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Supreme Court of New Jersey.

STATE of New Jersey, Plaintiff–Appellant, v. Raymond D. KATES, Defendant–Respondent.

    Decided: January 14, 2014

Teresa A. Blair, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney). Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

The Appellate Division reversed defendant Raymond Kates' conviction for second-degree eluding, N.J.S.A. 2C:29–2(b), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29–2(a)(2). We affirm that judgment largely for the reasons stated in Judge Ostrer's opinion in State v. Kates, 426 N.J.Super. 32 (App .Div.2012).

On the morning trial was scheduled to start, defendant first learned that Assistant Deputy Public Defender Jeffrey G. Klavens would likely be deployed overseas during the trial. Id. at 39. It appears that Klavens was to be the lead trial counsel; Assistant Deputy Public Defender Dionne Stanfield was to be second-chair. Ibid.

Defendant objected through Klavens: “he's not comfortable ․ changing attorneys midstream or having the jury see me for part of the time and then seeing me leave for the rest of the time. He feels it's not fair to him. He [ ] has concerns that the jury would be confused.” Defendant also expressed concern because Stanfield was “newer to the case.” As a result, Klavens represented to the trial court that defendant was “working now” and “requesting a postponement so he can hire his own attorney.” In response to counsel's question—“Is that right?”—defendant agreed with the request for an adjournment.

Without any further discussion or inquiry of defendant, the trial court stated, “I understand that request. I am denying that request. We are going to proceed with the trial today.”

The Appellate Division concluded that “the trial court did not adequately elicit facts and apply the relevant factors to reasonably balance defendant's desire to retain counsel of his choice against the court's need to proceed with the scheduled trial.” Id. at 51. The panel therefore ordered a new trial.

The appellate court's reasoning is ably set forth in Judge Ostrer's opinion. In essence, the opinion explains that (i) the Sixth Amendment “entitles ‘a defendant who does not require appointed counsel to choose who will represent him,’ “ id. at 43 (quoting United States v. Gonzalez–Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L. Ed.2d 409, 417 (2006))1 ; (ii) deprivation of the right to counsel of choice is a “structural error,” so defendants who demonstrate that their right has been violated do not have to show prejudice, id. at 44 (citing Gonzalez–Lopez, supra, 548 U.S. at 150, 126 S.Ct. at 2564, 165 L. Ed.2d at 420); (iii) a defendant's right to counsel of choice “is not absolute” and may be balanced against the demands of the court's calendar, among other issues, id. at 45 (citations omitted); (iv) to assess a defendant's request for a continuance to retain counsel of choice, trial courts should consider various factors outlined in State v. Furguson, 198 N.J.Super. 395, 402 (App.Div.) (adopting analysis of United States v. Burton, 584 F.2d 485, 490–91 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L. Ed.2d 34 (1979)), certif. denied, 101 N.J. 266 (1985), which guide the courts' discretion, Kates, supra, 426 N.J.Super. at 46; (v) 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, supra, 198 N.J.Super. at 402 (quoting Burton, supra, 584 F.2d at 490–91); see also State v. Hayes, 205 N.J. 522, 538 (2011) (noting that balancing of factors “is an intensely fact-sensitive inquiry”).];

(vi) the availability of other competent counsel, while relevant, “is no substitute by itself for the constitutional right to choose counsel,” Kates, supra, 426 N.J.Super. at 46; and, (vii) a deprivation of the right only occurs “when the court mistakenly exercises its discretion and erroneously or arbitrarily denies a continuance to retain chosen counsel,” id. at 47.

We write to emphasize certain points that the Appellate Division noted. 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. See State v. McLaughlin, 310 N.J.Super. 242, 260 (App.Div.), certif. denied, 156 N.J. 381 (1998); Furguson, supra, 198 N.J.Super. at 405–06. Such an approach does not invoke structural error.

Trial judges retain considerable latitude in balancing the appropriate factors. Hayes, supra, 205 N.J. at 537–39. They 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.” Furguson, supra, 198 N.J.Super. at 402; see also Burton, supra, 584 F.2d at 490 (noting that trial court “is free to deny a continuance to obtain additional counsel if, upon evaluation of the totality of the circumstances, it reasonably concludes that the delay would be unreasonable in the context of the particular case”).

Thus, we underscore that only if a trial court summarily denies an adjournment to retain private counsel without considering the relevant factors, or abuses its discretion in the way it analyzes those factors, can a deprivation of the right to choice of counsel be found. Structural error is not triggered otherwise.

In this case, there may have been reason to deny defendant's request for a continuance based on the Burton/Furguson factors. But no analysis was conducted. We do not suggest that a lengthy factual inquiry is required, see Kates, supra, 426 N.J.Super. at 53, but the summary denial of defendant's request, with no consideration of the governing standard, amounts to error and requires a new trial.

We therefore affirm the judgment of the Appellate Division.


1.  As the court noted, “an indigent defendant who is represented by appointed counsel does not enjoy a right to choose counsel.” Kates, supra, 426 N.J.Super. at 43 (citing State v. Williams, 404 N.J.Super. 147, 170 (App.Div.2008), certif. denied, 201 N.J. 240 (2010)). The Public Defender may substitute attorneys within the office. See, e.g., Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L. Ed.2d 610 (1983).


Chief Justice RABNER and Justices LaVECCHIA, ALBIN, and PATTERSON; and Judges RODRÍGUEZ and CUFF (both temporarily assigned) join in this PER CURIAM opinion. For affirmance—Chief Justice RABNER and Justices LaVECCHIA, ALBIN, and PATTERSON; and Judges RODRÍGUEZ and CUFF(t/a)—6.

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