N.J. SUPERIOR COURT, APPELLATE DIVISION

State v. Vasquez

CRIMINAL LAW

New Jersey Law Journal

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State v. Vasquez, A-4933-10T3; Appellate Division; opinion by Sapp-Peterson, J.A.D.; decided and approved for publication August 28, 2013. Before Judges Axelrad, Sapp-Peterson and Haas. On appeal from the Law Division, Union County, Indictment No. 10-03-0262. DDS No. 14-2-1153 [10 pp.]

Pursuant to plea negotiations, defendant Edixon Vasquez pleaded guilty to aggravated sexual assault, aggravated assault, theft by extortion, and terroristic threats. The state recommended an aggregate 20-year custodial sentence, with an 85 percent period of parole ineligibility under the No Early Release Act.

More than six months later, defendant appeared for sentencing and requested an adjournment to file a motion to withdraw his guilty pleas and obtain new counsel. The court denied the motion, noting that the matter had been adjourned previously.

Thereafter, defense counsel said he believed he was in conflict since defendant did not want him to represent him and would not cooperate with counsel's attempt to review the presentence report with him. Counsel asked to send the matter back to the Public Defender's Office for assignment of a new attorney. The court did not respond to counsel's concerns. After the prosecutor put the state's sentencing position on the record, defendant expressed dissatisfaction with his attorney.

The court at no time addressed defense counsel's concerns about his continued representation of defendant, nor defendant's concern that he was not being represented by counsel. It sentenced defendant in accordance with the plea agreement.

Defendant appeals from the trial court order denying his motion to adjourn his sentencing.

Held: Although the court put on the record strong and sustainable reasons for denying defendant's request for an adjournment, the court mistakenly exercised its discretion in proceeding with sentencing without addressing defense counsel's concerns regarding a conflict in continuing to represent defendant. The sentence is vacated and the matter remanded.

The panel says that a criminal defendant's request to adjourn a sentencing is committed to the sound discretion of the trial court and a denial of a request to adjourn in order to retain new counsel will not be disturbed on appeal unless it appears that the defendant suffered manifest wrong or injury. The record here reflects "manifest wrong."

The panel says the court placed on the record strong and sustainable reasons justifying the denial of defendant's adjournment request: the absence of any competent evidence defendant had retained new counsel, as he initially advised the court; defendant entered his guilty pleas in July 2010 and sentencing did not occur until February 2011; and there had been a previous adjournment. These findings ordinarily would support the denial of an adjournment request to retain new counsel. The problem is what followed.

Defense counsel advised the court that he believed he was in a conflict, because defendant had expressed his desire that counsel no longer represented him and was not cooperating with counsel's attempt to review the presentence report with him. Counsel requested the opportunity to send the matter back to the Public Defender's Office. Defendant said he no longer wanted his current counsel to represent him. The court failed to address this dilemma. More important, the court proceeded with sentencing without establishing that defendant had knowingly, intelligently and voluntarily waived his right to counsel and had elected to proceed with sentencing, pro se. Also evident is that defense counsel, after expressing his perceived conflict, did not participate in the sentencing.

The critical error here is the court's failure to address defense counsel's expressed conflict issue. It should have made findings and then, based on those findings, considered options, including determining whether a genuine conflict of interest existed, and, if so, granting an adjournment, or, if it did not, ordering counsel to proceed to vigorously represent defendant in seeking withdrawal of the guilty pleas or advocating for the best possible sentencing outcome.

The panel concludes that in the absence of findings on the continued representation by defense counsel, and, if necessary, consideration of other options, the sentence imposed must be vacated and the matter remanded for further proceedings, to include permitting defendant to file a motion to withdraw his guilty pleas.

For appellant — Joseph E. Krakora, Public Defender (Daniel V. Gautieri, Assistant Deputy Public Defender, on the brief). For respondent — Theodore J. Romankow, Union County Prosecutor (Sara B. Liebman, Assistant Prosecutor, on the brief).

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