STATE OF NEW JERSEY VS. SERENITY A. DAVIS (2018-030, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 21, 2020
• Docket: A-2784-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2784-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SERENITY A. DAVIS,

Defendant-Appellant. ___________________________

Submitted June 17, 2020 – Decided July 21, 2020

Before Judges Koblitz and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2018-030.

Michael C. Meribe, PC, attorneys for appellant (Jeff Edward Thakker, of counsel; Chuma Mike Meribe, on the briefs).

Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Serenity A. Davis appeals from her January 22, 2019

disorderly persons conviction after a trial de novo on the record in the Superior

Court. She was convicted of simple assault, N.J.S.A. 2C:12-1(a)(1) arising

from an April 2017 apartment building dispute after a trial de novo on the

record. She received a conditional dismissal, N.J.S.A. 2C:43-13.1, was placed

on probation for one year and required to pay various financial penalties.

Defendant was represented at trial before the Essex County Special Remand

Court1 by a law student under the supervision of the Office of the Public

Defender (OPD). See R. 1:21-3(b). Because that law student also, at the

municipal court's direction, represented defendant's mother, who was

defendant's co-defendant at the joint trial, we now reverse. A lawyer, or law

student acting under the direction of a lawyer, may not represent co-defendants

at trial without a motion in the presence of both individuals. Such a clear

conflict represents a structural defect in the trial mandating reversal.

1 The Special Remand Court was established through cooperation of the Essex County criminal division, the municipal division and the Essex County municipal courts. It hears cases that involve criminal complaints that have been downgraded to disorderly persons offenses, over which the county prosecutor's office wishes to retain jurisdiction rather than return the cases to the originating municipal court. The presiding judge is a municipal court judge.

A-2784-18T3 2 Defendant and her mother were involved in a dispute with the residents

of the first-floor apartment while trying to gain access to the second-floor

apartment in a building with three apartments. We need not review the facts in

any detail. They were initially charged with indictable crimes that were

downgraded and sent back to the Special Remand Court where they were

represented by the same private lawyer. The lawyer then stated on the record

that he could not represent both defendants, choosing to continue representing

defendant's mother alone. The supervised law student was appointed to

represent defendant. When the mother's lawyer did not appear in court, the

municipal court judge had the law student represent defendant's mother as well

as defendant. Both were charged in the same incident with the same charges,

which involved assault, criminal mischief and defiant trespass. Defendant's

mother was acquitted of all charges while defendant was convicted of simple

assault only.

Defendant raises the following issues on appeal:

POINT I: THE LAW STUDENT'S JOINT REPRESENTATION OF MOTHER AND DAUGHTER CO-DEFENDANTS WAS PER SE INEFFECTIVE ASSISTANCE. (Not raised below.)

POINT II: THE LAW DIVISIONS FINDINGS OF SERENITY A. DAVIS'[] PURPOSE, AND THE CONTENTIONS ABOUT SELF-DEFENSE, WERE

A-2784-18T3 3 ERRONEOUS AS A MATTER OF LAW; SHE WAS ENTITLED TO AN ACQUITAL AND THIS COURT SHOULD SO RULE.

POINT III: THE NEWARK MUNICIPAL COURT, NOT THE ESSEX SPECIAL REMAND COURT, WOULD HAVE HAD JURISDICTION OVER THE DOWNGRADED CHARGES; THE LAW DIVISION'S DECISION BASED ON A RECORD OF AN ALLEGED TRIBUNAL WHICH LACKED JURISDICTION, IS A NULLITY. (Not raised below.)

We reverse based on the first point raised by defendant, which she raised

for the first time on appeal. We review this argument for plain error. Under

this standard, reversal of defendant's conviction is required if there was error

"clearly capable of producing an unjust result." R. 2:10-2. Rule 7:7-10, which

applies to the municipal court, states:

No attorney or law firm shall enter an appearance for or represent more than one defendant in a multi-defendant trial or enter a plea for any defendant without first securing the court's permission by motion made in the presence of the defendants who seek joint representation. The motion shall be made as early as practicable in the proceedings in order to avoid delay of the trial. For good cause shown, the court may allow the motion to be brought at any time.

Defendants are entitled to the effective assistance of counsel, which

requires "undivided loyalty and representation that is 'untrammeled and

A-2784-18T3 4 unimpaired' by conflicting interests." State v. Norman, 151 N.J. 5, 23 (1997)

(quoting State v. Bellucci, 81 N.J. 531, 538 (1980)).

Defendants did not privately retain the law student, nor agree on the

record to be jointly represented by him, nor were they informed on the record

of the possible pitfalls of sharing a lawyer. 2 Although they seemed to present

a cohesive defense, both denying all charges, we have no way of knowing

whether defendant's case would have been better presented by her own

individual lawyer, unimpeded by concerns for her co-defendant. One lawyer

should not be appointed by the court to represent co-defendants. Because

clients do not select who their appointed counsel is, they cannot truly be said

to have waived any potential conflict. The defendants here were not given a

choice. This enforced shared counsel is a structural error, requiring reversal

regardless of the fact that no objection was raised prior to appeal and no

specific harm was demonstrated. See State v. Camacho, 218 N.J. 533, 549

(2014) (discussing how deprivation of counsel is a structural error).

2 We note that advice from the mentor lawyer from the OPD, expressed in coarse language, was captured on the record and reflected in the transcript we reviewed. We suggest the OPD ensure that this inadvertent recording be avoided in the future.

A-2784-18T3 5 Reversed and remanded for a new trial. We do not retain jurisdiction.

A-2784-18T3 6