NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5722-17






                   Submitted January 5, 2021 – Decided March 5, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 15-12-0194.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Jill J. Pomeroy, Designated Counsel, on the

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Lauren Bonfiglio, Deputy Attorney
                   General, of counsel and on the brief).

      Three times, three different judges granted defendant's request to

represent himself at his criminal trial. After questioning defendant, each judge

found that he understood the risks he was taking and was competent to represent

himself.   At trial, however, defendant requested adjournments and the

appointment of counsel, contending that he was suffering from a mental illness.

The trial judge denied those requests, finding that defendant was competent.

      The jury convicted defendant of five second-degree crimes: theft by

deception, N.J.S.A. 2C:20-4 and 2C:2-6; misapplication of entrusted property,

N.J.S.A. 2C:21-15 and 2C:2-6(a); securities fraud, N.J.S.A. 49:3-52 and 2C:2-

6; misleading securities filings, N.J.S.A. 49:3-54 and 2C:2-6; and money

laundering, N.J.S.A. 2C:21-25(b)(1) and 2C:2-6. Defendant was sentenced to

an aggregate prison term of ten years.

      Defendant appeals and argues that the trial court erred in denying his

request for an adjournment so that he could undergo a psychological evaluation

and obtain counsel. He contends that his convictions should be vacated. We

reject his argument because the record reflects that the trial court found that

defendant was competent to continue to represent himself and his requests for

adjournments were a delaying tactic.


      Defendant was a stockbroker who established his own trading company.

In October 2013, he was indicted for theft and misapplication of entrusted

property. The State alleged that defendant had taken hundreds of thousands of

dollars from investors and used substantial portions of those funds for his

personal expenses. The State also asserted that defendant had misrepresented

who he worked for and had lost other funds in poor investments. Finally, the

State contended that defendant lied to the New Jersey Bureau of Securities when

it investigated the losses.

      At the beginning of the litigation, defendant was represented by counsel.

He first hired counsel, but after that counsel withdrew, he was represented for

several months by a public defender. In 2014, however, the trial court found

that defendant was not indigent. Accordingly, the court allowed the public

defender's office to withdraw as defendant's counsel and advised defendant to

hire new counsel.

      After substantial delays, defendant retained new counsel, but that counsel

was later allowed to withdraw because defendant would not communicate with

them. Following further delays, defendant requested to represent himself.

      On November 17, 2015, a judge conducted a hearing on defendant's

request. The judge extensively questioned defendant, who testified that he had

no learning disabilities or psychological issues. Defendant expressed ignorance

about the law and trial procedures but told the court that he would do "whatever

it takes" to prepare for trial. Defendant also explained that he had represented

himself in a civil action brought by two of the victims of his alleged criminal

theft and misapplication of entrusted funds. He elaborated that in the civil action

he had given opening and closing statements, cross-examined witnesses,

testified and presented evidence. The judge told defendant that he believed

defendant was making a mistake, given his lack of knowledge, "minimal

involvement" in his civil case, and lack of preparation. After the judge warned

defendant of the risks of self-representation, defendant stated that he understood

those risks and nevertheless wanted to represent himself.            Accordingly,

consistent with defendant's constitutional rights, the judge granted defendant's

application and appointed stand-by counsel.

      In December 2015, a grand jury issued a superseding indictment charging

defendant with theft by deception, misapplication of entrusted property,

securities fraud, misleading securities filings, and money laundering. Defendant

then applied for and was assigned counsel through the public defender's office.

Several months later, in March 2016, defendant sent a letter to the court advising

that he did not want to be represented by his assigned counsel and he again

wanted to represent himself.

      On April 4, 2016, the assignment judge conducted a hearing on

defendant's request. The assignment judge extensively questioned defendant

and defendant testified he understood the charges against him, understood the

potential sentences and penalties he faced if convicted, understood what he

needed to do to represent himself, and repeatedly stated that he wanted to

represent himself. Defendant also testified that he was mentally sound and that

he never had any substance abuse treatment or psychiatric problems. Defendant

was warned that he would be held to the same standards as an attorney if he

represented himself, and defendant said he understood that responsibility.

Based on defendant's testimony, the assignment judge found that defendant was

voluntarily and knowingly waiving his right to counsel and granted defendant's

request to represent himself.      To further protect defendant's rights, the

assignment judge appointed stand-by counsel to assist defendant.

      On June 20, 2017, defendant confirmed with a third judge, who had been

assigned to try the case, that he wanted to continue to represent himself. During

those proceedings, defendant reviewed but rejected a plea offer from the State.

      The trial began on April 9, 2018 with the selection of a jury. On that date,

the judge again confirmed with defendant he was representing himself and

reminded defendant that he had stand-by counsel who would be present during

the trial and was available to defendant if he had any questions or needed


      On the second day of trial, defendant asked for an adjournment and a

psychological evaluation, contending that he did not comprehend what was

happening at trial. He told the judge that he was "not saying [he was] insane,"

but did not understand all the procedures and did not feel "capable of making a

decision." The judge rejected defendant's request for an adjournment and a

psychological evaluation, finding that defendant understood what was

happening at the trial, understood all the issues in the case, and had consistently

demonstrated the ability to "cogently and coherently" speak and represent

himself. The judge also found that defendant was "panicking" because the long-

delayed trial had finally started. Finally, the judge iterated that defendant had

stand-by counsel to assist him and to explain procedures.

      During the next four days of the trial, defendant repeatedly requested

adjournments, a psychological evaluation, and time to retain counsel. The judge

denied all those requests, finding that defendant was "100[%] mentally

competent." The judge also found that defendant had never shown any signs of

not understanding what was taking place in the criminal proceedings and that he

had previously been given numerous opportunities to retain counsel but had

repeatedly requested to represent himself. In addition, the judge found that

defendant's requests were disingenuous and designed to delay and ultimately

prevent the trial from ever concluding.

      On April 24, 2018, the sixth day of trial, defendant sent a text message to

the prosecutor, stating that he had voluntarily checked himself into a medical

center's psychiatric unit. The next day, the judge called the medical center and

was informed that defendant was provisionally diagnosed with major depressive

disorder.   The trial judge revoked defendant's bail, ordered that he be

psychiatrically evaluated, and temporarily adjourned the trial until the

evaluation was completed.

      A court-appointed psychologist examined defendant on May 3, 2018 and

found him to be competent. The psychologist informed the judge of his findings

and prepared a report explaining that he had examined defendant in person and

had spoken with the doctors who treated defendant at the psychiatric unit. In

his report, the psychologist described defendant as alert, with his memory intact,

and his thought process was logical and coherent during the examination. The

psychologist then opined that defendant "possesse[d] the requisite factual and

procedural understanding of the court process" and evidenced "an ability to

effectively communicate with counsel." The psychologist also opined that

defendant was "competent to proceed with trial[.]"

      On May 4, 2018, the trial judge denied defendant's motion for a mistrial,

rejecting defendant's contention that he had mental disabilities that prevented

him from representing himself. The judge stated that he had spoken with the

psychologist who had evaluated defendant and the psychologist had opined that

defendant was competent. The judge then recounted defendant's efforts to avoid

the trial and found that defendant was feigning mental issues.1

      The trial continued for several more days and concluded on May 8, 2018.

During that time, defendant initially indicated that he would be testifying, but

later advised the judge that he had not been able to prepare, even though the

judge had given him the weekend to make such preparations. Ultimately,

defendant did not testify, nor did he give a closing statement. The jury convicted

defendant on all charges.

 Although the psychologist's report is dated May 4, 2018, it does not appear that
the judge received the written report until sometime after it was prepared.
Instead, the judge relied on an oral report, which the psychologist apparently
gave directly to the judge.
      The psychologist conducted a second evaluation of defendant and

prepared a report dated June 7, 2018 with his findings. Defendant was found to

be alert, with "[n]o bizarre or delusional ideation[.]"     The psychologist

concurred with the diagnosis of bipolar disorder and found that defendant had

"demonstrated significant improvement over [the] past month." The doctor then

found that defendant's prognosis was good.

      Following that second evaluation, defendant was sentenced to an

aggregate prison term of ten years.     On four counts, he was sentenced to

concurrent terms of five years in prison. On the money laundering conviction,

he was sentenced to five years in prison, but that term was run consecutive to

the prison sentence on one of the other counts.


      Defendant appeals and makes one argument:


      Criminal defendants have a constitutional right to counsel. U.S. Const.

amend. VI; N.J. Const. art. I, ¶ 10. Defendants also have a federal and state

constitutional right to waive counsel and represent themselves.     Faretta v.


422 U.S. 806

, 813-14 (1975); State v. King, 

210 N.J. 2

, 16 (2012);

State v. McNeil, 

405 N.J. Super. 39

, 51 (App. Div. 2009). "[W]aiver of the right

to be represented by counsel must be done knowingly and intelligently, after the

disadvantages and dangers of self-representation are carefully examined."

McNeil, 405 N.J. Super. at 51

(first citing State v. Reddish, 

181 N.J. 553

, 592-

95 (2004); and then citing State v. Crisafi, 

128 N.J. 499

, 510-12 (1992)).

Nevertheless, the "right to self-representation is not absolute." 

Reddish, 181 N.J. at 587

. Depending on the circumstances, a defendant may "be required to

cede control of his defense to protect the integrity of the State's interest in fair

trials and permit courts to ensure that their judgments meet the high level of

reliability demanded by the Constitution."

Ibid. A defendant with

a mental illness can represent himself so long as he is

competent to stand trial. Indiana v. Edwards, 

554 U.S. 164

, 177-78 (2008);

McNeil, 405 N.J. Super. at 51

-52. In Edwards, the Court held that the federal

"Constitution permits States to insist upon representation by counsel for those

competent enough to stand trial under [the federal standard] but who still suffer

from severe mental illness to the point where they are not competent to conduct

trial proceedings by 

themselves.” 554 U.S. at 178

. "Edwards does not prevent

a State from permitting a defendant with a mental illness from representing

himself if competent to stand trial; rather, it held that the Sixth and Fourteenth

Amendments do not require it." 

McNeil, 405 N.J. Super. at 52


Edwards, 554 U.S. at 171-72

). Accordingly, the Court in Edwards recognized that a

defendant may be competent to stand trial if represented by counsel but

nevertheless may not have the "ability to play the significantly expanded role

required for 

self-representation[.]” 554 U.S. at 176

. The Court in Edwards

concluded that "the Constitution permits judges to take realistic account of the

particular defendant's mental capacities by asking whether a defendant who

seeks to conduct his own defense at trial is mentally competent to do so."

Id. at 177-78.

      We accord substantial deference to a trial court's decisions concerning

competence. State v. Purnell, 

394 N.J. Super. 28

, 50 (App. Div. 2007); State v.


369 N.J. Super. 532

, 548 (App. Div. 2004). A trial court is required to

hold a competency hearing only "[i]f there exists a 'bona fide doubt' regarding a

defendant's competency to stand trial[.]" State v. Lambert, 

275 N.J. Super. 125


128 (App. Div. 1994) (citations omitted); see also 

M.J.K., 369 N.J. Super. at 547

. A "bona fide doubt" requires evidence of incompetency. State v. Spivey,

65 N.J. 21

, 36 (1974) ("[A]bsent any indication of incapacity . . . [a] court is not

bound to interrupt a trial. 'Mere suggestion' of incapacity is not sufficient.").

Additionally, both the United States Supreme Court and New Jersey courts have

recognized that a defendant's demeanor, irrational behavior, and "any prior

medical opinion on competence to stand trial are all relevant in determining

whether further inquiry is required[.]" Drope v. Missouri, 

420 U.S. 162

, 180

(1975); accord 

Lambert, 275 N.J. Super. at 129


      The issue presented in this case is different from the question considered

in Edwards and McNeil. After having been granted the right to represent

himself, defendant sought to withdraw his waiver during trial and have counsel

assume his representation.     Defendant does not dispute that he initially

knowingly and voluntarily waived his right to counsel and was allowed to

represent himself. Instead, he argues that when the trial began, he should have

been allowed to change his position because he was no longer competent to

represent himself. In making that argument, defendant asserts that the standard

for evaluating competence to stand trial should be different from the standard

for evaluating whether a defendant is competent to represent himself at trial. He

also argues that the trial judge erred by using the former standard in rejecting

defendant's request for an adjournment to retain counsel.

      We agree that the standard for evaluating competency to stand trial is

different than the standard for evaluating whether a defendant is competent to

represent himself at trial. The standard for determining competency to stand

trial is set forth in N.J.S.A. 2C:4-4(b).2 While New Jersey has not yet delineated

    That statute provides:

              A person shall be considered mentally competent to
              stand trial on criminal charges if the proofs shall
              (1) That the defendant has the mental capacity to
              appreciate his presence in relation to time, place and
              things; and
              (2) That his elementary mental processes are such that
              he comprehends:
              (a) That he is in a court of justice charged with a
              criminal offense;
              (b) That there is a judge on the bench;
              (c) That there is a prosecutor present who will try to
              convict him of a criminal charge;
              (d) That he has a lawyer who will undertake to defend
              him against that charge;
              (e) That he will be expected to tell to the best of his
              mental ability the facts surrounding him at the time and
              place where the alleged violation was committed if he
              chooses to testify and understands the right not to
              (f) That there is or may be a jury present to pass upon
              evidence adduced as to guilt or innocence of such
              charge or, that if he should choose to enter into plea
              negotiations or to plead guilty, that he comprehend the
              consequences of a guilty plea and that he be able to
              knowingly, intelligently, and voluntarily waive those
              rights which are waived upon such entry of a guilty
              plea; and
              (g) That he has the ability to participate in an adequate
              presentation of his defense.

the standard for determining a defendant's competency to represent himself, we

accept that that standard should consider information relevant to whether any

established mental disability or illness could impair defendant's ability to

represent himself at trial. That standard should also allow the trial court to

consider whether a defendant was feigning a mental illness to delay the trial or

gain some procedural advantage. See State v. Connor, 

973 A.2d 627

, 656-57

(Conn. 2009) (where the Connecticut Supreme Court adopted such a standard).

      We disagree that the trial judge here used the wrong standard.

Significantly, there was no evidence that defendant was incompetent to stand

trial. During the five years of pretrial proceedings defendant's competence to

stand trial was never raised. To the contrary, when defendant sought to represent

himself, he testified that he had no mental illnesses and he had never experienced

any psychological problems.

      Accordingly, when defendant first asked for a psychological evaluation

on the second day of trial, it was defendant himself who was contending for the

first time that he was not competent to represent himself. More significantly,

when defendant was evaluated, he was found to be competent.

            [N.J.S.A. 2C:4-4(b).]
      Defendant argues that the psychologist and judge both focused on and

found only that defendant was competent to stand trial. Defendant therefore

argues that neither the psychologist nor the judge properly considered whether

defendant was competent to represent himself at trial. The record does not

support that contention.      While the psychologist and judge referenced

defendant's competence to stand trial, they both understood that the issue was

whether defendant was competent to continue to represent himself. The judge

in particular understood that issue and repeatedly evaluated defendant's ability

to understand the legal issues and procedures and his ability to represent himself.

      The record does not contain any evidence that defendant ever became

incompetent to either stand trial or represent himself. The only evidence of a

mental issue was defendant's diagnosis with severe depression during the trial.

The court-appointed psychologist concluded that that depression did not

interfere with defendant's competency.       Defendant has not submitted any

evidence, including a rebuttal expert report, stating that his depression caused

him to be incompetent in any way.

      Accordingly, we reject defendant's argument that this matter should be

remanded for a more precise and detailed hearing on his competency to represent

himself at trial. As already noted, the trial judge adequately considered that

issue. Just as importantly, defendant has presented no evidence that he had a

mental health issue that interfered with his ability to represent himself.

      We also reject defendant's argument that the trial judge did not have an

appropriate record to make his findings concerning competency. Defendant

correctly points out that while a psychologist ultimately prepared a report, that

report was not submitted when the judge made his ruling on May 4, 2018, nor

did the psychologist testify. Instead, the judge relied on a conversation that he

had with the psychologist. While those procedures were not ideal, we discern

no basis for reversing the jury's verdict based on those procedures.

      As already pointed out, defendant displayed no behaviors that raised a

question about his competency. Instead, defendant asked for an adjournment

for an evaluation and when he was not granted that, he checked himself into a

psychiatric unit. All that took place in the middle of trial, where the court had

to balance the rights of defendant against the interests of the jury and the State.

After a careful review of the record, we discern no procedural error that warrants

a reversal.

      We also reject defendant's argument that his statements and behavior at

trial gave the trial judge a reasonable basis to question defendant's competence.

The trial judge made express findings that defendant was cogent and coherent

both at pretrial proceedings and trial. With the benefit of having defendant in

front of him, the trial judge found that defendant's real purpose was to feign a

mental illness in an effort to delay and ultimately prevent the trial from ever

concluding. The trial judge's findings are supported by adequate evidence in the

record and, just as significantly, there is no evidence that would cause us to

reject the trial judge's factual findings.

      Finally, we reject defendant's contention that the trial judge should have

directed stand-by counsel to assume representation of defendant. Defendant did

not ask for that relief at trial. Instead, he had previously stated that he did not

want stand-by counsel as his trial counsel and he was requesting an open-ended

adjournment to retain new counsel. The trial judge had the discretion to reject

that request, which would have effectively required a substantial period for new

counsel to get up to speed and would have required an adjournment of the trial.

See State v. Kates, 

216 N.J. 393

, 396 (2014) (recognizing that while a criminal

defendant has a right to counsel of choice, that right is not absolute and may be

balanced against the demands of the court's calendar and other considerations).



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