State v. Miller

New Jersey Law Journal


State v. Miller, A-35 September Term 2011; Supreme Court; opinion by Patterson, J.; dissent by Albin, J.; decided October 2, 2013. On appeal from the Appellate Division, 420 N.J. Super. 75 (App. Div. 2011). [Sat below: Judges Fuentes, Ashrafi and Nugent in the Appellate Division; Judge Delehey in the Law Division.] DDS No. 14-1-1504 [62 pp.]

Defendant Terrence Miller was indicted for, inter alia, possession and distribution of a controlled dangerous substance. He privately retained an attorney. The trial was twice postponed and before the third trial date, he was assigned a public defender. However, his initial public defender was thereafter unable to serve as trial counsel.

On Dec. 6, 2007, a different public defender, an experienced attorney with some experience in criminal cases, was told that he would serve as defendant's trial counsel and that trial was expected to begin on Dec. 10, 2007. Counsel spent 10 to 11 hours preparing for trial over the weekend.

On Dec. 10, counsel met with defendant for the first time at the courthouse. They conferred for approximately 25 minutes after which counsel unsuccessfully attempted to negotiate a plea deal. They met again for a half hour before the judge began the proceedings.

Defense counsel told the court he was prepared to proceed with the trial but noted defendant's concern that he had not had sufficient time to confer with counsel. He asked for an adjournment so that he and defendant could confer and plan the defense. The court denied the request and proceeded with the hearing on his suppression motion, which was denied. Defendant's trial began the next day. He was convicted of two drug charges.

Defendant appealed, claiming he was deprived of his constitutional right to effective assistance of counsel. In a split decision, an Appellate Division panel upheld the conviction, holding that the denial of defendant's application to adjourn the trial date did not warrant reversal in the absence of a finding of ineffective assistance of counsel or a showing of prejudice. The dissent opined that the trial court's decision violated constitutional standards and principles of fundamental fairness.

Defendant appealed as of right.

Held: When a defendant seeking an adjournment asserts an inadequate opportunity to confer with new counsel, the trial court should apply the factors in State v. Hayes, 205 N.J. 522 (2011). A trial court's abuse of discretion in denying an adjournment does not require a reversal absent a showing of prejudice. Applying the Hayes factors here, the judge's denial of an adjournment did not constitute an abuse of discretion in light of the history of the case, defendant's brief meeting with his counsel before the pretrial hearing, and counsel's representation that he was prepared to proceed. It offended neither constitutional norms nor principles of fundamental fairness.

Strickland v. Washington, 466 U.S. 668 (1984), established a two-pronged test to determine if an individual has been denied his right to effective assistance of counsel: a showing of deficient performance by counsel and that the deficient performance prejudiced the defense. The second prong was reiterated in United States v. Cronic, 466 U.S. 648 (1984), which noted that there are circumstances that are so likely to prejudice the accused that the cost of litigating their effect is unjustified. State v. Fritz, 105 N.J. 42 (1987), adopted the Strickland/Cronic standard as the benchmark by which a violation of the right to counsel is measured under the New Jersey Constitution.

The court says it has never presumed prejudice under Cronic in a situation analogous to this case, where the defendant was represented by competent counsel with no conflict of interest.

Thus, says the court, there is no authority for the expansion of the presumption of prejudice beyond the parameters set in Cronic. To secure reversal of his conviction premised on ineffective assistance of counsel, a defendant must satisfy both prongs of the Strickland/Fritz test.

The court says defendant seeks to extend the Cronic presumption of prejudice to a new setting: a trial court's claimed deprivation of a defendant's opportunity to develop a rapport with his counsel.

To this the court responds that assistance of counsel mandates competent and loyal service to the client in a setting that does not preclude the giving of effective aid in the preparation and trial of the case. However, the right to counsel of one's choice does not extend to defendants who require counsel to be appointed for them. Nor does it require an interaction between attorney and client that gives rise to a "rapport."

A motion for an adjournment implicates a trial court's authority to control its own calendar and broad discretion must be granted trial courts on matters of continuances. The court says it has not previously considered the standard that a trial judge should apply when a defendant requests an adjournment so that he can have more time to confer with newly assigned counsel.

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