State v. Noel

900 A.2d 845, 386 N.J. Super. 292, 2005 N.J. Super. LEXIS 406
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 15, 2005
StatusPublished
Cited by1 cases

This text of 900 A.2d 845 (State v. Noel) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Noel, 900 A.2d 845, 386 N.J. Super. 292, 2005 N.J. Super. LEXIS 406 (N.J. Ct. App. 2005).

Opinion

DEVESA, P.J.Cr.

In this matter the Public Defender seeks to reassign the representation of the defendant to a private pool attorney without leave of the court and over the objection of the defendant.

Procedural History:

On July 20, 2004, the Grand Jury returned an indictment charging defendant with aggravated assault upon a corrections officer. After being assigned by the Public Defender, an Assistant Deputy Public Defender entered an appearance on behalf of the defendant at the arraignment status conference held on September 17, 2004. Thereafter, the Assistant Deputy Public Defender sought extensive discovery, filed several motions and diligently represented the defendant during more than ten pretrial hearings and status conferences. On May 9, 2005, the matter was scheduled for a pretrial conference to confirm the completion of discovery and pretrial motions and to fix the trial date which had been tentatively scheduled for June 20, 2005. At the beginning of the conference, the Assistant Deputy Public Defender stated to the court that she was “pooling this case out” to a private attorney “because of a conflict.” This representation was made without any prior notice to the court, without attorney certifications, and without the Defendant’s consent. In response to the court’s inquiries, the Assistant Deputy Public Defender stated that she could not disclose the reasons for the abrupt and unexplained reassignment since they involved privileged communications. She further stated that the private pool attorney was not present because he did not yet know that he had been assigned to represent the defendant.

Unable to assess the impact of these developments on the interests of the defendant, the court and the State, the court refused to approve a reassignment without further information [295]*295and ordered the Assistant Deputy Public Defender to comply with R. 1:11-2 for the substitution of counsel, or in the alternative, to file a legal memorandum citing authority for why the reassignment to a private pool attorney could be made without the consent of the defendant and the Prosecutor, or without court approval.

Despite the court’s order, on May 12, 2005, the court received a letter from a secretary in the New Brunswick Office of the Public Defender stating that the matter had been reassigned to a private pool attorney on May 9, 2005. The Public Defender then submitted letter briefs asserting that R. 1:11-2 did not apply to Public Defender reassignments to private attorneys and that those assignments may be made without court inquiry or approval. The Prosecutor took no position on this issue. On July 15, 2005, the court conducted a hearing to resolve the representation of defendant and related issues.

The court finds that the withdrawal of the Assistant Deputy Public Defender and the assignment of a private attorney to represent the defendant without his consent, without notice to the Prosecutor, and without court approval constituted a violation of R. 1:11-2, and was contrary to established law. However, after hearing on the record from the Public Defender, the defendant, the private pool attorney, and the Prosecutor, the court is satisfied that because of irreconcilable differences between the defendant and the Assistant Deputy Public Defender, there is good cause for the reassignment over the defendant’s objection. Accordingly, the court does grant approval for the reassignment. Since this matter raises important issues relating to the rights of the defendant and the authority of the court and the Public Defender, the court deems it necessary to fully set forth the reasons for its decision.

Applicable Law and Analysis:

In letter briefs, the Office of the Public Defender asserts that:

In accordance with N.J.S.A. 2A:158(a)(8) the Public Defender has the responsibility to assign cases in a manner to avoid conflict and the appearance of impropriety, this includes cases which are assigned to pool attorneys. The statute clearly states [296]*296that the decision to whom to assign cases to is held by the Public Defender and there are no provisions for this to be questioned by the court. (Emphasis added).

Furthermore, The Office of the Public Defender contends that since the Public Defender remains the “attorney of record” in every case where the Public Defender reassigns a pool attorney to represent a defendant, there is no substitution or withdrawal that triggers the applicability of R. 1:11-2. In effect, the Public Defender argues that for purposes of the rule, the hundreds of Assistant Deputy Public Defenders and the hundreds of private attorneys and firms that accept Public Defender assignments constitute “one firm.” Therefore the Public Defender is free to assign and reassign attorneys to represent any indigent defendant without regard to the consent of the client, the prosecutor or the court.

The authority cited by the Public Defender for this proposition is that: (1.) N.J.S.A. 2A:158(a)(8) vests the Public Defender with the exclusive authority to assign attorneys to indigent defendants and The Public Defender Act, N.J.S.A. 2A:158A, contains no language limiting the Public Defender’s discretion or providing for court approval; and (2.) Since N.J.S.A. 2A:158(a)(10) states that the Public Defender remains responsible for the supervision of cases after reassignment to private pool attorneys, and the Court Guidelines for Captioning Appeals state that the Public Defender remains the attorney of record in designated counsel cases, the “same firm” continues to represent the defendant after reassignment. Therefore Í2.1:11-2 does not apply.

The court finds these arguments unpersuasive. When an Assistant Deputy Defender, after entering an appearance at the arraignment status conference pursuant to R. 3:8-3 and R. 3:9-1 (c) withdraws from the representation of a defendant and seeks the reassignment of the matter to a private pool attorney because of an alleged conflict of interest, the rights of the defendant (and possibly co-defendants), and the interests of the Prosecutor and the public may be implicated. To allow such reassignments to take place without regard to R. 1:11-2 or without court approval [297]*297undermines the court’s authority to protect these rights and to protect the integrity of the trial process. A fair reading of The Public Defender Act, the Court Rules and related case law makes it clear that the Public Defender does not have the unbridled discretion to reassign cases to private pool attorneys because of alleged conflicts of interest without complying with R. 1:11-2 or without seeking court approval.

Article VI, § 2, If 3 of the New Jersey Constitution of 1947 “charges the Supreme Court with the responsibility for making rules governing the practice and procedure in and the administration of all of the courts in the State” so as to protect and preserve individuals’ rights and seek fairness. Capital Bonding Corp. v. New Jersey Supreme Court, 127 F.Supp.2d 582, 586 n. 3 (D.N.J. 2001).

There is no doubt that the Court Rules and the Rules of Professional Conduct generally apply to the Public Defender. See R. 1:13-2, 2:7-2, 3:4-2, 3:8-2, 3:8-3, 3:22-6. In State v. Bell, 90 N.J. 163, 170, 447 A.2d 525

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Cite This Page — Counsel Stack

Bluebook (online)
900 A.2d 845, 386 N.J. Super. 292, 2005 N.J. Super. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-noel-njsuperctappdiv-2005.