STATE OF NEW JERSEY VS. THOMAS A. WALLACE (15-09-0950, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1081-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS A. WALLACE, a/k/a
WALLACE THOMAS, and
WALLACE SONNEY,
Defendant-Appellant.
Argued March 18, 2019 – Decided April 9, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No.
15-09-0950.
Michael T. Denny, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the brief).
Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Valeria Dominguez and Sara M.
Quigley, Deputy Attorney General, of counsel and on
the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Thomas A. Wallace appeals from his
convictions for all six counts charged in Burlington County Indictment No. 15-
09-0950: third-degree possession of cocaine with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and (b)(3) (count one); third-degree possession of heroin with
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count three); third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count four); third-degree
possession of oxycodone, N.J.S.A. 2C:35-10(a)(1) (count five); and third-degree
possession with intent to distribute oxycodone, N.J.S.A. 2C:35-10.5(a)(3) (count
six). He was sentenced to a seven-year prison term with a forty-two-month
parole disqualifier pursuant to N.J.S.A. 2C:43-6(f).
Defendant claims the trial judge erred by denying his request to adjourn
the trial to seek private counsel, and imposing a parole ineligibility term in
excess of the mandatory minimum. More particularly, defendant raises the
following points for our consideration:
A-1081-17T4
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POINT I
THE TRIAL COURT VIOLATED [DEFENDANT]'S
CONSTITUTIONAL RIGHTS TO THE COUNSEL
OF HIS CHOICE BY FAILING TO ENGAGE IN THE
REQUISITE INQUIRIES WHEN [DEFENDANT]
INDICATED THE DESIRE TO OBTAIN
SUBSTITUTE PRIVATE COUNSEL.
POINT II
THE IMPOSITION OF A PERIOD OF PAROLE
INELIGIBILITY UNDER N.J.S.A. 2C:43-6(f), IN
EXCESS OF THE MANDATORY MINIMUM,
VIOLATES ALLEYNE V. UNITED STATES[,570
U.S. 99 (2013)].
(Not Raised Below)
By way of pro se supplemental brief, defendant raises these alleged errors:
POINT I
THE TRIAL COURT[']S FAILURE TO GIVE ANY
CHARGE WHAT SO EVER [SIC] ON EYEWITNESS
C[ONFIDENTIAL] I[NFORMANT (C.I.)]
IDENTIFICATION TESTIMONY DEPRIVED
DEFENDANT . . . OF HIS RIGHT TO A FAIR TRIAL
ON ALL COUNTS AND CONSTITUTED PLAIN
ERROR WHERE DEFENDANT[']S IDENTITY AS
THE SOLE OWNER OF C[ONTROLLED]
D[ANGEROUS] S[UBSTANCES] WAS THE KEY
ISSUE ON ALL COUNTS[.] U.S. CONST. AMEND.
XIV; N.J. CONST. (1947). ART. I PARA. 1, 9, 10.
(NOT RAISED BELOW)
A-1081-17T4
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POINT II
THE MATTER MUST BE REMANDED FOR A NEW
TRIAL RESPECTING THE RELIABILITY OF ALL
OF THE OUT-OF-COURT IDENTIFICATIONS OF
[DEFENDANT] AS THE MAN WHO SOLD DRUGS
TO [THE] STATE['S] INFORMANT AS WELL AS
THE STATE NOT ALLOWING THE JURY TO HEAR
[THE] C.I.'S STATEMENT OF ALLEGED SALES[;]
BY NOT ALLOWING THE JURY TO KNOW THESE
SALES EXISTED THE PROCEDURES USED
VIOLATED THE ATTORNEY GENERAL
GUIDELINES AND ARE THUS PRESUMED TO BE
IMPERMISSIBLY SUGGESTIVE.
(NOT RAISED BELOW)
POINT III[1]
THE TRIAL COURT[']S ADMISSION OF
TESTIMONIAL HEARSAY FROM C.I. #1863 NON
[-]TESTIFYING WITNESS TENDING TO BOLSTER
THE IDENTIFICATION AT TRIAL DENIED
DEFENDANT HIS RIGHT TO CONFRONT THE
WITNESS AGAINST HIM AND VIOLATED N.J.R.E.
802.
POINT IV
[T]HE TRIAL COURT[']S DELIVERY OF TWO
JURY CHARGES[, WHILE] JUROR #12
ALLEGEDLY [WAS] SLEEPING[, WERE]
CHARGES WHICH RELIEVED THE
1
Points III, VI, VII, and VIII of defendant's pro se brief fail to comply with
Rule 2:6-2(a)(1), mandating citation to "the place in the record where the
opinion or ruling in question is located." Nonetheless, we consider the merits
of defendant's arguments. See State v. Kyles, 132 N.J. Super. 397, 400 (App.
Div. 1975).
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PROSECUTION OF ITS BURDEN OF PROVING
EVERY MATERIAL ELEMENT OF ALL COUNTS
INCLUDING [DEFENDANT]'S IDENTITY AS THE
DRIVER OF BOTH VEHICLES AND OWNER OF
CDS BEYOND A REASONABLE DOUBT[, WHICH]
DEPRIVED DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J
CONST. (1947). ART. I PARA. 1, 9, 10, 11.
(NOT RAISED BELOW)
POINT V
AGGREGATING SENTENCES [OF] SEVEN YEARS
MAXIMUM WITH THREE AND ONE[-]HALF
YEARS MINIMUM IMPOSED FOR THIRD DEGREE
DRUG POSSESSION CHARGES ARE
MANIFESTLY EXCESSIVE[,] UNDULY PUNITIVE
AND NOT IN CONFORMANCE WITH [THE] CODE
OF CRIMINAL JUSTICE [AND THE] EXTENDED
TERM WAS NOT REASONABLE.
(NOT RAISED BELOW)
POINT VI
THE PROSECUTOR AND TRIAL COURT'S
ADMISSION OF TESTIMONIAL HEARSAY FROM
NAMED AND UNNAMED NON-TESTIFYING
WITNESSES TENDING TO BOLSTER THE
IDENTIFICATION OF [DEFENDANT] AS THE
OWNER OF CDS DENIED DEFENDANT HIS
RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM AND VIOLATED N.J.R.E. 802 AS
WELL AS MAKING [DEFENDANT]'S CASE A
CHAPTER 33 FRUIT OF THE POISONOUS TREE
RULE.
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POINT VII
DEFENDANT INCORPORATES HEREIN ALL OF
HIS PRO[]SE ARGUMENTS FOR A NEW TRIAL
[AND] PROSECUTORIAL MISCONDUCT BEFORE
[THE] GRAND JURY VIOLATED DEFENDANT[']S
CONSTITUTIONAL RIGHTS.
POINT VIII
THE TRIAL COURT ERRED [BY] DENYING
DEFENDANT[']S MOTION TO SUPPRESS
[BECAUSE] NO PROBABLE CAUSE EXISTED
AND THE OFFICERS WERE N[O]T CREDIBLE.
We reject these arguments and affirm.
I.
We summarize the pertinent facts and procedural history. In April 2015,
defendant was arrested after a two-month investigation by the Burlington
County Prosecutor's Office's Gang, Gun and Narcotics Task Force, which was
initiated when a C.I. told police defendant "was selling crack cocaine and using
a Bonneville Pontiac to make deliveries to purchasers." Following the C.I.'s
controlled purchases of CDS from defendant, police obtained search warrants
for defendant's person, residence and Pontiac vehicle.
During the planned execution of the warrants, police observed defendant
leave his home, driving a Mazda Protégé, for which they did not have a warrant.
Police followed defendant, observed what they believed to be a drug transaction,
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and pulled over the Mazda. A K-9 unit responded to the scene and the dog
positively alerted for the presence of narcotics in the Mazda. After impounding
the car, police obtained a warrant to search it and seized, among other things, an
aerosol can containing cocaine, heroin, and oxycodone pills. Police seized
nearly $6500 from defendant's residence, including currency that matched the
serial numbers of the bills used by the C.I. during the controlled purchases.
Prior to trial, Michael Dawson, Esq., defendant's then private counsel,
filed a motion to suppress the evidence seized from the Mazda. Defendant
primarily challenged the propriety of the procedures that led to the search
warrant. Following a testimonial hearing in May 2016, the motion judge 2 denied
defendant's application.
After defendant's ensuing application for drug court was denied, Dawson
filed another motion to suppress the evidence seized from the Mazda, claiming
defendant was entitled to a Franks3 hearing. Dawson also filed a motion to
2
Following the motion judge's decision, the matter was assigned to the present
judge.
3
Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding that "where the
defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, . . . a hearing [should] be held at
the defendant's request").
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disclose the identity of the C.I. In October 2016, the trial judge denied both
motions.
Thereafter, defendant filed a motion to relieve Dawson as counsel. On
December 13, 2016, the judge granted defendant's motion, citing defendant's
"numerous disputes" and "inability to speak with Mr. Dawson." The judge
reminded defendant that the matter was scheduled for trial on February 1, 2017.
Defendant applied for the services of a public defender (PD), and his case was
assigned to John D. Cirrinicione, Esq. 4
By March 2017, defendant had requested that the PD's office substitute
Cirrinicione with another PD, but apparently defendant was informed that "it's
not the policy of [the PD's] office to simply give a client the attorney of their
[sic] choosing." Defendant then filed a motion to proceed pro se.
On March 7, 2017, the judge heard argument regarding "multiple
motions," including defendant's motion to represent himself. Cirrinicione told
the judge, defendant "wants me to do certain things that I will not do because
they violate the rules of ethics or they'll violate the rules of the courtroom, or
they will be a miscarriage of justice." The judge engaged in an extended
4
Apparently, the trial did not proceed on February 1, 2017. The reason for the
postponement is not clear from the record.
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colloquy with defendant regarding his ability to represent himself, during which
the judge rejected defendant's application to have his roommate, who is not an
attorney, as "part of [his] defense team."
The judge reserved decision on the motion, but informed defendant that if
the judge granted his motion, "the matter [wa]s going to proceed to trial. There
[was] not going to be a big delay." The court elaborated (emphasis added):
And if you come in a week before trial and say, I
just hired another attorney, you hired one on your own,
that attorney better be ready to go to trial. In other
words, you can't hold the [c]ourt on the end of a string
dangling it for a trial date. That won't happen. Right
now you have a trial date of April 11[, 2017].
On March 9, 2017, the judge summarized the State's succinct proofs and
reiterated the matter's lengthy procedural history, including defendant's
displeasure with Dawson and Cirrinicione, and defendant's "voluminous
discovery" requests. The judge then resumed his colloquy with defendant
regarding the impact of his motion to proceed pro se. Defendant responded
(emphasis added):
[A]t this time I don't feel comfortable with
[Cirrinicione] as my attorney or my standby [counsel].
And I really don't want to represent myself. And I want
to attempt to get a lawyer that's gonna help me. Now,
if I have to represent myself, then that's what I'm gonna
do. But all I ask is that the [c]ourt allows [sic] me at
the same time if . . . I'm able to receive or get another
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attorney, is that I get a minimum of [sixty] days to
prepare my defense.
And at that point . . . there will be no other
setbacks. I'll have everything prepared even if I can't
find an attorney to help me. So at that point I would
say I'd have my defense pro se prepared on top of that.
Defendant claimed he needed additional time to file another motion,
subpoena "at least [fifteen] to [twenty] officers," and observe "a jury selection
and opening statement." Absent from defendant's reasons for a two -month
continuance was any indication that he had attempted to hire private counsel or
had scheduled a meeting with private counsel to represent him in this matter.
In denying the motion, the judge explained:
Mr. Wallace, you had Mr. Dawson. He wasn't
acceptable. Now you have Mr. Cirrinicione, he's not
acceptable. And the [c]ourt has dealt with this for some
time.
This case is going to be resolved. It's not going
to be delayed. We've reached a point in time where it's
going to trial. If it goes to trial and the [c]ourt grants
your motion, Mr. Cirrinicione will be standby counsel.
He'll tell you, if you want to know, well, this is the time
you make your opening statement. He's not going to
make an opening statement for you and he's not going
to appear or be your attorney. That's not his function in
this trial.
....
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[Y]ou're coming in here, you're just complaining you
don't like your lawyers. And maybe for good reason or
bad reason, I don't know. But at some point in time the
[c]ourt gets tired of that. [The court] says the matter is
going to trial.
Defendant understood but said he did not "feel comfortable . . . at all" with
Cirrinicione as his attorney. The judge responded, "Well, the question is [,] if
you don't feel comfortable with him do you want to go it on your own or do you
want to go it with Mr. Cirrinicione? I'm giving you your choice." Defendant
then stated that he was "attempting to hire someone else[,]" to which the judge
replied:
Well, that's not your third choice. I didn't give
you three. You've got two. Now, it's one or the other
or I'm going to decide and I'm going to move the case
for trial. But dancing around, and the nonsense, and I'm
not ready, and I have this problem, and I have that
problem, and I don't have this paper, and I don't have
that paper, there comes a time when a judge puts an end
to it. This is not a complex case. The choice is yours.
If you don't want to make the decision, I'll make it for
you.
Defendant opted to proceed pro se. The judge then determined defendant "made
a knowing and intelligent waiver of his right to counsel[,]" and granted the
motion.
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On April 11, 2017, the parties appeared in court. Defendant appeared pro
se with Cirrinicione as stand-by counsel. Trial did not proceed on that date. The
judge summarized the reasons for the continuance as follows:
The [c]ourt has received from [defendant] motions t[o]
compel discovery, to suppress evidence and for
reconsideration of the [c]ourt's rulings made on March
9, 2017.
The [c]ourt has also learned that [defendant] has
been granted by the [PD]'s office at the last moment
some assistance probably with regard to transcripts,
possibly as to an expert witness and possibly as to an
investigator.
Given all of those circumstances, the [c]ourt
today reschedules this matter for trial on June 6, 2017,
to allow [defendant] the opportunity to avail himself of
whatever assistance . . . the [PD]'s office is going to
provide.
A three-day jury trial was held in June 2017. Prior to jury selection,
defendant withdrew his motion to proceed pro se, and consented to have
Cirrinicione represent him. The State presented the testimony of three
detectives, including an expert in the manufacturing and distribution of CDS;
defendant testified on his own behalf. The jurors returned a guilty verdict as to
all charges within two hours of beginning their deliberations. This appeal
followed.
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II.
A.
Defendant first argues the trial judge erroneously denied his request for
an adjournment to obtain private counsel by failing to consider and analyze the
factors listed in State v. Kates, 216 N.J. 393, 396 (2014), and State v. Furguson,
198 N.J. Super. 395, 402 (App. Div. 1985).
We commence our analysis with well-established principles, recognizing
we review the trial court's denial of an adjournment request under an abuse of
discretion standard. State v. Hayes, 205 N.J. 522, 537 (2011). "Both the United
States Constitution and our New Jersey Constitution grant defendants charged
with a criminal offense the right to have the assistance of counsel." State v.
King, 210 N.J. 2, 16 (2012). An essential element of this right is "the right of a
defendant to secure counsel of his own choice." Furguson, 198 N.J. Super. at
401. "However, the right to retain counsel of one's own choice is not absolute."
Ibid. The trial court has "wide latitude in balancing the right to counsel of choice
. . . against the demands of its calendar." United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006) (citation omitted).
"What constitutes a reasonable adjournment to permit a defendant to
retain counsel of his own choice depends generally upon the surrounding facts
A-1081-17T4
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and circumstances." Hayes, 205 N.J. at 538 (quoting Furguson, 198 N.J. Super.
at 402). The factors included in this determination are set forth in United States
v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), adopted by New Jersey courts
in Furguson, and reiterated in Kates, 216 N.J. at 396:
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.
"If 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. "Thus, we underscore that only if a
trial court summarily denies an adjournment to retain private counsel without
considering the relevant factors, or abuses its discretion in the way it analyzes
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those factors, can a deprivation of the right to choice of counsel be found." Id.
at 397. "[A] lengthy factual inquiry is [not] required." Ibid.
Here, defendant essentially contends that following the March 9, 2017
hearing, he was faced with a Hobson's choice, i.e., representing himself or
proceeding with Cirrinicione. In doing so, defendant ignores the "surrounding
facts and circumstances." See Hayes, 205 N.J. at 538. Indeed, the record
demonstrates the trial judge entertained two motions by defendant to change
counsel over the course of three months, postponing the trial date two months.
Further, on March 7, 2017, the judge clearly informed defendant that he had the
option of hiring private counsel prior to trial, provided the attorney was "ready
to go to trial." Moreover, after being advised that the PD's office was assisting
defendant with trial preparation, the judge again adjourned the trial to
accommodate defendant's request. Notably, defendant never identified any
potential private attorneys he was seeking to retain and never notified th e court
that he had retained private counsel.
Although the judge's impatience with defendant's request at the March 9,
2017 hearing is evident from the record, he did not summarily deny defendant's
request. Instead, the judge adequately undertook the required analysis of the
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appropriate factors. Accordingly, we discern no abuse of the judge's discretion
in denying defendant's request for a continuance to seek new counsel.
B.
Defendant also argues the judge's imposition of the maximum period of
parole ineligibility pursuant to N.J.S.A. 2C:43-6(b) is unconstitutional because
"judicial factfinding" deprived defendant of his Sixth Amendment right to a trial
by jury. Our Supreme Court rejected the identical argument in State v.
Kiriakakis, 235 N.J. 420, 432 (2018),5 and we find no basis to depart from that
ruling here.
To the extent defendant's pro se sentencing argument implies the judge
erred by failing to conduct a qualitative assessment of the aggravating and
mitigating factors under N.J.S.A. 2C:44-1(a) and (b), that argument is belied by
the record. The court found aggravating factors three, the risk defendant would
commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent and seriousness
of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter
defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court
did not find any mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13).
5
In their merits briefs, both parties indicated that our decision in Kiriakakis was
pending certification before the Court. Following the Court's decision, neither
party supplemented their briefs. See R. 2:6-11(d).
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Accordingly, the judge determined "the aggravating factors clearly outweigh the
[nonexistent] mitigating factors."
We therefore affirm the sentence because the trial court followed the
sentencing guidelines, its findings of fact and application of aggravating and
mitigating factors is based on competent, credible evidence, and its "application
of the guidelines to the facts" does not "shock[] the judicial conscience." State
v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
To the extent we have not specifically addressed the remaining arguments
raised in defendant's pro se supplemental brief, we conclude they lack sufficient
merit to warrant discussion in our written opinion. R. 2:11-3(e)(2).
Affirmed.
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