State v. Luis A. Maisonet (083066) (Atlantic County & Statewide)

S
                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                      State v. Luis A. Maisonet (A-28-19) (083066)

Argued September 15, 2020 -- Decided March 23, 2021

RABNER, C.J., writing for the Court.

       The Court considers whether defendant Luis Maisonet was denied his
constitutional right to counsel when, on the day his murder trial was set to begin, he
sought an adjournment to see if he could hire a private attorney and his request was
denied.

       Defendant was charged with first-degree murder and other offenses in connection
with a September 2016 shooting. After learning that his ex-girlfriend and her new
boyfriend, Christopher Romero, were expecting a child, defendant went to the store in the
outlet mall where Romero worked, pulled out a handgun, and fatally shot Romero.
Defendant then walked to the nearby store where his ex-girlfriend worked and pointed
the gun at her before shooting himself in the chest area. Defendant was treated at the
hospital and was arrested days later. He requested that a public defender represent him.

        Trial was scheduled to start on December 4, 2017. By then, defendant had been
represented by the same assistant deputy public defender for fifteen months. Right before
jury selection was to begin, defendant asked the court for an adjournment. He stated that,
although he would have stayed with his attorney “all the way to the end” if he had taken a
plea, “I cannot go to trial with [appointed counsel]” because she had tried only two cases
in her career, neither of which were murder trials.

        The trial judge offered defendant two choices -- to hire his own attorney or to
represent himself -- and stated, “I don’t decide who represents you.” When defendant
interjected, the trial judge told defendant to stop talking and stated, “I have no reason to
believe that [appointed counsel] cannot represent you fairly and to the best of her ability.
She is an experienced lawyer.” The judge denied the adjournment request and indicated
that appointed counsel would represent defendant through trial.

       Defendant then repeated his request for a postponement to “go back and call
family . . . to see if they can get some money together” to hire a private lawyer. The
judge noted that they were “here for trial” and that defendant had known about the trial,
his plea offer, and who his attorney was “for a long period of time.” The judge again


                                             1
denied the adjournment request; when defendant pressed on, the judge asked defendant to
take a seat so she could bring the jury in.

        The case proceeded to trial, and the jury convicted defendant on all counts
presented. The Appellate Division affirmed defendant’s convictions. The Court granted
certification limited to this question: “whether defendant’s constitutional right to counsel
of his choice was violated.” 

240 N.J. 159

(2019).

HELD: The Court affirms settled principles of law that require trial judges to conduct a
“reasoned, thoughtful analysis” of certain factors when they consider a request for an
adjournment to hire new counsel. See State v. Kates, 

216 N.J. 393

, 396-97 (2014); State
v. Furguson, 

198 N.J. Super. 395

, 402 (App. Div. 1985). If a trial judge does not conduct
the proper analysis, it may be necessary to reverse a conviction. But defendants are not
automatically entitled to a new trial. When a reviewing court can glean or infer the
relevant considerations from the record, it may evaluate the appropriate factors. The
Court does not find an actual deprivation of the right to counsel of choice here, so the
doctrine of structural error does not apply.

1. The trial court must strike a balance between (a) its right to control its own calendar
and the public’s interest in the orderly administration of justice and (b) a defendant’s
constitutional right to obtain counsel of his choice. To do so, New Jersey courts use eight
factors from United States v. Burton, 

584 F.2d 485

, 490-91 (D.C. Cir. 1978). See Kates
and Furguson. The Court reaffirms the use of those factors and reminds trial judges to
analyze them when defendants request an adjournment to obtain counsel. (pp. 11-13)

2. Trial courts have broad discretion in weighing the factors. An arbitrary or erroneous
ruling that amounts to an actual deprivation of the right to counsel of one’s choice
implicates structural error, and prejudice is presumed. But courts cannot presume
structural error from a trial court’s failure to ask questions or make explicit findings about
the Furguson factors if the record otherwise reveals that an adjournment to seek to hire
new counsel was not appropriate. If an appellate court can glean or infer the relevant
considerations from the record, it can analyze the factors to determine whether the trial
court abused its discretion in denying an adjournment. (pp. 13-14)

3. The Court reviews in detail case law from the D.C. Circuit and other jurisdictions
which assess relevant factors on appeal in light of the record if the trial court neglected to
analyze them. That approach sensibly protects both the constitutional rights of
defendants and the public’s interest in the orderly administration of justice. (pp. 14-17)

4. The Court evaluates the Furguson factors on the record here; though thin, the record
allows consideration of nearly all of the factors. First, as to the length of the requested
delay, defendant’s request was open-ended, and he acknowledged he had not yet
approached either his family, to see if they could provide funds, or a private attorney.


                                              2
One can infer the delay would have been considerable. Second, the Court cannot tell
whether other continuances had been requested and granted. The Court measures the
third factor -- the balanced convenience or inconvenience to the litigants and the court --
in part by the timing of the request. Here, the jurors were summoned, witnesses were
prepared, and the trial court’s schedule was cleared prior to defendant’s last-minute
request. (pp. 17-18)

5. As to the fourth factor, defendant’s sole reason for the request was that his lawyer
lacked sufficient experience. The trial court made an express finding there was no reason
to believe the experienced counsel could not represent defendant fairly. This implied the
trial court’s view that denying the continuance would not result in identifiable prejudice
to defendant, the seventh factor. Fifth, defendant alone contributed to the circumstance
that gave rise to the motion by waiting until the day of trial to ask for an adjournment and
failing to act with reasonable diligence. Sixth, no other competent counsel was prepared
to try the case: defendant had not yet approached his family or private counsel. As to the
complexity of the case, the eighth factor, no defendant can be expected to stand trial for
murder with an attorney who has not begun to prepare the case. (pp. 18-19)

6. The Court disapproves of what happened at the abbreviated hearing and directs that
trial courts analyze requests for continuances to hire counsel of choice in accordance with
settled case law. To accomplish that, trial judges should ask defendants questions
designed to elicit information relevant to the Furguson factors. That inquiry does not
have to be lengthy to facilitate a reasoned analysis of the applicable factors. (pp. 19-20)

       The judgment of the Appellate Division is AFFIRMED.

        JUSTICE PIERRE-LOUIS, dissenting, writes that the trial court summarily
denied defendant’s request without conducting the level of analysis required, which is an
abuse of discretion. The trial court did not address the Furguson factors and also failed to
elicit any facts from defendant or conduct any inquiry regarding his request. Further, the
trial court’s assessment of counsel’s abilities cannot cure defendant’s own concerns
regarding his attorney’s abilities. Justice Pierre-Louis agrees that on an adequate factual
record, an appellate court can glean the relevant considerations and determine whether
the trial court appropriately denied an adjournment request, but not here. This case
involved a thin record of a brief proceeding during which defendant was not allowed to
speak to explain his request or take advantage of one of the two options the trial court
offered him before denying his request. In Justice Pierre-Louis’s view, this amounts to
structural error.

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON
join in CHIEF JUSTICE RABNER’s opinion. JUSTICE PIERRE-LOUIS filed a
dissent, in which JUSTICE ALBIN joins.



                                             3
          SUPREME COURT OF NEW JERSEY
                A-28 September Term 2019
                          083066


                    State of New Jersey,

                   Plaintiff-Respondent,

                             v.

                     Luis A. Maisonet,

                   Defendant-Appellant.

           On certification to the Superior Court,
                     Appellate Division .

          Argued                      Decided
     September 15, 2020            March 23, 2021


   Margaret McLane, Assistant Deputy Public Defender,
   argued the cause for appellant (Joseph E. Krakora, Public
   Defender, attorney; Margaret McLane, on the brief).

   Nicole L. Campellone, Assistant Prosecutor, argued the
   cause for respondent (Damon G. Tyner, Atlantic County
   Prosecutor, attorney; Nicole L. Campellone, of counsel
   and on the brief).

   Joe Johnson argued the cause for amicus curiae American
   Civil Liberties Union of New Jersey (American Civil
   Liberties Union of New Jersey Foundation, attorneys; Joe
   Johnson, Jeanne LoCicero, and Alexander Shalom, on the
   brief).


CHIEF JUSTICE RABNER delivered the opinion of the Court.

                             1
      In this case, defendant asked for an adjournment of his murder trial on

the day it was set to begin. He had been represented by an assistant deputy

public defender since his arrest. Fifteen months later, and a full year after his

indictment, he told the judge for the first time that he wanted to call family

members “to see if they can get some money together” so that he could hire “a

private lawyer.” After a brief exchange with defendant, the trial judge denied

the request. Defendant later challenged his conviction on the ground that he

was denied his constitutional right to counsel.

      Like the Appellate Division, we reject defendant’s claim. We also

affirm settled principles of law that require trial judges to conduct a “reasoned,

thoughtful analysis” of certain factors when they consider a request for an

adjournment to hire new counsel. See State v. Kates, 

216 N.J. 393

, 396-97

(2014) (discussing factors outlined in State v. Furguson, 

198 N.J. Super. 395

,

402 (App. Div. 1985)).

      If a trial judge does not conduct the proper analysis, as happened in this

case, it may be necessary to reverse a conviction and start anew. But

defendants are not automatically entitled to a new trial. When a reviewing

court can glean or infer the relevant considerations from the record, it may

evaluate the appropriate factors, as the Appellate Division did here.




                                        2
      The Appellate Division found no abuse of discretion under the

circumstances. We agree and affirm defendant’s conviction.

                                       I.

                                       A.

      The facts relating to the offense are not central to defendant’s argument

on appeal. For that reason, we summarize them briefly.

      Defendant Luis Maisonet and Jennifer Villanueva had a long-term

relationship that ended in 2015 or 2016. Defendant wanted to resume the

relationship afterward and texted Villanueva often. Over time, he also texted,

confronted, and threatened Christopher Romero, Villanueva’s new boyfriend.

      Villanueva and Romero worked at different retail stores in an outlet mall

in Atlantic City. On September 1, 2016, they drove to work together. Several

months earlier, Villanueva had told defendant that she and Romero were

expecting a child.

      Around noon on September 1, defendant entered the store where Romero

worked, pulled out a handgun, and shot Romero. Romero fell to the ground ,

and defendant shot him two more times. Several witnesses in the store saw

defendant shoot Romero, who died from the gunshot wounds.

      Defendant then walked over to the store where Villanueva worked,

pointed the gun at her, and said “bye-bye baby.” He fired a round into the

                                       3
store’s ceiling and then shot himself in the chest area. An off-duty police

officer who was shopping in the store heard defendant fire the gun and saw

him fall. The officer wrestled the gun away from defendant.

      After the shooting, defendant was treated at the hospital. According to

the court’s intake form, defendant was arrested days later and requested that a

public defender represent him.

                                       B.

      On November 30, 2016, a grand jury in Atlantic County charged

defendant in an indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2); second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a)(1); second-degree possession of a handgun without a

permit, N.J.S.A. 2C:39-5(b)(1); fourth-degree aggravated assault (pointing a

firearm), N.J.S.A. 2C:12-1(b)(4); and second-degree possession of a handgun

after having been convicted of a crime, N.J.S.A. 2C:39-7(b)(1). The State

dismissed an additional charge before trial.

      Trial was scheduled to start one year later, on December 4, 2017. By

then, defendant had been represented by an assistant deputy public defender

for fifteen months. Defendant does not dispute the State’s representation that

the same public defender represented him the entire time.




                                       4
     Right before jury selection was to begin, defendant asked the court for

an adjournment. The following exchange took place:

           DEFENDANT: Well, good morning, Judge -- Judge [].
           Your reputation and your word -- the word of the
           county is you’re a very fair judge, a very fair judge, and
           I want to appeal to your fairness. When I got together
           with Ms. Weigel -- she’s a very nice lady. I have a lot
           of respect for her. I told her if she could get me a deal,
           I’d go with her all the way to the end. Ms. Weigel has
           never been in murder trials before. She’s only had two
           murder -- two trials in her practice, none of this
           magnitude. And I feel it’s not fair to me for her to
           represent me in a case of this magnitude.

                  If I’m going to -- anything that’s going to happen
           to me in this trial, as long as I’m defended by a lawyer
           that has experience in murder trials and a trial of this
           magnitude, I’m okay with it, but she has no experience
           whatsoever in this type of case and the magnitude of
           this case. So I don’t feel that I’m being represented
           right.

                  When I got together with her in the beginning, I
           said if she could get me the right deal, I was okay with
           that. But to go to murder -- to go through a trial for
           murder and be represented by an attorney that has no
           experience, only two trial experience and lost one of
           them, minor trials, how do you see that’s fair?

                  So I’m going to appeal to your fairness, because
           in the county the word is that you’re fair, you’re a very
           fair judge. And I cannot go to trial -- I cannot go to trial
           with Ms. Weigel. I respect her. I admire her very
           much, but I cannot go to trial with Ms. Weigel.

           THE COURT: Okay. Mr. Maisonet, you have a couple
           of choices. You can either hire your own attorney or

                                        5
you can represent yourself.        I don’t decide who
represents you. I have no --

DEFENDANT: Well, then --

THE COURT: Don’t -- stop talking.

DEFENDANT: I’m sorry.

THE COURT: I have no reason to believe that Ms.
Weigel cannot represent you fairly and to the best of
her ability. She is an experienced lawyer. I have no
reason to doubt that she’s unable to represent you. So
at this time we haven’t even started the trial, and you’ve
already asked for a new attorney, claiming that she
can’t represent you. I have no evidence of that. I have
no reason to believe she cannot.

DEFENDANT: In my -- in my opinion --

THE COURT: So you’re shaking your head, but that’s
my decision. She is your attorney, and she’ll be
representing you through this trial.

DEFENDANT: Then I ask for a postponement so I can
go back and call family members so they -- they can get
some -- to see if they can get some money together and
I can get me a private lawyer.

THE COURT: Okay.

DEFENDANT: Because I will not go to trial with Ms.
Weigel.

THE COURT: Okay. How --

DEFENDANT: I respect her. I admire her very much.
I have nothing against her, but I cannot go to trial with
Ms. Weigel.

                            6
THE COURT: I heard -- and you said all those things
already. Your request is denied. We’re here for trial.
So you’ve known about this trial for a long period of
time.

DEFENDANT: But --

THE COURT: You’ve known about your offer.
You’ve known who your attorney is.

DEFENDANT: Right.

THE COURT: So we’re going to proceed with trial
today. So your request is denied.

DEFENDANT: That’s -- you don’t think that’s unfair
to me to go to trial with Ms. Weigel?

THE COURT: I’ve made my ruling. I’ve made my
ruling.

DEFENDANT: I’m actually -- no disrespect, Your
Honor, to the Court.

THE COURT: Well, right now you are disrespecting
me, because I’ve made a ruling.

DEFENDANT: I’m sorry.

THE COURT: So I’m not going to hear anything else
about that. So you can take a seat, because I’m going
to bring the jury in after we have some preliminary
discussions about some other matters.

DEFENDANT: I just want it to be on record that it’s
unfair to me --

THE COURT: You’re on record. You’re certainly on
record.

                          7
            DEFENDANT: -- to go to trial with an inexperienced
            lawyer --

            THE COURT: You’re saying the same things over --

            DEFENDANT: -- who never been to a trial of this
            magnitude.

            THE COURT: You’re saying the same things over
            again. It’s on record. Okay.

      The case proceeded to trial on all but the last count of the indictment,

possession of a handgun after having been convicted of a crime. The jury

convicted defendant on all four counts. In a separate trial afterward, the jury

also convicted defendant of the additional handgun possession count.

      The trial court sentenced defendant to life in prison for murder, subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a

consecutive sentence of eighteen months for aggravated assault. One

additional count was merged, and the sentences on the two remaining counts

were to run concurrently.

                                        C.

      Defendant appealed. Among other arguments, he claimed that he was

deprived of his constitutional right to counsel when the trial court arbitrarily

denied his request for a continuance to retain private counsel. The Appellate

Division rejected the argument and affirmed defendant’s convictions and

sentence.
                                         8
      Citing prior precedent, the appellate court initially identified factors that

trial courts should consider to assess a request for an adjournment:

            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, 198 N.J. Super. at 402

(quoting United
            States v. Burton, 

584 F.2d 485

, 490-91 (D.C. Cir.
            1978).]

We refer to those factors as the Furguson or Burton factors.

      Alluding to some of the factors, the Appellate Division highlighted the

trial court’s statements that there was no reason to believe defendant’s attorney

could not represent defendant fairly; that she was an experienced lawyer; and

that defendant had known about the trial, the plea offer, and who his attorney

was for a long period of time. The appellate court also observed that

defendant offered no explanation for why he waited until the first day of trial

                                         9
to seek a continuance and had no concrete financial plan or timetable to secure

a private lawyer. As a result, the court reasoned, any continuance would have

been for an indefinite period with no assurance defendant could retain private

counsel.

      Under the circumstances, the Appellate Division found no mistaken

exercise of discretion in the trial court’s denial of defendant’s belated

adjournment request.

      We granted defendant’s petition for certification limited to this question:

“whether defendant’s constitutional right to counsel of his choice was

violated.” 

240 N.J. 159

(2019). We also granted leave to the American Civil

Liberties Union of New Jersey (ACLU) to appear as amicus curiae.

                                        II.

      As he did before the Appellate Division, defendant contends the trial

court arbitrarily denied his request for a continuance to hire private counsel.

By doing so, defendant argues, the trial court deprived him of his

constitutional right to counsel. He claims the error was structural and requires

the reversal of his convictions.

      At the core of his argument, defendant stresses that the trial court

“simply did not consider the Furguson factors at all.” As a result, defendant

submits, the court’s decision cannot amount to an exercise of discretion.

                                        10
       The ACLU likewise contends the trial court failed to engage in

meaningful analysis before rejecting defendant’s request for an adjournment.

Because the record was sparse, the Appellate Division had little to review to

determine if the court’s ruling was appropriate, according to the ACLU. The

ACLU also argues the Appellate Division failed to analyze the denial of

defendant’s adjournment request for structural error, which calls for automatic

reversal.

      The State submits defendant’s constitutional right to counsel was not

violated when the trial court denied his late request for a postponement to

retain private counsel. The State maintains that the colloquy between

defendant and the court provided the judge with the essential information to

make the proper decision -- and enough information to deny defendant’s

request. According to the State, a more detailed factual inquiry was not

required because the trial court listened to defendant’s reasons and did not

need additional information.

                                      III.

      Both the Federal and State Constitutions guarantee criminal defendants

the right to counsel. See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. As

part of that guarantee, defendants who do not need appointed counsel have the




                                       11
right “to choose who will represent” them. 

Kates, 216 N.J. at 395

(quoting

United States v. Gonzalez-Lopez, 

548 U.S. 140

, 144 (2006)).

      The right is not absolute, however. Indigent defendants represented by

court-appointed counsel do not have a right to choose their lawyer.

Id. at 395

n.1; see also Morris v. Slappy, 

461 U.S. 1

, 11-14 (1983) (concluding it was not

error to deny a continuance after one public defender substituted for another,

in light of the record presented). And all defendants must act “with reasonable

diligence” when choosing counsel to avoid delaying the efficient operation of

the justice system. 

Furguson, 198 N.J. Super. at 401

.

      In the end, “the trial court must strike a balance between its inherent and

necessary right to control its own calendar and the public’s interest in the

orderly administration of justice, on the one hand, and the defendant’s

constitutional right to obtain counsel of his own choice, on the other.” State v.

Hayes, 

205 N.J. 522

, 538 (2011) (quoting 

Furguson, 198 N.J. Super. at 402

).

      To help trial judges balance the relevant interests when a defendant

seeks an adjournment to retain counsel, we adopted a series of factors from the

D.C. Circuit’s 1978 ruling in Burton. See, e.g., 

Kates, 216 N.J. at 396

;

Furguson, 198 N.J. Super. at 402

. The factors are recited above.

      We reaffirm their use today and remind trial judges to analyze them

when defendants request an adjournment to obtain counsel of their choice. As

                                       12
we noted in Kates, trial court judges should “conduct[] a reasoned, thoughtful

analysis of the appropriate 

factors.” 216 N.J. at 396

.

      Trial courts have broad discretion in weighing the factors and striking

the proper balance, and their decisions are entitled to deference on appeal. See

id. at 397;

State v. Miller, 

216 N.J. 40

, 65 (2013) (noting the deferential

standard of review and stressing that “broad discretion must be granted trial

courts on matters of continuances” (quoting 

Morris, 461 U.S. at 11

)). An

arbitrary or erroneous ruling that amounts to an actual deprivation of the right

to counsel of one’s choice, however, implicates structural error. See

Gonzalez-Lopez, 548 U.S. at 150

; 

Kates, 216 N.J. at 395

-97. In such cases,

prejudice is presumed. 

Gonzalez-Lopez, 548 U.S. at 146

; 

Kates, 216 N.J. at

395

-97. But courts cannot presume structural error from a trial court’s failure

to ask questions or make explicit findings about the Furguson factors if the

record otherwise reveals that an adjournment to seek to hire new counsel was

not appropriate under the circumstances.

      Even the most conscientious judges make mistakes. If a trial judge fails

to analyze the Furguson factors, that error -- in certain instances -- may

amount to structural error and lead to the reversal of a conviction. Defendant

and the ACLU press for a blanket rule that reversals are automatic whenever a

trial court neglects to analyze the factors. We are not aware of any courts that

                                        13
follow that course. Instead, if an appellate court can glean or infer the relevant

considerations from the record, it can analyze the factors to determine whether

the trial court abused its discretion in denying an adjournment. 1

      The D.C. Circuit, our source for the proper inquiry, has followed that

approach. In United States v. Rettaliata, for example, the defendant asked to

replace his attorney on the day of trial. 

833 F.2d 361

, 362 (D.C. Cir. 1987). In

response, the court conducted a hearing and heard arguments from the parties

on whether the case should proceed.

Ibid. The trial court

then denied the

request for a postponement to retain new counsel but “did not specifically list

the factors that it relied upon.”

Id. at 362-63.

On appeal, in an opinion

authored by Circuit Judge Abner Mikva, the court cited the Burton factors,

applied just a few of them to the record, and concluded “the trial judge did not

abuse his discretion in denying [a] last-minute plea to obtain new counsel.”

Id.

at 363.

In short, although the trial court did not mention any factors, let alone

conduct a reasoned analysis, the appellate court stepped in to perform that task

based on the record.

      In United States v. Poston, a defendant moved for a continuance the

afternoon before trial was scheduled to begin so that his newly retained lawyer



1
  A reviewing court can also consider whether a remand might be appropriate
in a given case to expand the record.
                                      14
could “prepare more fully for trial.” 

902 F.2d 90

, 96 (D.C. Cir. 1990).2 The

trial judge stated he would grant the continuance only if the defendant “agreed

to pay all the expenses already incurred for the trial, including the fee of his

former court-appointed attorney and the expenses of the jury.”

Ibid. The

defendant refused,

and trial began with both attorneys present.

Id. at 96-97.

      On appeal, the D.C. Circuit recited the Burton factors and applied

several of them. The Circuit effectively stepped into the shoes of the trial

judge when it observed the court “could reasonably have concluded that [the

defendant’s] motion was ‘dilatory, purposeful, or contrived’” because the

defendant “provided no justification for the delay in selecting new counsel.”

Id. at 97

(quoting 

Burton, 584 F.2d at 491

). Ultimately, the Circuit found no

abuse of discretion.

Id. at 98.

      In another case, the Circuit addressed a defendant’s motion to change

counsel on the day of trial. United States v. Jefferson, 

974 F.2d 201

, 203

(D.C. Cir. 1992). For more than a year after his arrest, the defendant had been

represented by an attorney who was prepared to try the case.

Id. at 203-04

.
That lawyer informed the court that the defendant’s family had retained new

counsel and also moved for a continuance to allow the new lawyer time to


2
  The defendant offered a second reason that is not relevant here: to postpone
the case until after the trial of his codefendant, who “might possibly provide
exculpatory testimony.” 

Poston, 902 F.2d at 96

.
                                          15
prepare for trial.

Id. at 203.

The trial court denied the motion for a

continuance, citing the court’s crowded trial calendar, and invited new counsel

to “sit at the counsel table . . . and participate.”

Id. at 203-04

(ellipsis in

original). The Circuit also noted the original lawyer tried the case

professionally.

Id. at 204.

      The defendant challenged the denial of his motion for a continuance on

appeal. Once again, the D.C. Circuit cited the Burton factors, applied a few of

them in light of the record, and found no abuse of discretion.

Id. at 204-05.

See also United States v. Gantt, 

140 F.3d 249

, 256-58 (D.C. Cir. 1998)

(considering several Burton factors on appeal and concluding the trial court

acted within its discretion when it granted replacement counsel, who had been

in the case for two weeks, only a two-day continuance rather than the thirty

days he requested).

      Other jurisdictions have taken the same approach. See, e.g., State v.

Hein, 

674 P.2d 1358

, 1366-68 (Ariz. 1983) (en banc) (applying the Burton

factors on appeal, after the trial court did not set forth its reasons on the

record, and finding no abuse of discretion in the denial of a defendant’s

request for a continuance in order to be represented by a particular attorney);

State v. Roth, 

881 P.2d 268

, 279 & n.12 (Wash. Ct. App. 1994) (finding no

abuse of discretion in the trial court’s denial of a requested continuance and

                                         16
rejecting the defendant’s challenge to “the trial court’s failure to engage in on -

the-record balancing to decide the counsel of choice issue” in part because “the

record in this case amply permits effective appellate review of the issue”).

      The above approach -- assessing the relevant factors on appeal in light of

the record if the trial court neglected to analyze them -- sensibly protects both

the constitutional rights of defendants and “the public’s interest in the orderly

administration of justice.” 

Furguson, 198 N.J. Super. at 402

. Neither interest

is served by a retrial if it can be determined on appeal that a trial court’s denial

of an adjournment request was appropriate under the circumstances.

                                        IV.

      We next consider whether the Furguson factors can be evaluated on the

record here. Although the record is thin, it is adequate to allow consideration

of most of the factors. We agree with the Appellate Division that a number of

fact-specific considerations weighed against defendant’s request for an

adjournment. We address each factor in turn.

      First, as to the length of the requested delay, defendant plainly stated he

“cannot go to trial with” appointed counsel. His request was open-ended. He

acknowledged he had not yet approached either his family, to see if they could

provide funds, or a private attorney. And any attorney new to the case would

have needed time to prepare to defend a murder charge. Under the

                                        17
circumstances, even though neither the court nor defendant focused on how

long of a continuance defendant wanted, one can reasonably infer the delay

would have been considerable.

      Second, we cannot tell “whether other continuances ha[d] been requested

and granted.” See 

Kates, 216 N.J. at 396

(quoting 

Furguson, 198 N.J. Super.

at 402

).

      The third factor, “the balanced convenience or inconvenience to the

litigants, witnesses, counsel, and the court,” ibid., is measured, in part, by the

timing of an adjournment request. As the trial court stated, “We’re here for

trial.” To prepare for the start of a trial, jurors are summoned, witnesses are

prepared, and the court’s schedule is cleared. Those events took place before

defendant’s last-minute request, and jury selection began almost immediately

after the court’s ruling. The State presented its witnesses the following day.

We cannot tell, however, whether the court could have begun a different trial

with the assembled jury pool.

      As to the fourth factor, the sole reason defendant advanced for an

adjournment was that, although he was fine staying with his attorney “all the

way to the end” to negotiate a plea, he thought she lacked sufficient experience

to try the case. The court made an express finding on that point: “[s]he is an

experienced lawyer” and there was “no reason to believe” counsel could not

                                        18
represent defendant fairly. Implicit in that finding was the court’s view that

denying a continuance would not “result in identifiable prejudice” to

defendant, the seventh factor. See

ibid.

Defendant alone “contributed

to the circumstance which [gave] rise” to

the motion, the fifth factor. See

ibid. He acknowledged he

had worked with

the same public defender “in the beginning,” yet he waited until the day of trial

-- more than a year after his arrest and indictment -- to ask for an adjournment.

Despite having ample time to try to hire a private lawyer, he did not act with

reasonable diligence. See State v. McLaughlin, 

310 N.J. Super. 242

, 259

(App. Div. 1998).

      The record also reveals that no “other competent counsel [was] prepared

to try the case,” the sixth factor. See 

Kates, 216 N.J. at 396

. Defendant

explained that he had not yet even spoken with family members to see if they

could provide funds for him to retain private counsel.

      As to the complexity of the case, the eighth factor, no defendant can be

expected to stand trial for murder with an attorney who has not even begun to

prepare the case.

      The record thus enables us to assess nearly all of the relevant factors.

To be clear, we do not approve of what happened at the abbreviated hearing

and once again direct that trial courts analyze requests for continuances to hire

                                       19
counsel of choice in accordance with settled case law. See 

Kates, 216 N.J. at

396

-97. To accomplish that, trial judges should ask defendants questions

designed to elicit information relevant to the Furguson factors. That inquiry

does not have to be lengthy to facilitate a reasoned analysis of the applicable

factors.

Id. at 397.

      Here, however, it is difficult to imagine a different outcome on the facts

presented. When a defendant shows up on the morning of a murder trial, a

year after indictment, and asks for time to call family members to see if they

might provide funds for a private attorney, it can hardly be said that denying a

request for an adjournment amounts to an abuse of discretion. See 

Miller, 216

N.J. at 65

.

      We do not find an actual deprivation of the right to counsel of choice in

this case, so the doctrine of structural error does not apply.

                                        V.

      For the reasons outlined above, we affirm the judgment of the Appellate

Division.



    JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUSTICE PIERRE-
LOUIS filed a dissent, in which JUSTICE ALBIN joins.




                                        20
                               State of New Jersey,

                              Plaintiff-Respondent,

                                        v.

                                Luis A. Maisonet,

                              Defendant-Appellant.


                     JUSTICE PIERRE-LOUIS, dissenting.


      In this matter, the trial court summarily denied defendant’s request for

an adjournment to secure private counsel of his choosing. As this Court made

clear in State v. Kates, “if a trial court summarily denies an adjournment to

retain private counsel without considering the relevant factors . . . a

deprivation of the right to choice of counsel [can] be found” and structural

error requiring reversal can be triggered. 

216 N.J. 393

, 397 (2014). Because

the trial court summarily denied defendant’s request without conducting the

level of analysis required by our case law, I respectfully dissent.

      This Court’s opinion in Kates was written specifically to underscore the

principle that “[i]f 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.”

Id. at 396-97.

That simply did not

occur in this case, and it is my view that the trial court’s failure to conduct any
                                         1
analysis whatsoever in denying defendant’s adjournment request amounts to an

abuse of discretion.

          As detailed in the majority’s recitation of the facts, prior to jury

selection, defendant attempted to explain to the trial judge his concerns with

his representation. Defendant told the court that he was uncomfortable

proceeding to trial with his assistant deputy public defender who had limited

trial experience and had never handled a murder case. The trial judge advised

defendant as follows: “[Y]ou have a couple of choices. You can either hire

your own attorney or you can represent yourself. I don’t decide who

represents you.” Moments later, however, the trial judge did in fact decide

who would represent defendant when she ruled that the public defender would

continue as defense counsel. That ruling was made without giving defendant

an opportunity to speak or choose from the two options that the trial judge had

offered him just moments earlier. Specifically, the trial judge stated, upon

seeing defendant shake his head, “So you’re shaking your head, but that’s my

decision. She is your attorney, and she’ll be representing you through this

trial.”

          When defendant was given an opportunity to speak, he indicated that he

wished to avail himself of one of the two choices the trial judge had offered

and asked for a postponement to determine whether his family could obtain a

                                             2
private attorney. The trial judge simply responded, “Your request is denied.”

It is quite evident from the record that what transpired was a summary denial

of defendant’s request.

      During the brief exchange between defendant and the trial court, the

court unquestionably did not address the factors set forth in State v. Furguson,

198 N.J. Super. 395

, 402 (App. Div. 1985), and also failed to elicit any facts

from defendant or conduct any inquiry whatsoever regarding his request.

Similar to what occurred in Kates, the trial court here did not “inquire of

defendant himself, to determine the length of the requested delay”; did not

“assess whether [the] request was made in good faith”; and did not make any

“findings regarding the imperatives of its calendar.” See State v. Kates, 

426

N.J. Super. 32

, 51-53 (App. Div. 2012).

      In denying defendant’s request, the court noted that defense counsel was

an experienced lawyer and that the court had no reason to believe defense

counsel could not represent defendant fairly and to the best of her ability.

Defense counsel, however, had tried only two cases to a jury. The court’s

assessment of defense counsel’s abilities, moreover, cannot cure the

defendant’s own concerns regarding his attorney’s ability to properly represent

him in a murder trial. See

id. at 51

(“The court’s only expressed basis for

denying the requested continuance was its satisfaction . . . that [counsel] was

                                        3
prepared to try the case . . . . As we have observed, the availability of

competent counsel may not replace the right to choose one’s own counsel.”).

Without question, a defendant’s lack of confidence in his attorney can be

detrimental to the attorney-client relationship. “[T]he court’s confidence in

the assigned counsel’s competence [is] no substitute for the exercise of

defendant’s rights. ‘The issue in this case is the attorney-client relationship

and not the comfort of the court or the competency of the attorney.’”

Id. at 49

(quoting United States v. Nguyen, 

262 F.3d 998

, 1004 (9th Cir. 2001)).

      I agree with the majority that on an adequate factual record, an appellate

court can glean the relevant considerations regarding an adjournment request

and determine whether the trial court acted within its discretion to deny the

request even in the case of a summary denial, like this one. Unfortunately,

such an adequate factual record does not exist here. As the majority accurately

pointed out, “the record is thin.” Ante at ___ (slip op. at 17). In reviewing the

record presented, we can do no more than make assumptions in attempting to

apply a reasoned and thoughtful analysis of the Furguson factors. For

example, we have no idea how long the delay would have been. Defendant

might have conferred with his family and determined fairly quickly that they

were either able or not able to pay for private counsel, but that is speculation

since he was not allowed to do so. The record is likewise devoid of any

                                        4
indication whether other continuances had been requested and granted in this

case. And with regard to any potential inconvenience of the court, similar to

Kates, “[w]e do not know whether other cases were available for the court to

try, nor the impact of a continuance on the State and its witnesses, as the court

did not inquire whether the State objected to the continuance.” Kates, 426 N.J.

Super. at 53. The sparse record here simply does not allow us to analyze the

Furguson factors the way that the trial court, which was in the best position to

do so, should have.

      The majority cites several cases from the D.C. Circuit Court of Appeals

and other jurisdictions in which the appellate courts searched the record for

information to assist in conducting a meaningful inquiry regarding an

adjournment request. Assessing a continuance request, however, involves “an

intensely fact-sensitive inquiry.” State v. Hayes, 

205 N.J. 522

, 538 (2011).

Indeed, the cases cited by the majority are factually distinguishable from the

present matter, and the trial courts in two of those cases actually held full

hearings on defendants’ motions for a continuance to obtain private counsel.

United States v. Poston, 

902 F.2d 90

, 97 & n.6 (D.C. Cir. 1990) (trial court

held a hearing on the defendant’s motion for a continuance that would allow

newly acquired counsel to prepare for trial); United States v. Rettaliata, 

833 F.2d

361

, 362 (D.C. Cir. 1987) (trial court held a hearing and heard argument

                                         5
from all the parties, including a co-defendant, on the defendant’s motion to

postpone trial and obtain new counsel). In two other cases, courts denied

continuances based on a developed record. State v. Hein, 

674 P.2d 1358

, 1367

(Ariz. 1983) (record reflected two previously granted continuances, a rapidly

approaching speedy trial deadline, witnesses present from out of state, and a

co-defendant who was anxious to go to trial); State v. Roth, 

881 P.2d 268

, 277-

78 (Wash. Ct. App. 1994) (record reflected that the trial court had previously

granted a continuance the defendant requested when defense counsel was still

handling another trial and would miss jury selection).

      The records in those cases were thus sufficient to allow the appellate

courts to stand in the place of the trial courts and determine whether an

adjournment was appropriate under the circumstances. The record here,

however, is scant because “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.” See 

Kates, 426 N.J. Super. at 51

.

      As the majority points out, the Appellate Division here noted that when

defendant moved for the adjournment, he did not provide an explanation for

his delay in seeking the continuance or offer a concrete plan or timetable for

retaining private counsel. First, it is evident from the transcript that defendant

                                        6
was not given the opportunity to expound upon his request: the trial judge

directed him to “stop talking” and further told him to sit down because she was

“not going to hear anything else about [his request]” after making her ruling.

Second, “[i]t was incumbent upon the trial court to develop that record, and to

apply [the Furguson] factors.”

Id. at 53.

It certainly was not defendant’s

burden to craft an adjournment request perfectly tailored to this Court’s

jurisprudence.

      There may well have been an adequate basis to deny defendant’s request,

but that basis was not explored prior to the court’s summary denial of the

adjournment request and cannot be determined from the meager record before

us. See

ibid. (“[W]e can imagine

facts that conceivably would have justified

the discretionary denial of defendant’s continuance request here, based on the

factors we identified in Furguson and our Supreme Court endorsed in Hayes.

However, it is not for us to speculate.”).

      The majority notes that it does not approve of the abbreviated hearing

that occurred in this case and reaffirms that “trial judges should ‘conduct[] a

reasoned, thoughtful analysis of the appropriate factors.” Ante at ___ (slip op.

at 13). Although that clearly did not happen here, the majority does not find a

deprivation of defendant’s right to counsel of his choice. I disagree. This case

involved a thin record of a brief proceeding during which defendant was not

                                        7
allowed to speak to provide further explanation for his request or actually take

advantage of one of the two options the trial court offered him before denying

his request. As the majority notes, “[i]f a trial judge fails to analyze the

Furguson factors, that error -- in certain instances -- may amount to structural

error and lead to the reversal of a conviction.” Ante at ___ (slip op. at 13). In

my view, this case represents one of those instances. No amount of

speculation on appellate review with this sparse record can cure the denial of

defendant’s Sixth Amendment right to counsel of his choice.

      For all those reasons, I respectfully dissent.




                                         8

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