STATE OF NEW JERSEY VS. TREMAINE L. ADAMS (14-12-1042 PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-1860-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TREMAINE L. ADAMS, a/k/a
TREMAINE JACKSON,
Defendant-Appellant.
__________________________
Submitted November 5, 2020 – Decided December 18, 2020
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-12-1042.
Joseph E. Krakora, Public Defender, attorney for
appellant (Durrell Wachtler Ciccia, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Tremaine L. Adams appeals from the October 5, 2018 denial
of his post-conviction relief (PCR) petition. For the reasons that follow, we
vacate the denial of his petition and remand for an evidentiary hearing.
On February 8, 2017, defendant pled guilty to an amended charge of first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4. He admitted to fatally
shooting his victim, Ismail Walker, with a .38 caliber handgun. Based on his
plea bargain, defendant avoided a potential life sentence on his existing charge
of first-degree murder, N.J.S.A. 2C:11-3(a). Also, defendant's weapons charges
were dismissed in exchange for his plea. Subsequently, the judge imposed a
sixteen-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2, and ordered defendant to pay restitution, in addition to the standard
penalties and fines.
Defendant filed an excessive sentence appeal pursuant to Rule 2:9-11. In
March 2017, he timely moved for PCR relief, but his petition was dismissed
without prejudice pending the appeal of his sentence. We affirmed defendant's
sentence in February 2018, satisfied "the sentence [was] not manifestly
excessive or unduly punitive and [did] not constitute an abuse of discretion." In
March 2018, defendant refiled his PCR petition.
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Defendant's PCR petition alleged he received ineffective assistance of
counsel. He contended his first attorney had a conflict of interest because the
attorney failed to disclose he was married to an employee of the Passaic County
Prosecutor's Office, the office prosecuting him. In fact, the wife of defendant's
first counsel was an assistant prosecutor in that office.
Additionally, defendant claimed in his PCR petition that his first attorney
lost interest in his case, due to the lack of fee payments, and directed another
attorney from the same firm to handle defendant's plea and sentence. Defendant
also contended he was not guilty of first-degree aggravated manslaughter and
would not have pled guilty to this charge if he had effective assistance of
counsel. In support of his argument, he submitted a one-paragraph certification
dated May 24, 2017, from his co-defendant, Neil Morrison. In part, Morrison's
certification stated:
Tremaine Adams on the day that Ismail Walker died
never conspired with me or influenced me to commit
any acts that would have contributed to the death of
Ismail Walker. Any acts that I have plead guilty to,
concerning the death of Ismail Walker were purely the
result of my own action . . . . [Defendant] is innocent of
any conspiracy, murder, attempted murder, and I, Neil
Morrison . . . acted alone in the case of Ismail Walker.
Morrison's certification provided no further details about his involvement in
Walker's death.
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Defendant was present during oral argument of his PCR petition. PCR
counsel stated defendant "felt pressure to accept the plea because he didn't feel
his attorney was working with him anymore." She added that defendant
provided her "with a certification . . . from Mr. Morrison, where Mr. Morrison
is taking responsibility for the crimes. He's saying he tried to tell both attorneys
that, but neither one of them did anything about it, so he’s arguing that he did
not commit these crimes."
After oral argument, the judge reserved decision and directed the parties
to return on October 5, 2018. Defendant was not produced for the October 5
hearing, so the judge offered to adjourn the matter. PCR counsel acknowledged
defendant's absence but noted the parties already had presented their arguments,
and defendant wished to have a decision. Accordingly, counsel waived
defendant's appearance. The judge rendered an oral decision without conducting
further argument.
The PCR judge first referred to the plea transcript to address defendant's
conflict-of-interest argument. The judge confirmed that before defendant
provided a factual basis for his plea, plea counsel advised the trial court that the
wife of defendant's first attorney
works in the Prosecutor's Office and [prior counsel]
believes that he mentioned that to [defendant] in the
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4
past, but he doesn't believe that was placed on the
record, but he believes that it's important to put on the
record that . . . his wife does work in the Prosecutor's
Office, in the DV Unit, if I'm not mistaken.
There's no contact or discussion about this particular
case or any other case, for that matter, but [defendant]
is aware of that and there is no conflict. If you believe
there is some conflict, then he waives any other such
conflict, but he doesn't believe there's a conflict.
Additionally, the PCR judge reminded defense counsel that before he
accepted defendant's plea, he asked defendant if he had any problem with his
attorneys' office "continuing with their representation," and defendant
responded, "No. Not at all." The judge further confirmed that at the plea
hearing, defendant testified he was satisfied with his attorney's services and was
"pleading guilty to this charge because [he was] guilty of this charge." Based
on these facts, the PCR judge concluded:
even if it was the first time that day, and I don't think
that it was, that the defendant heard that his [first]
lawyer's wife worked in the Prosecutor's Office, he
clearly entered into this plea agreement voluntarily and
of his own free will. And he had plenty of time that day
to say or to ask me if he could have a few more
moments to speak with his lawyer about that issue. He
did not.
Additionally, the PCR judge determined defendant benefitted from a
"favorable plea bargain" and that neither of his prior attorneys was ineffective.
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He stated, "I don't find that different counsel would have made a difference in
this case." The judge denied defendant's PCR petition without an evidentiary
hearing.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF
COUNSEL, EVIDENTIARY HEARINGS
AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT
RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO APPEAR
FOR PROCEEDINGS HIMSELF,
INSTEAD OF SENDING A
SUBSTITUTE COUNSEL.
A-1860-18T4
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C. DEFENDANT SUBMITS THAT THIS
CASE REQUIRES AN EVIDENTIARY
HEARING TO EXPOSE THE TRUTHS
EXPRESSED IN NEIL MORRISON'S
AFFIDAVIT.
Defendant also raises the following contentions in his pro se supplemental
brief:
POINT I
THIS MATTER MUST BE REMANDED FOR A
PLENARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE THAT
DEFENSE COUNSEL'S FAILURE TO ADVISE
PETITIONER THAT HIS WIFE WAS AN
ASSISTAN[T] PROSECUTOR WITHIN THE
PASSAIC COUNTY PROSECUTOR'S OFFICE
CONSTITUTED A CONFLICT OF INTEREST.
POINT II
A CONFLICT OF INTEREST BETWEEN DEFENSE
COUNSEL AND HIS WIFE - A PROSECUTING
ATTORNEY OF THE PASSAIC COUNTY
PROSECUTOR'S OFFICE - DEPRIVED
DEFENDANT OF EFFECTIVE ASSISTANCE OF
COUNSEL.
POINT III
THE PCR COURT ERRED IN REFUSING TO SET
ASIDE PETITIONER'S CONVICTION ON THE
BASIS OF CLEARLY NEWLY DISCOVERED
EVIDENCE.
A-1860-18T4
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1. The new evidence is [m]aterial to the issue of the
identity of the perpetrator of the crime and is not merely
cumulative, impeaching contradictory.
2. The new evidence was discovered after the plea
process and was not discovered by reasonable diligence
at the time of the plea process.
3. The Affidavit of Neil Morrison would probably
change the results if a new trial were granted.
POINT IV
THE RESTITUTION IMPOSED ON DEFENDANT
MUST BE VACATED BECAUSE THE COURT
GAVE NO REASONS AND FAILED TO CONDUCT
A HEARING ON THE DEFENDANT'S ABILITY TO
PAY.
POINT V
PCR COUNSEL WAS INEFFECTIVE BY
CONDUCTING THE PCR HEARING IN
DEFENDANT'S ABSENCE.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Id. at 420 (citing McCandless v. Vaughn,
172 F.3d 255, 265 (3d Cir. 1999)). Where an evidentiary hearing has not been
held, it is within our authority "to conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." Id. at 421.
A-1860-18T4
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A trial court should grant an evidentiary hearing if a defendant establishes
a prima facie claim in support of PCR. State v. Preciose, 129 N.J. 451, 462,
(1992). When determining whether to grant an evidentiary hearing, the PCR
court must consider the facts in the light most favorable to the defendant. Id. at
462-63. The denial of an evidentiary hearing for a PCR petition is reviewed for
an abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal
proceeding the right to the assistance of counsel in his or her defense. The right
to counsel includes "the right to the effective assistance of counsel." State v.
Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S.
668, 686 (1984)).
In Strickland, the Court established a two-part test, later adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a
defendant has been deprived of the effective assistance of counsel. Strickland,
466 U.S. at 687; Fritz, 105 N.J. at 58. Under the first prong of the Strickland
standard, a petitioner must show that counsel's performance was deficient. 466
U.S. at 687. It must be demonstrated that counsel's handling of the matter "fell
A-1860-18T4
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below an objective standard of reasonableness," and that "counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687-88.
Under the second prong of the Strickland standard, a defendant "must
show that the deficient performance prejudiced the defense." Id. at 687. There
must be a "reasonable probability that, but for counsel's unprofession al errors,
the result of the proceeding would have been different." Id. at 694. "The error
committed must be so serious as to undermine the court's confidence in the jury's
verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing
Strickland, 466 U.S. at 694).
"With respect to both prongs of the Strickland test, a defendant asserting
ineffective assistance of counsel on PCR bears the burden of proving his or her
right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.
339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v.
Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either prong of the
Strickland standard requires the denial of a PCR petition. Strickland, 466 U.S.
at 700; Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. "To establish a prima facie
claim of ineffective assistance of counsel, a defendant must demonstrate the
A-1860-18T4
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reasonable likelihood of succeeding under the test set forth in Strickland."
Preciose, 129 N.J. at 463.
The federal and state constitutions afford an accused the right to the
effective assistance of counsel unhampered by any conflict of interest that
adversely affects a lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348
(1980); State v. Norman, 151 N.J. 5, 23 (1997); State v. Bellucci, 81 N.J. 531,
538 (1980). A defendant should have the undivided loyalty of his or her
attorney, State v. Sanders, 260 N.J. Super. 491, 496 (App. Div. 1992) (citing
Glasser v. United States, 315 U.S. 60, 70 (1942)), and representation
"untrammeled and unimpaired" by conflicting interests, Norman, 151 N.J. at 23
(quoting Bellucci, 81 N.J. at 538). A conflict of interest generally exists under
our Rules of Professional Conduct (RPC) if "the representation of one client will
be directly adverse to another client," or if "there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer's
responsibilities to another client, a former client, or a third person or by a
personal interest of the lawyer." RPC 1.7(a)(1) to (2) (emphasis added).
In the federal courts, the mere "possibility" of a conflict of interest "is
insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350. "In
order to establish a violation of the Sixth Amendment, a defendant who raised
A-1860-18T4
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no objection [at the trial level] must demonstrate that an actual conflict of
interest adversely affected his lawyer's performance." Id. at 348.
New Jersey courts, however, have departed from their federal counterparts
and "have exhibited a much lower tolerance for conflict-ridden representation
under the New Jersey Constitution than federal courts have under the United
States Constitution[,]" and have accordingly found that "certain attorney
conflicts render the representation per se ineffective[,]" warranting a
presumption of prejudice. State v. Cottle, 194 N.J. 449, 470 (2008) (citations
omitted). See also State v. Drisco, 355 N.J. Super. 283, 292 (App. Div. 2002)
("New Jersey's constitutional standard thus provides broader protection against
conflicts than does the Federal Constitution.").
Under New Jersey's "two-tiered approach in analyzing whether a conflict
of interest has deprived a defendant of his state constitutional right to the
effective assistance of counsel[,]" courts must first determine whether the
alleged conflict is a "per se conflict." Cottle, 194 N.J. at 467. If so, "prejudice
is presumed in the absence of a valid waiver, and the reversal of a convicti on is
mandated." Ibid. If the alleged conflict is not a per se conflict, "the potential
or actual conflict of interest must be evaluated and, if significant, a great
A-1860-18T4
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likelihood of prejudice must be shown in that particular case to establish
constitutionally defective representation of counsel." Norman, 151 N.J. at 25.
The "per se analysis is reserved for those cases in which counsel's
performance is so likely to prejudice the accused that it is tantamount to a
complete denial of counsel." State v. Savage, 120 N.J. 594, 616 (1990) (citations
omitted). See also State v. Miller, 216 N.J. 40, 70 (2013) ("[O]nly an
extraordinary deprivation of the assistance of counsel triggers a presumption of
prejudice."). For a conflict of interest to trigger a per se deprivation of the right
to counsel, there must be an "overriding concern of divided loyalties." Cottle,
194 N.J. at 467 n.8. For these reasons, our Supreme Court "has never presumed
prejudice . . . in a situation . . . in which the defendant was represented by
competent counsel with no conflict of interest." Miller, 216 N.J. at 60-61.
Courts have generally "limited the per se conflict on constitutional
grounds to cases in which 'a private attorney, or any lawyer associated with that
attorney, is involved in simultaneous dual representations of codefendants.'"
Cottle, 194 N.J. at 467 (quoting Norman, 151 N.J. at 24-25). See, e.g., State ex
rel. S.G., 175 N.J. 132, 134-35 (2003) (holding that a law firm's simultaneous
representation of a shooting suspect and the estate of the shooting victim
constituted an unwaivable conflict of interest); State v. Murray, 162 N.J. 240,
A-1860-18T4
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250 (2000) (holding that the defendant made a prima facie showing of a per se
conflict warranting an evidentiary hearing, where the attorneys for defendant
and a codefendant shared "office space and a phone number"); Bellucci, 81 N.J.
at 544 ("Whenever the same counsel -- including partners or office associates--
represents more than one [co]defendant, both the attorney and the trial court
must explain the possible consequences of joint representation to each
defendant.").
The Court has considered three factors in determining
whether a conflict per se exists or whether the conflict
is merely a potential one. The first factor pertains to
the extent to which there is ready access to confidential
information among the attorneys. []Bellucci, 81 N.J. at
541 . . . . The second factor relates to whether, and to
what extent, the attorneys share an economic interest
. . . . The third factor concerns whether, and to what
extent, public confidence in the integrity of the law
profession might be compromised or eroded by
permitting the case to proceed notwithstanding the
potential for mischief. [State v. Bell, 90 N.J. 163, 168-
69 (1982);] []Bellucci, 81 N.J. at 541-42.
[State v. Sheika,1 337 N.J. Super. 228, 245-46 (App.
Div. 200l).]
1
In Sheika, we analyzed a conflict issue through the prism of RPC 1.8, which
has since been amended. Relational conflicts now are addressed in RPC 1.7(a),
but we are satisfied the principles enunciated in Sheika stand independent of the
RPC 1.8 analysis.
A-1860-18T4
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Considering the first prong of this three-factor test, we note defendant's
plea counsel represented to defendant and the trial court that "[t]here's no contact
or discussion about this particular case or any other case, for that matter, but
[defendant] is aware of that and there is no conflict." Plea counsel did not
explain the basis for this representation. Regarding the second prong, the record
is devoid of any discussion regarding a shared "economic interest" between
defendant's first attorney and his wife. Likewise, as to the third prong, there is
insufficient information in the record to assess whether the existing relationship
between defendant's first attorney and his wife might have compromised or
eroded public confidence in the integrity of the law profession.
We decline to find a per se conflict on the facts presented here. However,
it is appropriate to remand this matter to permit further exploration of the facts
and development of the record so the PCR court can determine "the likelihood
of prejudice" to defendant emanating from the relationship between his first
attorney and that attorney's wife, recognizing the potential conflict-of-interest
issues stemming from this relationship are "myriad, complex and pose a real
potential for prejudice." Id. at 246.
It bears repeating that:
When a defense attorney is faced with a possible
conflict of interest in representing [a] client, [that
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attorney] should notify the trial court of the potential
problem at the earliest possible time. The trial court
should conduct a hearing on the record to determine
whether a conflict of interest exists. The defendant
should be present at the hearing. Depending upon the
relevant facts, the defendant should be apprised of the
potential problems and pitfalls pertaining to the
potential conflict. Specifically, counsel involved in a
potential conflict situation . . . should not proceed with
the defense without first explaining fully to the accused
the nature of the alleged contaminating relationship.
[Also, where applicable, t]he prosecution should be
required to explain how the assistant prosecutor who is
related to the defense attorney will be shielded from
having any decisionmaking ability in the case. Such
arrangements should be described in detail.
[Id. at 248.]
Here, the record is devoid of any explanation about what steps, if any,
were taken to shield the wife of defendant's first attorney from having "any
decisionmaking ability" in this case. Although the prosecutor asserted his belief
at the PCR hearing that one of the transcripts of defendant's many appearances
before the trial court would reveal a conference on the record about defendant's
waiver of any potential conflict, no such transcript was produced by the State.
Instead, we have only a hearsay statement from defendant's second attorney,
advising the trial court that the first attorney "believes that he mentioned" to
defendant that counsel's wife "works in the Prosecutor's Office."
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Under these circumstances, we are satisfied the trial court mistakenly
exercised its discretion by denying defendant's request for PCR relief without
an evidentiary hearing.
As our Supreme Court has stated:
Certain factual questions, "including those
relating to the nature and content of off-the-record
conferences between defendant and [the] trial
attorney," are critical to claims of ineffective assistance
of counsel and can "only be resolved by meticulous
analysis and weighing of factual allegations, including
assessments of credibility." These determinations are
"best made" through an evidentiary hearing.
[State v. Porter, 216 N.J. 343, 355 (2013)
(quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App.
Div. 1998))].
Although this matter is remanded for an evidentiary hearing on the
conflict issue, we recognize that in challenging his conviction, defendant does
not fully explain why he turned himself in to law enforcement in May 2014,
accompanied by his first counsel, and confessed to killing Walker. Nor does he
fully clarify why, if he knew Morrison was arrested for the same murder weeks
after defendant was arrested, defendant agreed to the State's plea offer and never
formally moved to withdraw his plea. Mindful that these and issues regarding
the alleged conflict will be explored at the evidentiary hearing, and aware the
wife of defendant's first attorney now is a sitting judge in Passaic County, we
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leave it to the discretion of the Assignment Judge to determine if the hearing
should be conducted in a venue other than Passaic County.
Regarding Neil Morrison's certification, we observe the PCR judge did
not make any findings on this issue. Further, we note defendant argues on appeal
that the content of his codefendant's certification constitutes "newly-discovered
evidence." However, during the PCR hearing, he asserted through PCR counsel
that he previously told his first attorney and plea counsel Neil Morrison was
"taking responsibility for the crimes . . . but neither one of them did anything
about it." On remand, the PCR court should address defendant's claim,
determining whether it can be resolved on the existing record or whether an
evidentiary hearing is required.
A judge may relieve a party from a final judgment for "newly discovered
evidence which would probably alter the judgment or order and which by due
diligence could not have been discovered in time to move for a new trial under
R. 4:49." R. 4:50-1(b). However, to justify a new trial, the judge must find the
evidence would likely change the result of the case if a new trial is granted.
DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009); Quick Chek Food
Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980).
A-1860-18T4
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Regarding Point IV, defendant claims for the first time on appeal that the
restitution component of his sentence must be vacated, as the sentencing judge
did not assess defendant's ability to pay same. We are not persuaded.
The record reflects that prior to defendant's plea, defense counsel
discussed a "central amount" defendant would pay. Thereafter, defendant
testified he accepted the State's demand to "make restitution for funeral expenses
and any other expenses that have arisen as a result of [his] actions." Because
defendant did not contest his responsibility for restitution during the plea
hearing or sentencing, nor, more importantly, on direct appeal, we are satisfied
his restitution argument is procedurally barred under Rule 3:22-4.
Finally, we are satisfied Point V of defendant's pro se brief requires little
comment, given our decision to remand this matter. However, we would be
remiss if we did not acknowledge the PCR judge appropriately offered to
reschedule the October 5, 2018 hearing when defendant was not produced. PCR
counsel declined the offer, noting oral argument previously was conducted and
defendant wanted a decision. Since no further argument was conducted before
the PCR judge rendered his oral decision, and defendant fails to explain how his
absence from that hearing prejudiced him, we are not persuaded defense
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counsel's decision to waive his appearance amounts to ineffective assistance of
counsel under Strickland.
Vacated in part, and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
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