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.

However, State v. Hayes, 205 N.J. 522 (2011), considered the intersection of the right to the assistance of counsel and the denial of a defendant’s motion for an adjournment in the setting of a motion to withdraw a guilty plea. It held that when an appellate court reviews the determination of a defendant’s motion for an adjournment, two conditions must exist to warrant reversal of the conviction: the judicial action must have been clearly unreasonable and the ruling must have prejudiced the complaining party.

Hayes adopted a case-specific standard and enumerated the relevant factors, including the length of the requested delay, whether other continuances have been granted, whether the requested delay is for legitimate reasons, and whether defendant contributed to the circumstances that give rise to the request for a continuance. It noted the need to balance the court’s right to control its calendar and the public’s interest in the orderly administration of justice with the defendant’s constitutional right to obtain counsel of his choice.

Applying the Hayes analytical framework , the court concludes that its factors do not decisively favor either the grant or the denial of the requested adjournment. Either decision arguably would have been a proper exercise of the trial court’s discretion. Further, there is no showing of prejudice. Thus, the denial was not an abuse of discretion under Hayes and did not violate defendant’s right to effective representation under Strickland, Cronic and Fritz.

The court does add that the trial judge would have better served the competing interests at stake with a minimal adjustment to the court schedule.

Finally, the court says the denial of an adjournment did not contravene principles of fundamental fairness as there was no oppression, harassment, or egregious deprivation in this case.

Justice Albin, in dissent, says defendant was denied the right to the effective assistance of counsel and the right to a fair trial, rights guaranteed by both the state and federal constitutions.

Chief Justice Rabner and Justices LaVecchia and Hoens join in Justice Patterson‘s opinion. Justice Albin dissents.

For appellant — Amira R. Scurato, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — Dorothy A. Hersh, Assistant Prosecutor (Joseph L. Bocchini Jr., Mercer County Prosecutor). For amici curiae: American Civil Liberties Union of New Jersey Foundation — Alexander R. Shalom (Edward L. Barocas, Legal Director); Attorney General — Carol M. Henderson, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General); Criminal Defense Lawyers of New Jersey — Peter J. Gallagher (Porzio, Bromberg & Newman).