State of New Jersey v. Daishon I. Smith ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0291-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. February 21, 2024
APPELLATE DIVISION
DAISHON I. SMITH,
Defendant-Appellant.
_______________________
Argued December 18, 2023 – Decided February 21, 2024
Before Judges Gilson, DeAlmeida, and Berdote Byrne.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Monmouth
County, Indictment No. 21-08-1004
Raymond Louis Hamlin argued the cause for appellant
(Hunt, Hamlin & Ridley, attorneys; Raymond Louis
Hamlin, of counsel and on the briefs).
Monica Lucinda do Outeiro, Assistant Prosecutor,
argued the cause for respondent (Raymond S. Santiago,
Monmouth County Prosecutor, attorney; Monica
Lucinda do Outeiro, of counsel and on the brief).
The opinion of the court was delivered by
GILSON, P.J.A.D.
In this appeal we address whether an entire county prosecutor's office
must be recused from a criminal prosecution when the county prosecutor has a
personal, disqualifying conflict. We hold that so long as the prosecutor has been
completely screened from and has no oversight of the matter, the prosecutor's
office should not be disqualified. Accordingly, we affirm the trial court's order
denying defendant's motion to disqualify the entire Monmouth County
Prosecutor's Office (MCPO) from continuing to prosecute defendant and
multiple co-defendants in this criminal matter.
I.
We discern the facts from the record on defendant's motion to recuse the
MCPO. In February 2020, an MCPO task force began investigating gang-related
activities in Monmouth and other New Jersey counties. That task force was led
by an MCPO detective, included several other MCPO detectives, and
coordinated some of its investigations with other law enforcement agencies.
Ultimately, the task force came to believe that various street gangs were
coordinating an array of criminal activities into a "systematic criminal
enterprise," referred to as "Golden State." The task force developed evidence
that Golden State members acted in concert to distribute illegal drugs, use and
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transfer firearms, recruit and discipline members, and expand their criminal
activities.
Beginning in October 2020, defendant Daishon I. Smith was charged with
multiple criminal offenses, the majority of which were based on evidence
developed by the task force. Initially, on October 4, 2020, defendant was
charged with several drug-related offenses. Later that month, defendant and
more than thirty co-defendants were charged with numerous first- and second-
degree offenses, including racketeering, drug offenses, and weapons offenses.
Ultimately, in August 2021, based on the evidence developed by the task
force, defendant and thirty-six co-defendants were indicted for over 120 crimes.
The charges against defendant in the indictment included first-degree
racketeering conspiracy, N.J.S.A. 2C:5-2, :41-2(d); first-degree gang
criminality, N.J.S.A. 2C:33-29; first-degree attempted murder, N.J.S.A. 2C:5-1,
:11-3; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, :11-3; and
numerous weapons and drug distribution offenses.
For approximately seven months, from October 30, 2020, to May 21,
2021, defendant was represented by Raymond S. Santiago, who was then
engaged in the private practice of law. During that time, Santiago represented
defendant at a detention hearing and filed two applications related to defendant's
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pretrial detention. Santiago also received initial discovery related to the charges
filed against defendant in October 2020.
In May 2021, Santiago filed a motion to be relieved as defendant's
counsel. In support of that motion, Santiago certified that in late April 2021, he
had some disagreements with defendant and defendant directed him to cease
working on his case. Santiago also conferred with defendant's family before
filing his motion to be relieved as counsel. On May 21, 2021, the trial court
granted Santiago's motion to be relieved as defendant's counsel. Since then,
defendant has been represented by other counsel. His current counsel began to
represent defendant on September 8, 2021.
Over a year later, on October 7, 2022, Santiago was sworn in as Acting
Monmouth County Prosecutor. The following month, the Senate approved
Santiago's appointment, and he was sworn in as the Monmouth County
Prosecutor.
In February 2023, defendant moved to recuse the entire MCPO from
prosecuting him in this matter. More than ten co-defendants joined in that
motion. In response, the MCPO submitted a certification from its Deputy First
Assistant Prosecutor representing that Santiago had been and would continue to
be screened from any involvement in this matter.
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In that regard, the Deputy First Assistant explained that when Santiago
began acting as county prosecutor, the Attorney General's Office advised the
MCPO that Santiago should be screened from any cases involving defendants
whom Santiago had previously represented. The certification also represented
that Santiago was not involved with the case and had no communications about
the case with MCPO personnel handling the matter.
After receiving defendant's recusal motion, the MCPO notified the
Attorney General's Office. In reply, the Attorney General's Office sent a March
24, 2023 letter, which stated that the MCPO could "continue to investigate and
prosecute the matter as [it] deem[ed] appropriate," provided Santiago continued
to be "wall[ed] off . . . from any involvement in this matter" and that the First
Assistant Prosecutor or Deputy First Assistant Prosecutor "assume[d]
supervisory authority over this matter."
In summary, the MCPO has represented that since Santiago began acting
as county prosecutor, he has not been involved in this prosecution, has always
been screened from the prosecution, has not shared any information he received
as counsel for defendant, and has had no supervisory authority over the
prosecution.
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After hearing oral argument, on May 1, 2023, the trial court issued an
order and written opinion denying the motion. In its comprehensive opinion,
the trial court found that the MCPO's representations were reliable and that there
were no legal grounds for the court to compel the recusal of the entire MCPO.
The trial court accepted, as conceded by the MCPO, that Santiago had a conflict
that required he not be personally involved in the prosecution of defendant. The
trial court went on to reason that there was no basis for imputing that conflict to
the entire MCPO because Santiago had always been screened from the
prosecution, had never shared confidential information about defendant, and
was not supervising the prosecution.
Defendant moved for a stay of the case pending his request for appellate
interlocutory review. On May 3, 2023, the trial court denied that motion.
Thereafter, we granted defendant's motion for leave to appeal. Defendant did
not file a motion with us for a stay of the criminal matter pending this appeal.
II.
On appeal, defendant presents four arguments, which he articulates as
follows:
I. THE TRIAL COURT ERRED AS CONFLICTS
INVOLVING APPOINTED OR ELECTED
PROSECUTORS CALL FOR IMPUTING THE
CONFLICT TO THE ENTIRE OFFICE
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II. THE TRIAL COURT ERRED IN FINDING
THAT THE STATE WAS UNDER NO OBLIGATION
TO NOTIFY [] DEFENDANT, THE COURT, OR THE
ATTORNEY GENERAL'S OFFICE UPON THE
APPOINTMENT OF RAYMOND SANTIAGO AS
MONMOUTH COUNTY PROSECUTOR
A. THE STATE FAILED TO OBTAIN
WRITTEN CONSENT FROM []
DEFENDANT AND THE ATTORNEY
GENERAL'S OFFICE
B. SCREENING DOES NOT CURE THE
PREJUDICE TO [] DEFENDANT
III. THE SEPARATION OF POWERS DOCTRINE
WILL NOT BAR A COURT FROM ADDRESSING A
LEGAL ERROR
IV. THE COURT WAS IN ERROR IN THE
FAILURE TO GRANT A STAY
Whether counsel, or an entire firm or office, should be disqualified is an
issue of law "subject to de novo plenary appellate review." City of Atlantic City
v. Trupos, 201 N.J. 447, 463 (2010); State v. Hudson, 443 N.J. Super. 276, 282
(App. Div. 2015). Moreover, when "'the trial judge had no factual disputes to
resolve on credibility grounds and only legal conclusions to draw,' reviewing
courts do not 'defer to the trial judge's findings' or ultimate decision." Hudson,
443 N.J. Super. at 282 (quoting State v. Bruno, 323 N.J. Super. 322, 331-32
(App. Div. 1999)).
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A. Whether a Prosecutor's Personal Conflict Should Be Imputed to the
Entire Office.
All parties agree that Santiago has a conflict based on his prior
representation of defendant that disqualifies him from being involved in the
criminal prosecution of defendant. The disputed issue is whether Santiago's
personal conflict should be imputed to the entire MCPO. To answer that
question, we look to the Rules of Professional Conduct (the RPCs) and cases
analyzing the RPCs.
We begin by considering whether an entire prosecutor's office should be
disqualified where the county prosecutor previously represented a defendant.
The RPCs set forth the "enforceable standards of behavior for lawyers." State
v. Rue, 175 N.J. 1, 14 (2002). A court's determination of whether an attorney
has a conflict of interest is guided by the RPCs. See Trupos, 210 N.J. at 461-
62. The RPCs applicable to this appeal are RPC 1.9, RPC 1.11, and RPC 1.10.
RPC 1.9 addresses conflicts of interest related to former clients. That Rule
prohibits a lawyer who has previously represented a client from representing
another client "in the same or a substantially related matter" where the former
client's and the current client's interests are materially adverse. RPC 1.9(a).
RPC 1.9 also prohibits a lawyer from using or disclosing information related to
his or her prior representation to the disadvantage of the former client, except if
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other provisions in the RPCs would permit or require disclosure of that
information or if the information has become generally known. RPC 1.9(c).
RPC 1.11 addresses successive government and private employment.
Subsection (d) of this Rule addresses lawyers formerly in private practice who
become government lawyers or public officials. RPC 1.11(d). This subsection
restricts a government lawyer's participation in matters with which he or she was
involved while in private practice, or in which the lawyer's former client had
interests adverse to the interests of the government agency or office for which
the lawyer now works. RPC 1.11(d)(2). In that regard, RPC 1.11(d) states in
relevant part:
Except as law may otherwise expressly permit, a lawyer
serving as a government lawyer or public officer or
employee of the government:
....
(2) shall not participate in a matter (i) in
which the lawyer participated personally
and substantially while in private practice
or nongovernmental employment, or (ii)
for which the lawyer had substantial
responsibility while in private practice or
nongovernmental employment, or (iii) with
respect to which the interests of the
appropriate government agency are
materially adverse to the interests of a
private party represented by the lawyer
while in private practice or
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nongovernmental employment, unless
under applicable law no one is, or by lawful
delegation may be, authorized to act in the
lawyer's stead in the matter or unless the
private party gives its informed consent,
confirmed in writing . . . .
RPC 1.11 also prohibits a government lawyer from disclosing confidential
information obtained while representing a private party. RPC 1.11(d)(1).
RPC 1.10(a) prohibits a lawyer associated with a firm from representing
a client when any other lawyer in the firm would be precluded from doing so by
RPC 1.9 or RPC 1.7. 1 That prohibition does not apply if the conflict is "based
on a personal interest of the prohibited lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining
lawyers in the firm." RPC 1.10(a). Additionally, RPC 1.10(c) provides that:
When a lawyer becomes associated with a firm, no
lawyer associated in the firm shall knowingly represent
a person in a matter in which that lawyer is disqualified
under RPC 1.9 unless:
(1) the matter does not involve a
proceeding in which the personally
disqualified lawyer had primary
responsibility;
1
RPC 1.7 prohibits a lawyer from representing a client where that
representation would create a concurrent conflict of interest, except under
certain defined circumstances.
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(2) the personally disqualified lawyer is
timely screened from any participation in
the matter and is apportioned no part of the
fee therefrom; and
(3) written notice is promptly given to any
affected former client to enable it to
ascertain compliance with the provisions of
this Rule.
RPC 1.11 and RPC 1.9 clearly prohibit Santiago from having any
involvement in the prosecution of defendant. RPC 1.10 addresses imputing
conflicts among lawyers in a private law firm. It does not expressly address
government lawyers, such as prosecutors. The question then becomes whether
the imputation in RPC 1.10 should be applied to a prosecutor, and in particular
to a county prosecutor who oversees the county prosecutor's office.
No New Jersey case has expressly addressed whether the personal conflict
of a county prosecutor should be imputed to the entire county prosecutor's office.
Existing New Jersey caselaw makes clear that requests for disqualification of an
entire prosecutor's office should be scrutinized and have rarely been granted.
See State v. Harvey, 176 N.J. 522, 529-33 (2003) (reversing a trial court order
disqualifying a prosecutor's office from handling a petition for post-conviction
relief based on allegations of prosecutorial misconduct, primarily concerning
one prosecutor); State v. Marshall, 123 N.J. 1, 176-78 (1991), cert. denied, 507
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U.S. 929 (1993) (declining to disqualify a prosecutor's office based on a claim
that the office had an "interest in vindicating its management of the discovery
file" in a prior related case); State v. Irizarry, 271 N.J. Super. 577, 591, 601
(App. Div. 1994) (holding that an entire prosecutor's office need not be
disqualified where some members of the office were familiar with immunized
testimony or could be called as witnesses); see also State v. Marshall, 148 N.J.
89, 285, cert. denied, 522 U.S. 850 (1997) (declining to disqualify Attorney
General from representing the State where the Director of the Division of
Criminal Justice was First Assistant Prosecutor at the time of remand and
defendant alleged prosecutorial misconduct). Thus, whether a prosecutor's
personal conflict should be imputed to the entire county prosecutor's office is a
question of first impression in New Jersey. Accordingly, we consider how other
jurisdictions have addressed this issue.
Several states have adopted a per se rule of disqualifying the entire office
where a member of the prosecutor's office previously represented a defendant in
the same or a related matter. Many states that have employed this approach
reason that a per se rule is required because it eliminates any appearance of
impropriety and preserves public confidence in the criminal justice system. See
State v. Nickels, 456 P.3d 795, 800 (Wash. 2020) (holding that where the county
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prosecutor previously represented the defendant, "office-wide
disqualification—not screening—is required to preserve the appearance of a just
proceeding and the public's confidence in the impartial administration of
justice"); People v. Stevens, 642 P.2d 39, 41 (Colo. App. 1981) (disqualifying
entire prosecutor's office after attorney who formerly represented the defendant
became employed by prosecutor's office, and noting that "[t]he most compelling
rationale for requiring the appointment of a special prosecutor is avoidance of
the appearance of impropriety"); see also State v. Ross, 829 S.W.2d 948, 951
(Mo. 1992) (holding that where two members of law firm representing the
defendant in a suit by an assault victim also worked part-time as assistant
prosecutors, the entire prosecutor's office should be disqualified from handling
the case against the defendant because those "interconnections" created
"suspicions and appearances of impropriety").
Additionally, some states that have adopted this approach reason that the
county prosecutor's supervisory authority over assistant prosecutors necessitates
disqualification of the entire prosecutor's office. See People v. Lepe, 211 Cal.
Rptr. 432, 434-35 (Cal. Ct. App. 1985) (explaining that because deputies were
hired, evaluated, promoted, and fired by the district attorney, the court could not
"say the office can be sanitized such to assume the deputy who prosecutes the
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case will not be influenced by the considerations that bar [the district attorney]
himself from participation in the case"); State v. Tippecanoe Cnty. Ct., 432
N.E.2d 1377, 1379 (Ind. 1982) (noting that "the prosecuting attorney exercises
authority over and speaks through his deputies" in holding that disqualific ation
of the entire prosecutor's office was required).
The majority of states that have considered this issue, however, have
rejected a per se rule. Instead, most states have adopted a rule calling for
disqualification of the entire office only when the prosecutor who formerly
represented a defendant divulged confidential information to other prosecutors
or participated in the prosecution of the defendant. See, e.g., State v. Camacho,
406 S.E.2d 868, 875 (N.C. 1991); State v. McKibben, 722 P.2d 518, 526 (Kan.
1986); Young v. State, 465 A.2d 1149, 1155 (Md. 1983); State v. Pennington,
851 P.2d 494, 500 (N.M. Ct. App. 1993) (adopting majority rule in case
involving investigator who previously worked for the defendant before joining
the prosecutor's office, and holding that the ruling applied to any employee of
the prosecutor's office); see also United States v. Shah, 43 F.4th 356, 362-63 (3d
Cir. 2022) (relying on the Pennsylvania Supreme Court's Rules of Professional
Conduct in declining to disqualify entire United States Attorney's Office so long
as supervisory attorney that previously represented the defendant remained
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properly screened); United States v. Goot, 894 F.2d 231, 234-35, 237 (7th Cir.
1990) (declining to disqualify entire United States Attorney's Office where
United States Attorney previously represented the defendant and had been
properly screened); see also State v. Kinkennon, 747 N.W.2d 437, 444 (Neb.
2008) (noting that while "extreme case[s]" requiring disqualification of the
entire prosecutor's office "might exist," screening of the disqualified attorney is
generally sufficient and the entire office need not be disqualified).
In short, those states reasoned that the entire prosecutor's office need not
be disqualified if the prosecutor who had a prior relationship with the defendant
is effectively screened from participation in the prosecution and does not divulge
any confidential information. Camacho, 406 S.E.2d at 875; McKibben, 722 P.2d
at 526; Young, 465 A.2d at 1155; Pennington, 851 P.2d at 500; Kinkennon, 747
N.W.2d at 444. We note that while many states have adopted the majority rule
on this issue, only some have expressly clarified that the rule applies the same
way to the county prosecutor or district attorney as it does to other attorneys
employed by the prosecutor's office. See, e.g., Camacho, 406 S.E.2d at 875.
We believe that the majority rule is the better rule and is more consistent
with New Jersey caselaw. The RPCs treat lawyers in private practice differently
than lawyers in government service. See RPC 1.10; RPC 1.11; see also State v.
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Bell, 90 N.J. 163, 168 (1982). There are sound public policy reasons for that
distinction. Moreover, our Supreme Court has reasoned that disqualifying an
attorney or an office of attorneys based on a conflict "must have some reasonable
basis" grounded in an actual conflict. Harvey, 176 N.J. at 529 (quoting In re
Op. No. 653 of the Advisory Comm. on Pro. Ethics, 132 N.J. 124, 132 (1992)).
In that regard, in 2006, our Supreme Court decided that New Jersey would
not consider the appearance of impropriety in determining whether a lawyer has
a disqualifying conflict. See In re Sup. Ct. Advisory Comm. on Pro. Ethics Op.
No. 697, 188 N.J. 549, 568 (2006). The Court explained that the concept of the
appearance of impropriety should not be considered in determining whether a
conflict of interest exists under RPC 1.9 as its use "injects an unneeded element
of confusion." Id. at 562 n.5.
We, therefore, adopt the majority rule and conclude automatic
disqualification of the entire prosecutor's office is not required. Instead, this
rule requires disqualification of the entire prosecutor's office only where the
prosecutor was not effectively screened or has shared confidential information
he or she learned while representing the defendant. In short, our analysis of t he
law on conflicts and our consideration of the policies embodied in the RPCs
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support a rule where individual, personal conflicts of county prosecutors are not
imputed to the entire office.
Moreover, we adopt the majority rule with respect to both prior
representation by assistant county prosecutors and the county prosecutor. A
more flexible rule is particularly well-suited in New Jersey because the State
Attorney General has ultimate supervision over county prosecutors. While the
county prosecutor supervises the county office, the county prosecutors and the
county prosecutors' offices are ultimately subject to the Attorney General's
supervision and control. N.J.S.A. 52:17B-103; see also Yurick v. State, 184 N.J.
70, 79-80 (2005) (explaining the Attorney General's supervisory powers over
county prosecutors). Consequently, the Attorney General may supervise a
county prosecutor and his or her office and, where appropriate, decide to step in
and take over a prosecution. N.J.S.A 52:17B-106 to -107; Wright v. State, 169
N.J. 422, 438 (2001) (explaining that "'the Attorney General's supersedure
power appears to have been bestowed with the understanding that it was
intended to ensure the proper and efficient handling of the county prosecutors'
"criminal business"'" (quoting Coleman v. Kaye, 87 F.3d 1491, 1501 (3d Cir.
1996))). So, unlike the situations where other states have adopted a per se rule,
in New Jersey the county prosecutor is not the ultimate supervisor because that
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responsibility rests with the Attorney General. Thus, we are satisfied that the
Attorney General's supervision over county prosecutors will ensure that
complete disqualification of the entire prosecutor's office is not necessary so
long as the county prosecutor is properly screened and has no oversight of the
matter.
B. Whether the MCPO Should Be Disqualified Based on Santiago's
Prior Representation of Defendant.
Having declined to adopt the per se rule requiring disqualification of an
entire prosecutor's office, we hold that the MCPO need not be recused from
continuing to prosecute defendant and his co-defendants, provided Santiago
continues to be completely screened from the prosecution and does not share
any confidential information he learned while he represented defendant.
Santiago has been screened from this case since he began acting as county
prosecutor, and he has had no communications about this case with the MCPO
prosecutors and investigators assigned to it. Therefore, we conclude that his
prior representation of defendant in this matter does not create a conflict
requiring disqualification of the MCPO in its entirety.
C. Defendant's Other Arguments.
Given our holding that New Jersey will apply a fact-specific and personal
disqualification rule for prosecutors, defendant's remaining arguments can be
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analyzed and rejected summarily. In analyzing the rationales for the majority
and minority rules in other jurisdictions, we have effectively analyzed and
rejected defendant's principal arguments concerning the appearance of
impropriety and Santiago's role as a supervisor.
Defendant also argues that Santiago or the MCPO was obligated to obtain
defendant's and the Attorney General's Office's consent. The RPCs prohibit a
government lawyer from participating in matters "in which the lawyer
participated personally and substantially" or "had substantial responsibility"
while in private practice, or where the interests of the government agency "are
materially adverse to the interests of a private party" the lawyer represented
while in private practice, unless the lawyer obtains the affected former client's
informed consent. RPC 1.11(d)(2). The MCPO has represented that it consulted
with the Attorney General when Santiago first became Acting Monmouth
County Prosecutor and Santiago has always been screened from matters where
he had previously represented a defendant. That screening eliminates the
conflict, and thus the need to obtain defendant's consent. We see no reason to
impose a rule that would require Santiago or the MCPO to notify all defend ants
Santiago had previously represented who are now being prosecuted by the
MCPO.
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In making that ruling, we, like the trial court, accept the representations
of the MCPO. Defendant questions whether those representations should be
accepted and suggests that discovery and fact-finding on whether Santiago was
properly screened may be necessary. Absent a showing of a specific factual
concern, we reject defendant's argument because it is based on speculation.
Finally, we need not address the separation of powers issue. Defendant
pointed out that the trial court noted that the doctrine of separation of powers
supported its ruling because to require recusal of the entire MCPO would
effectively be to direct the Attorney General's Office to supersede the MCPO in
the prosecution of this matter. Given that we have held that there is no reason
to disqualify the entire MCPO, we do not reach that issue.
Affirmed.
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