predictions of how the law may develop. See Elledge v.
Dugger, 823 F.2d 1439, 1443 (11th Cir.), modified o. g.
833 F.2d 250 (11th Cir. 1987), cert. denied 485 U.S. 1014
(1988).
Failure to file a suppression motion does not constitute
per se ineffective assistance of counsel. Kimmelman v.
Morrison, 477 U.S. 365 (1986). But see State v. Fisher, 156
N.J. 494 (1998) (counsel’s failure to refile a motion to
suppress would constitute deficient performance, as
required for ineffective assistance of counsel claim, if it was
based on improper conclusion that defendant waived his
right to refile the motion when he became a fugitive, rather
than a tactical decision).
The Constitution does not guarantee that counsel
appointed for a defendant shall measure up to his notions
of ability or competency. State v. Bentley, 46 N.J.Super.
193, 203 (App. Div. 1957), Assigned counsel is not
required to dance to defendant’s tune. State v. Rinaldi, 58
N.J. Super. 209. 214 (App. Div. 1959), cert. denied 366
U.S. 914 (1961). Defendant has no right to counsel who
will “blindly follow his instructions.” State v. Ortisi, 308
N.J. Super. 573, 588-89 (App. Div.), certif. denied 156 N.J.
383 (1998).
Counsel is not required to raise issues or advance
arguments that are obviously frivolous or specious. State v.
Hughes, 128 N.J. Super. 363 (App. Div.), certif. denied 66
N.J. 307 (1974).
Where appellate counsel decides not to raise an issue
on appeal which was raised during trial, and decision is
based upon a reasonable, tactical decision, defendant
cannot meet his burden of showing cause for the
procedural default or ineffective assistance of counsel.
Smith v. Murray, 477 U.S. 527 (1986).
A defendant who elects to represent himself at trial
cannot claim ineffective assistance of counsel on appeal.
State v. Ortisi, 308 N.J. Super. 573, 592 (App. Div.), cert.
denied 156 N.J. 383 (1998).
D. Conflicts of Interest
It is axiomatic that both the Federal and New Jersey
Constitutions afford a defendant the right to have the
untrammeled and unimpaired assistance of counsel. See
Glasser v. United States, 315 U.S. 60, 70 (1942); State v.
Bellucci, 81 N.J. 531, 538 (1980); State v. Murray, 315 N.J.
Super. 535, 543 (App. Div. 1998) , aff’d as mod. 162 N.J.
240 (2000); State v. Oliver, 320 N.J. Super.405, 423 (App.
Div.), certif. denied 161 N.J. 332 (1999).
These constitutional prescriptions mandate that a
defendant should have nothing less than the undivided
loyalty of his or her attorney. Glasser v. United States, 315
U.S. at 70; State v. Bellucci, 81 N.J. at 538; State v. Land,
73 N.J. 24, 29-30 (1977).In an unbroken line of decisions, both federal and state
courts have said that the attorney’s position as an advocate
for his or her client should not be compromised before,
during or after trial. See Von Moltke v. Gillies, 332 U.S.
708, 720-21 (1947); Williams v. Kaiser, 323 U.S. 471, 475
(1945); State v. Bellucci, 81 N.J. at 538; State v. Land, 73
N.J. at 31.If a private attorney, or any lawyer associated with that
attorney is involved in simultaneous dual representations
of co-defendants, a per se conflict arises and prejudice will
be presumed absent a valid waiver. State v. Norman, 151
N.J. 5, 24-25 (1997).If multiple representation in same criminal action is by
a public defender’s office, prejudice is not presumed.
However, if circumstances demonstrate a potential conflict
of interest and a significant likelihood of prejudice arising
from representation of multiple defendants by a public
defender’s office, presumption of both an actual conflict of
interest and actual prejudice will arise, without necessity of
proving such prejudice. State v. Bell, 90 N.J. 163, 171
(1982).In a case where the law firm of defendant’s trial
attorney has previously represented a prosecution witness,
the court rejected the argument highly speculative. State v.
Purnell, 126 N.J. 518, 535-36 (1992), see also State v.
Galati, 64 N.J. 572 (1974); State v. Morelli, 152 N.J. Super.
67, 70 (App. Div. 1977); State v. Needham, 298 N.J. Super.
100, 103 (Law Div. 1996); State v. Catanoso, 222 N.J.
Super. 641, 644 (Law Div. 1987). See also State v. Loyal,
164 N.J. 418 (2000) (trial court did not abuse its discretion
in granting a mistrial after discovering that defense counsel
previously, and recently, represented a significant State
witness, which in the circumstances of that case, created an
appearance of impropriety that could not be ignored. The
Court further held that in the absence of prejudice to
defendant or bad faith by the prosecution, there was no
double jeopardy violation and defendant could be retried).For a case where the State moved to have defendant’s
law firm disqualified because that firm had represented the
State’s lead detective in a civil rights and worker’s
compensation case, see State v. Bruno, 323 N.J. Super. 322
(App. Div. 1999). After finding that the law firm did not
represent the investigating detective at time it was engaged