-3235-18T4 14 time he asked to retain private counsel was on December 4, 2018, the first day
of jury selection.
As described above, the court addressed defendant's request for a different
public defender on November 5, 2018. The court reiterated to defendant that he
was previously informed that he did not have the right to choose a different
assigned counsel. During the hearing, defense counsel noted the Public
Defender's Office made clear defendant's options were to: hire private counsel;
continue with defense counsel; or make an application to proceed pro se. At no
time during this hearing did defendant request the opportunity to retain private
We are satisfied the trial judge did not mistakenly exercise his discretion
in denying defendant's request for an adjournment. In his oral decision, the
judge thoughtfully analyzed the appropriate factors and considered the demands
of his calendar.
In addressing the Furguson factors, the judge found: a lengthy delay was
likely because the court had a busy trial schedule and replacement counsel had
not been retained yet; the court firmly believed the request was purposefully
made to postpone trial; defendant did not ask to retain private counsel until the
first day of trial; and, since replacement counsel had not yet been retained, "other
A-3235-18T4 15 competent counsel [was not] prepared" to begin trial. In addition, the court
noted that changing counsel "would result in a very lengthy adjournment of the
trial because . . . of the trial schedule . . . through . . . 2019, but also because
. . . the new counsel would need . . . time to prepare for trial." We discern no
error in the denial of an adjournment under these circumstances.
Defendant's challenge of several evidential issues also lacks merit. He
asserts first that it was error to permit testimony regarding his actions of leaving
the gas stove on and mixing flammable fluids because it was impermissible prior
bad act evidence. Defendant contends the court failed to conduct the requisite
Cofield1 and N.J.R.E. 404(b) analyses.
Defendant did not request those analyses nor object to the testimony. We
review therefore for plain error, only reversing if the error is "clearly capable of
producing an unjust result." R. 2:10-2.
Rule 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
1 State v. Cofield, 127 N.J. 328 (1992). A-3235-18T4 16 Cofield established a four-pronged test to determine the admissibility of
evidence under the rule.
Defendant was not charged with any crimes relating to the flammable
liquids or gas discharge. The testimony was not presented to show defendant
was predisposed to commit a crime. Instead it was introduced as Pothos narrated
the sequence of events – what led the detectives to defendant's apartment and
what occurred thereafter. Moreover, there was ample evidence to support
defendant's convictions. The references to the gas stove do not constitute plain
error.
During the trial, the State played several statements made by defendant
during the confrontation with police. 2 The statements were recorded on
2 In the video, defendant is heard making the following statements:
[Defendant]: Please don't, man. I'm not fucking playing with you.
....
[Defendant]: . . . You shoot a[t] me, I'm shooting at you.
[Defendant]: I'm not fucking playing with you. I'm not fucking playing with you all.
A-3235-18T4 17 Lakawicz's body microphone. There was no objection to the statements. On
appeal, defendant contends that because the recorded statements were made
without advisement of his Miranda3 rights, the court should have conducted a
N.J.R.E. 104 hearing to assess the voluntariness of the inculpatory statements.
We disagree.
When the detectives first spoke with defendant at his apartment door, he
conceded he was mixing flammable fluids. As discussed above, this was not an
inculpatory statement because defendant was not charged with any offenses
related to that conduct. In addition, that statement and the other recorded
statements were made by defendant during the confrontation with police as he
was pointing a gun and shooting at the officers. As defendant was not yet under
arrest, the requirement to apprise him of his Miranda rights was not triggered.
See Rhode Island v. Innis, 446 U.S. 291, 300-302 (1980) ("We conclude that the
Miranda safeguards come into play whenever a person in custody is subjected
to either express questioning or its functional equivalent."). Therefore, there
was no need for a Rule 104 hearing.
In turning to defendant's final argument, he contends the State elicited lay
opinion testimony from several officers, in violation of N.J.R.E. 701. He refers
3 Miranda v. Arizona, 384 U.S. 436 (1966). A-3235-18T4 18 to the following trial testimony: Pothos's description of defendant being
"bladed" and his explanation of the term; Officer Gabriel Avella's testimony that
defendant pointed his gun at him and wanted to kill him; Pathos's statement that
defendant was "actively resisting" arrest; and Officer Kelsey Ford's detailed
description of what went through her mind after hearing a gunshot, her statement
when shown a photograph that defendant is aiming his weapon at the officers in
the picture photograph, and her testimony that after defendant was restrained,
she had "to get [her] EMT bag to save the person who just tried to murder [her]
Defendant argues the testimony was impermissible because the statements
expressed opinions that defendant was guilty of the charged crimes. He asserts
the officers' testimony was clearly capable of producing an unjust result and
deprived him of his right to a fair trial.
Because defendant only objected to the Avella statement, we review the
others for plain error. We review the trial court's admission of the Avella
statement for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011).
Lay opinion testimony is permitted under Rule 701 if it is "based on the
perception of the witness and . . . will assist the jury in performing its function."
State v. McLean, 205 N.J. 438, 456 (2011). A careful review of the statements
A-3235-18T4 19 reveals they were the respective officer's personal observations and perception.
Each of the officers testified to events during which they were present. The
officer's statements described their perceptions of defendant's actions as he was
running towards them, pointing a gun, and shooting at them. We discern no
error in the testimony.
Affirmed.
A-3235-18T4 20