A court may not require the Public Defender to assign
new counsel to a defendant who is dissatisfied with the
attorney assigned to represent him or her, absent a showing
of “substantial cause.” State v. Lowery, 49 N.J. 476, 489-90
(1967); State v. Coon, 318 N.J. Super. 426, 438 (App. Div.
1998). Disagreement over trial strategy does not rise to the
level of good cause or substantial cause. State v. Crisafi, 128
N.J. 499, 518 (1992); State v. Coon, supra.
It is within the trial court’s discretion to determine
whether defendant’s request for an adjournment to permit
retention of counsel of choice should be granted or denied,
and absent an abuse of discretion which caused defendant
a “manifest wrong or injury,” the decision will not be
disturbed on appeal. State v. McLaughlin, 310 N.J. Super
at 259; State v. Ferguson, 198 N.J. Super. at 402. See Wheat
v. United States, 486 U.S. 153 (1988) (presumption in
favor of defendant’s counsel of choice must be recognized,
but presumption may be overcome by demonstration of
serious potential for conflict).
Defendant’s right to counsel of his own choosing was
not infringed upon where counsel was under indictment at
the time he was representing defendant but failed to inform
defendant of that fact. An attorney does not have an
affirmative duty to inform defendant of a pending
indictment which is completely unrelated to defendant’s
matter. State v. Pych, 213 N.J. Super. 446 (App. Div.
1986).
Trial court’s denial of defendant’s request for
admission of counsel pro hac vice did not violate Sixth
Amendment right to counsel. A defendant does not have a
constitutional right to choose out-of-state counsel where
in-state counsel is able to provide effective assistance. State
v. Chappee, 211 N.J. Super. 321 (App. Div. 1986), certif.
denied 107 N.J. 45 (1987). But see Fuller v. Diesslin, 868
F.2d 604 (3d Cir.), cert. denied, Perretti v. Fuller, 493 U.S.
873 (1989), a companion case of Chappee, in which the
Third Circuit held that, in co-defendant’s case, the state
trial court’s “wooden approach and its failure to make
record-supported findings balancing right to counsel with
demands of administration of justice resulted in arbitrary
denial of defendant’s motion for counsel pro hac vice, and
such arbitrary denial constituted per se constitutional error
justifying issuance of writ of habeas corpus.” See also
United States v. Voight, 89 F.3d 1050, 1074 (3d Cir.), cert.
denied 519 U.S. 1047 (1996) (Fuller v. Diesslin, supra,
reveals that “counsel of choice” cases can be divided into
two types: arbitrary denial of the right, and non-arbitrary
but erroneous).
C. Effectiveness and Competence of CounselThe standard for ineffective assistance of counsel
claims is set forth in Strickland v. Washington, 466 U.S. 668
(1984), which was essentially adopted by New Jersey in
State v. Fritz, 105 N.J. 42 (1987). See also State v.
Matamara, 306 N.J. Super. 6, 17 (App. Div. 1997), certif.
denied 153 N.J. 50 (1998); State v. Ellis, 299 N.J. Super.
440, 452 (App. Div.), certif. denied 151 N.J. 74 (1997).To prevail on an ineffective assistance of counsel claim,
defendant must show that counsel’s performance was both
deficient and prejudicial to defendant. In other words,
defendant must show (1) that counsel’s representation fell
below an objective standard of reasonableness, and (2) that
there exists a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. Strickland v. Washington, 466 N.J. at
688.“The benchmark for judging ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Id. at 687.
See Lockart v. Fretwell, 506 U.S. 364 (1993); Darden v.
Wainwright, 477 U.S. 168 (1986); State v. Fisher, 156 N.J.
494, 499 (1998); State v. Buonadonna, 122 N.J. 22, 41-42
(1992).Counsel’s performance is reviewed with “extreme
deference,” and there is “a strong presumption” that
counsel acted within the “wide range of reasonable
professional assistance,” and made all decisions in the
exercise of reasonable professional judgment. Strickland v.
Washington, 466 U.S. at 689-907; State v. Fritz, 105 N.J. at- See State v. Perry, 124 N.J. 128, 153-54 (1991); State v.
Marshall I, 123 N.J. 154 (1991). Reviewing courts are
required to “eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland v. Washington, 466
U.S. at 689.
Whether the result of the proceeding would have been
different but for counsel’s unprofessional errors, which
forms the basis for ineffective assistance, is a mixed
question of law and fact. State v. Russo, 333 N.J. Super.
119, 140 (App. Div. 2000). Where prima facie showing of
ineffective assistance has been made, the judge, on post-
conviction relief, even if it is the same just who presided at
trial, may not assume the proffered evidence does not create
a reasonable probability that the result of the proceeding