SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7124-96T3
A-7268-96T1
A-7303-96T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK OLIVER,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY W. SCHMIDT,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUKE MORGAN,
Defendant-Appellant.
Argued March 16, 1999 - Decided April 13, 1999
Before Judges Long, Kestin and Carchman.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County.
Michael I. Halfacre argued the cause for appellant Mark
Oliver in A-7124-96T3.
Peter M. O'Mara argued the cause for appellants Larry
W. Schmidt in A-7268-96T1 and Luke Morgan in A-7303-96T1.
Mark P. Stalford, Assistant Prosecutor, argued the
cause for respondent in all three appeals (John Kaye,
Monmouth County Prosecutor, attorney; Mr. Stalford, of
counsel; Scott D. Leff, on the briefs).
Janice B. Venables argued the cause for respondent in
all three appeals, Borough of Spring Lake (Evans,
Osborne, Kreizman & Bonney, attorneys; Ms. Venables, of
counsel; Christine Giordano Hanlon, on the briefs).
Stephen J. Foley, Jr., argued the cause for amicus
curiae in all three appeals, Surfers' Environmental
Alliance-New Jersey (Campbell, Foley, Lee, Murphy &
Cernigliaro, attorneys; Mr. Foley, on the briefs).
The opinion of the court was delivered by
CARCHMAN, J.A.D.
During the early morning hours of July 13, 1996, the Borough
of Spring Lake fell victim to the ravages of Tropical Storm
Bertha. The storm generated sixty to seventy mile per hour winds
and high surf along the beachfront including water encroaching on
Ocean Avenue. The beaches were closed and lifeguard stands and
other equipment moved from the beach area to prevent damage
caused by the high surf. By 2:00 p.m., the wind had shifted from
the northeast to the west, and the weather began to clear. The
police chief, lifeguard captain and Borough beach manager,
accompanied by other police officers, met and determined that the
beach would be closed to the public for the rest of the day. Red
flags indicating a closed beach condition were posted along the
beach. At approximately 4:00 p.m., four individuals including
persons later identified as defendants Mark Oliver, Larry Schmidt
and Luke Morgan were observed surfboarding in the ocean near the
Mercer Avenue beach. After an extended effort to gain
defendants' attention, they came ashore and were charged with two
disorderly persons violations -- creating a hazardous or
physically dangerous condition by an act which serves no
legitimate purpose of the actor, N.J.S.A. 2C:33-2a(2), and
obstructing the administration of law, N.J.S.A. 2C:29-1a; and two
municipal violations -- Municipal Ordinance 14-2.10, authorizing
the closing of beaches, and Municipal Ordinance 14-2.1,
prohibiting bathing under certain conditions.
After a trial in the Spring Lake Municipal Court, defendants
were found guilty of N.J.S.A. 2C:33-2a(2) and Municipal Ordinance
14-2.1. The trial court merged the Municipal Ordinance 14-2.10
complaint into the Municipal Ordinance 14-2.1 conviction, and
N.J.S.A. 2C:29-1a complaint into the N.J.S.A. 2C:29-2a(2)
conviction. Defendants were sentenced to an aggregate fine of
$475 and four days of community service together with costs. On
the de novo appeal to the Law Division, defendants were found
guilty of the same offenses, and the same sentences were imposed.
Defendants appeal,See footnote 1 and we affirm.
On appeal, defendant Oliver raises the following arguments:
POINT I THE COURT'S DENIAL OF DEFENDANT'S
REQUESTED SUBSTITUTION OF ATTORNEY
DENIED THE DEFENDANT EFFECTIVE
ASSISTANCE OF COUNSEL, AND IN LIGHT OF
THE APPARENT CONFLICT OF INTEREST,
PREJUDICE TO THE DEFENDANT MUST BE
PRESUMED.
POINT II A REVIEW OF THE PROCEEDINGS BELOW
MANDATES A FINDING OF NOT GUILTY, AS THE
STATE DID NOT PROVE ALL THE ELEMENTS OF
THE OFFENSES CHARGED THAT ARE NECESSARY
TO SUSTAIN CONVICTIONS.
POINT III THE ORDINANCES OF THE BOROUGH OF SPRING
LAKE UNDER WHICH THE DEFENDANT HAS BEEN
CONVICTED ARE UNCONSTITUTIONALLY VAGUE
ON THEIR FACE.
POINT IV THE ORDINANCES OF THE BOROUGH OF SPRING
LAKE UNDER WHICH THE DEFENDANT HAS BEEN
CONVICTED ARE UNCONSTITUTIONAL AS
APPLIED.
POINT V THE MUNICIPAL COURT OF THE BOROUGH OF
SPRING LAKE LACKS TERRITORIAL
JURISDICTION OVER OFFENSES COMMITTED
BEYOND THE TERRITORIAL BOUNDARIES OF THE
BOROUGH.
POINT VI THE DEFENDANT'S CONVICTION FOR A
VIOLATION OF BOROUGH ORDINANCE 14-2.1
MUST BE REVERSED BECAUSE IT FAILS TO
PROVIDE A PENALTY CLAUSE.
Defendants Schmidt and Morgan raise the following arguments:
POINT I DISMISSAL IS WARRANTED IN THE INSTANT
CASE ON THE GROUND THAT THE ORDINANCE
WHICH [DEFENDANTS HAVE] BEEN FOUND
GUILTY OF VIOLATING IS UNCONSTITUTIONAL.
POINT II THE SPRING LAKE MUNICIPAL COURT LACKED
TERRITORIAL JURISDICTION OVER ACTS WHICH
OCCURRED BEYOND THE BOUNDARIES OF THE
TOWN.
POINT III THE STATE FAILED TO ESTABLISH THE
MUNICIPAL ORDINANCE AND CRIMINAL STATUTE
VIOLATION BEYOND A REASONABLE DOUBT,
THEREBY WARRANTING ACQUITTAL.
An analysis of defendants' positions requires an expanded
exposition of the facts adduced at the trial.
As the storm began to wane during the afternoon, Robert
Dawson, Chief of the Spring Lake Police Department (S.L.P.D.),
Daniel Finn, the beach manager, and Robert Crader, the Captain of
the lifeguards, met at approximately 2:00 p.m. to discuss the
beach conditions. Because they determined that the surf
conditions were still too dangerous - indeed the police had been
required to save one swimmer at approximately 1:30 p.m. - they
decided to keep the beaches closed for the remainder of the day,
to post red flags on all of the beaches indicating that bathing
was prohibited, and to instruct all on-duty police officers to
enforce the closure with summonses and arrests. According to
Finn, all the beaches displayed red flags by approximately 3:10
p.m.
At 4:00 p.m., Special Officer Brian Sherman of the S.L.P.D.
observed four surfers, including the three defendants, in the
ocean at the Mercer Avenue beach. Sherman parked his three-wheeled "Cushman" on the boardwalk, activated its overhead red
flashing lights and attempted to advise the surfers to come in by
standing on the boardwalk's railing while blowing his whistle and
waving his arms. Sherman was joined by Special Officer Canal,
Officer Baker, and Patrolmen Oberto, Zoino and Ploskonka, all of
the S.L.P.D. For approximately the next hour, the officers
focused their efforts on convincing defendants to exit the ocean,
but defendants never responded.
During the hour-long incident, the S.L.P.D. positioned two
Cushmans on the boardwalk with their red flashing lights
activated, and the six officers blew their whistles and waved
their arms intermittently. At the same time, a crowd of
approximately 100 people gathered on the boardwalk to watch the
spectacle. Also, at least one surfer rode a wave in and paddled
back out as an officer approached. While they were not directly
facing the shore the entire time, defendants were observed
occasionally looking at the officers on the beach. Finally, even
though one of the surfers, not a defendant here, surrendered to
the police at approximately 4:30 p.m., defendants remained in the
water for an additional half-hour. The officers concluded that
they had gained defendants' attention, but defendants chose to
ignore their efforts.
Rather than send the lifeguards into the dangerous surf to
retrieve the defendants, the police contacted the United States
Coast Guard at the Shark River Station for assistance. The Coast
Guard quickly responded to the S.L.P.D.'s call. John Foley, a
crewman on the responding vessel, observed that he could see the
police on shore and hear their whistles from his position,
approximately twenty yards farther out to sea than defendants.
Foley informed defendants that they had to exit the water, which
they then did. Defendants were then arrested by the S.L.P.D. at
approximately 5:00 p.m.
Because no one witnessed defendants actually enter the
water, it was not known whether red flags were posted when they
first entered the water. Nevertheless, a lifeguard stand was
face down at the top of the Mercer Avenue beach all day with the
sign "Life Guards Off Duty - No Bathing" clearly posted, and
there was evidence that the red flags were posted by 3:10 p.m.
While there were no actual emergencies or calls which the
S.L.P.D. or lifeguards were prevented from responding to during
the incident, the six officers and two extra lifeguards were kept
from their regular duties by the defendants' actions and were
"tied up" at the Mercer Avenue beach for at least one hour.
Judge Chaiet, in the Law Division, adopted the Municipal Court's
findings that the beach was closed, surfing was prohibited and
defendants were aware of these facts. Accordingly, defendants
were found guilty.
On appeal, defendants and Surfers' Environmental Alliance-New Jersey (SEA-NJ), as amicus curiae, challenge the
jurisdiction of the Municipal Court to consider these matters
arguing that they should properly have been heard in the Superior
Court. Defendants and SEA-NJ argue that the Public Trust
Doctrine precludes adjudication of these offenses in the
municipal court. We disagree.
Both the territorial and subject matter jurisdiction of the
municipal court are determined by the Legislature. N.J.S.A.
2B:12-16(a) grants to the municipal court territorial
jurisdiction over "cases arising within the territory of that
municipality . . . includ[ing] any premises or property located
partly in and partly outside of the municipality." In addition
to establishing territorial jurisdiction of the municipal court,
the Legislature also enabled the municipality to enact ordinances
to create subject matter jurisdiction. N.J.S.A. 40:48-1(9)
empowers municipalities to make and enforce ordinances to, among
other things, "[r]egulate or prohibit swimming or bathing in the
waters of, in, or bounding the municipality." The same statute
enables municipalities to "[e]stablish, maintain, regulate and
control a lifeguard upon any beach within or bordering on the
municipality." N.J.S.A. 40:48-1(27). N.J.S.A. 40:61-22.20
grants "[t]he governing body of any municipality bordering on the
Atlantic ocean . . . exclusive control, government and care
thereof and of any boardwalk, bathing and recreational
facilities, . . . and [it] may, by ordinance, make and enforce
rules and regulations for the government and policing of such
lands, boardwalk, bathing facilities." There can be little doubt
that the municipality may appropriately regulate activities on
the beaches and waters "bounding" the municipality.
Defendants and SEA-NJ argue that the Public Trust Doctrine
defines the territorial limits of municipal court jurisdiction.
The Public Trust Doctrine derived "from the ancient principle of
English law that land covered by tidal waters belonged to the
sovereign, but for the common use of all the people." Borough of
Neptune City v. Borough of Avon-by-the-Sea,
61 N.J. 296, 303
(1972) (setting forth a complete history of the doctrine); see
also Mathews v. Bay Head Improv. Auth.,
95 N.J. 306, cert.
denied,
469 U.S. 821,
105 S. Ct. 93,
83 L. Ed.2d 39 (1984). The
rights granted by the doctrine extend "to recreational uses,
including bathing, swimming and other shore activities." Id. at
309. The Public Trust Doctrine applies to lands seaward of the
mean high water mark which are held by the State in fee simple
for the trust of its citizens. Id. at 300.
Defendants and SEA-NJ argue that since "title" ends at the
mean high water mark, municipal court jurisdiction ends at that
same point. The argument is flawed by a misunderstanding of the
underlying premise and purpose of the doctrine. The Public Trust
Doctrine is a rule protecting property rights of the citizenry
it is not a declaration of the limits of territorial
jurisdiction. The doctrine grants rights to the public which
cannot be altered or alienated without consideration of the
public's rights in such lands. The identification of title
ownership does not resolve the issue. Property owned by the
State or any other owner (exclusive of a Federal enclave) falling
in whole or in part within the territory of the municipality is
subject to the jurisdiction of the municipal court under such
terms and conditions as the Legislature shall determine.
The right of the public to enjoy that property encompassed
by the doctrine is not inconsistent with the right of the
sovereign, as trustee, to protect those utilizing such property.
This is the essence of the government's inherent authority, if
not its obligation, to act in the interest of the public safety
and welfare, an issue we address more fully infra. See Mathews,
supra, 95 N.J. at 332; Van Ness v. Borough of Deal,
78 N.J. 174,
178 (1978) ("Of course, the municipality in the exercise of its
police power and in the interest of public health and safety,
would have the right to adopt reasonable regulations as to the
use and enjoyment of the beach area."). Such action may take the
form of the legitimate exercise of police power, for example, to
close beaches and preclude use of property, even that falling
within the Public Trust Doctrine, when the public safety and
welfare is threatened. From such authority the sovereign can
confer jurisdiction and cede regulatory authority to
municipalities and their courts. The Legislature has vested such
authority and jurisdiction in the Borough and its municipal
court. Defendants' arguments to the contrary are rejected.
We need not, on these facts, determine the outer limits of
such jurisdiction or the further relationship between the Public
Trust Doctrine and territorial jurisdiction. We are comfortable
in concluding that defendants, here, fell well within any such
limits. The Law Division found that the police officers'
entreaties to defendants could be seen and heard by defendants as
they were by the Coast Guard. Defendants were within a
legitimate zone of concern of the police and lifeguard units
entrusted with the safety of bathers, swimmers, boaters, surfers
and anyone else utilizing the recreational facilities secured and
maintained by Spring Lake. The same obligation placed on the
police and lifeguards to protect defendants dismantles
defendants' argument that their territorial obligation somehow
ends at an arbitrary line. Cf. Fleuhr v. City of Cape May,
303 N.J. Super. 481 (App. Div.) (imposing civil liability for
negligent performance of protective beach services for municipal
property but denying liability when injuries occur solely due to
conditions encountered in an unimproved body of water), certif.
granted,
152 N.J. 12 (1997).
We must next consider SEA-NJ's contention that the
jurisdictional statutes are impermissibly vague. The
constitutional doctrine of vagueness is "essentially a procedural
due process concept grounded in notions of fair play." State v.
Saunders,
302 N.J.Super. 509, 520 (App. Div.) (quoting State v.
Lashinsky,
81 N.J. 1, 17 (1979)), certif. denied,
151 N.J. 470
(1997). The Supreme Court summarized the underlying concerns as
follows:
Clear and comprehensible legislation is a
fundamental prerequisite of due process of
law, especially where criminal responsibility
is involved. Vague laws are unconstitutional
even if they fail to touch constitutionally
protected conduct, because unclear or
incomprehensible legislation places both
citizens and law enforcement officials in an
untenable position. Vague laws deprive
citizens of adequate notice of proscribed
conduct, and fail to provide officials with
guidelines sufficient to prevent arbitrary
and erratic enforcement.
[State v. Mortimer,
135 N.J. 517, 532
(quoting State v. Afanador,
134 N.J. 162, 170
(1993)), cert. denied,
513 U.S. 970,
115 S.
Ct. 440,
130 L. Ed.2d 351 (1994).]
Quite simply, therefore, "[a] criminal statute is not
impermissibly vague so long as a person of ordinary intelligence
may reasonably determine what conduct is prohibited so that he or
she may act in conformity with the law." Saunders, supra, 302
N.J. Super. at 520-21. Stated another way, the test for
vagueness hinges on whether "persons `of common intelligence must
necessarily guess at [the statute's] meaning and differ as to its
application.'" Mortimer, supra, 135 N.J. at 332 (citation
omitted). Further, analysis under this standard is not "`a
linguistic analysis conducted in a vacuum' but requires
consideration of the questioned provision itself, related
provisions, and the reality in which the provision is to be
applied." Saunders, supra, 302 N.J. Super. at 521 (citation
omitted). Finally, unless the statutory framework suggests
otherwise, "the words used in a statute carry their ordinary and
well-understood meanings." Mortimer, supra, 135 N.J. at 332
(citation omitted); see also Lashinsky, supra, 81 N.J. at 18
(adding common intelligence, coupled with ordinary human
experience, to the assessment of "vagueness"). Indeed, after
repeating this common-sense standard in Mortimer, the Supreme
Court analyzed the challenged statute by referencing Webster's
New Collegiate Dictionary to define certain terms. Mortimer,
supra, 135 N.J. at 332.
Here, SEA-NJ contends that the enabling statutes are
impermissibly vague because they fail to precisely define waters
"bounding the municipality," N.J.S.A. 40:48-1(9), beaches
"bordering on the municipality," N.J.S.A. 40:48-1(7), and the
exact meaning of "bathing facilities," N.J.S.A. 40:61-22.20.
However, we conclude these terms are sufficiently precise to
satisfy due process.
"Bounding" is defined as "[b]order[ing] on another country,
state, or place: adjoin[ing]." Webster's II New Collegiate
Dictionary 131 (1995). "Bordering" is defined as "[lying] along
or adjacent to the border of." Id. at 128. As we need not
define the outer limits of territorial jurisdiction, so, too, we
need not define the outer limits of "bounding" or "bordering" to
resolve this appeal. We previously noted that defendants were
well within the sight and sound of the lifeguards, police and on-lookers assembled on the beach and boardwalk. More
significantly, they were within what we have characterized as the
zone of concern of rescue operations so that if they were in
distress the lifeguards were able to attend to their needs. We
conclude that the Municipal Court of Spring Lake had jurisdiction
over the charged offenses.
Next, defendants and SEA-NJ contend that the municipal
ordinances under which defendants were convicted are
unconstitutional. Spring Lake Municipal Ordinance 14-2.1
provides:
Protected and Established Oceanfront Beaches.
No person or persons shall bathe upon the
oceanfront in the Borough of Spring Lake
except at certain protected and established
bathing beaches where lifeguards, boats,
flags, buoys and other protective devices are
provided.
[(Emphasis added).]
Ordinance 14.2.10 provides:
Lifeguards. Lifeguards shall be on duty at
the bathing areas between 9:00 a.m. and 6:00
p.m. daily during the bathing season. When
bathing shall be determined to be unsafe and
prohibited by the Chairman of the Beach
Committee or the Beach Manager, flags shall
be displayed and lifeguard stands shall be
turned down indicating that the beaches are
closed and unguarded.
Specifically, defendants and SEA-NJ contend that the terms
"bathe" and "bathing" are impermissibly vague; that the
ordinances are not uniformly enforced, adding to their inability
to determine whether their conduct was proscribed; and that the
ordinances fail to provide a penalty clause.
Defendants challenge the ordinances as vague both facially
and "as applied." An ordinance is facially vague if "there is no
conduct that it proscribes with sufficient certainty." Saunders,
supra, 302 N.J. Super. at 521 (citations omitted). On the other
hand, an ordinance is vague "as applied" if it does not "clearly
prohibit the conduct on which the particular charges were based."
Ibid.
Defendants' and SEA-NJ's arguments as to the definition of
"bathing" have no merit. The term "bathe" is defined, among
other ways: "[t]o become immersed in or as if in a liquid."
Webster's II New Collegiate Dictionary 94 (1995). Bathing is
something more passive than surfing or even swimming; it is in
simplest terms entering the water resulting in "immersion in
water." Defendants were surfing. As this activity necessarily
included placing one's body in the water, surfing cannot be
accomplished without a certain degree of bathing. The purpose of
the ordinance prohibiting "bathing" was not simply to stop people
from swimming; it was to preclude them from going into the water
for any purpose - swimming, surfboarding, body surfing or any
other recreational activity involving "immersion" in water.
While not a paradigm of structure or clarity, the ordinance is
obvious as to its purpose and intent - to prevent people from
entering the water when the beach is closed. Defendants'
argument that Municipal Ordinance 14-2.15See footnote 2 requires a different
result is spurious. The limitation on surfing provided for in
Ordinance 14-2.15 represents restrictive legislation focusing on
a stated set of circumstances. It is neither a limitation on the
Borough's ability to close the beaches and water to all in the
interest of public health and safety nor a license for surfers to
surf at any time they so choose.
Defendants and SEA-NJ argue that their safety in the water
should be a matter of self-determination. They argue that the
ultimate decision as to whether conditions are safe and
appropriate is theirs to make and such decision is not precluded
by the statutory scheme for beach and water regulation set forth
in the Spring Lake ordinances. Their expansive view of their
rights is distorted. The ability to regulate the beaches and
water is grounded in the public safety and welfare. The closing
of the beaches and preclusion of bathing was based on this
authority; in fact, the Borough's decision could not be
challenged in this prosecution of defendants' conduct.See footnote 3 The
entire regulatory scheme and exercise of discretionary authority
to preclude bathing and temporarily close recreational facilities
based on potential danger is a function not only of concern for
public safety but of common sense. Self-determination is not
relevant. Youthful intimations of immortality cannot serve as
the touchstone of measuring reasonable conduct. It is not the
surfers who will ultimately decide whether they can defy
indisputably reasonable public safety decisions based on weather
conditions when, in defendants' view, those conditions create the
perfect environment for their sport. And they cannot avoid the
consequences of such conduct by suggesting that an ordinance
which is clear as to content and meaning is somehow "vague."See footnote 4
Defendants contend that the State failed to prove all of the
elements of the offenses for which they were convicted. While
Schmidt and Morgan challenge their convictions under both
N.J.S.A. 2C:33-2a(2) and Ordinance 14-2.1, Oliver challenges only
his conviction under N.J.S.A. 2C:33-2a(2).
Appellate review of municipal court convictions is
"exceedingly narrow." State v. Locurto, N.J. , (1999)
(slip op. at 9). In both the Law and Appellate Divisions, the
court
must review the record in the light of the
contention, but not initially from the point
of view of how it would decide the matter if
it were the court of first instance. It
should give deference to those findings of
the trial judge which are substantially
influenced by his opportunity to hear and see
the witnesses and to have the "feel" of the
case, which a reviewing court cannot enjoy.
The aim of the review at the outset is
rather to determine whether the findings made
could reasonably have been reached on
sufficient credible evidence present in the
record.
[Ibid. (quoting State v. Johnson,
42 N.J. 146, 161-62 (1964).]
This standard of substantial deference is even more compelling
where two lower courts enter concurrent judgments on factual
issues. "Under the two-court rule, appellate courts ordinarily
should not undertake to alter concurrent findings of facts and
credibility determinations made by two lower courts absent a very
obvious and exceptional showing of error." Id. at 14-15.
The record clearly supports defendants' convictions.
N.J.S.A. 2C:33-2a(2) provides, in relevant part, "[a] person is
guilty of a petty disorderly persons offense, if with the purpose
to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof he . . . [c]reates a hazardous or
physically dangerous condition by any act which serves no
legitimate purpose of the actor." As discussed previously, the
municipal ordinance proscribes "bathing upon the oceanfront" at
closed beaches. Defendants entered the water to surf when the
beach was closed - the lifeguard stands were down and pulled back
nearly off of the beach. More egregiously, despite the hour-long
effort of at least six Spring Lake police officers, defendants
chose to ignore the officers and remain in the water until the
Coast Guard intervened. As a result of remaining in the
dangerous surf, defendants created a dangerous condition, or, at
the very least, a risk thereof, to themselves and the police and
lifeguard personnel who would have been required to save
defendants had an emergency arisen. Furthermore, defendants'
actions restricted the police's and lifeguards' activity for an
extended period of time, obstructing their ability to attend to
their normal duties. This fact was of added significance in
light of damage sustained by the Borough during the tropical
storm. There is no basis for disturbing Municipal Court Judge
Barry's and Superior Court Judge Chaiet's determinations that
defendants were well aware that the beach was closed but decided
to stay in the water to surf, disregarding the possible
repercussions to the public.
Finally, defendant Oliver contends that the denial of his
requested substitution of attorney deprived him of effective
assistance of counsel mandating a dismissal of the charges
against him or a new trial. Under both the Sixth Amendment to
the Federal Constitution and Article I, paragraph 10 of the New
Jersey Constitution, a criminal defendant has the right to
effective assistance of counsel which is "`untrammeled and
unimpaired' by conflicting interests." State v. Norman,
151 N.J. 5, 23 (1997) (quoting State v. Bellucci,
81 N.J. 531, 538 (1980)
(quoting Glasser v. United States,
315 U.S. 60, 70,
62 S. Ct. 457, 465,
86 L. Ed. 680, 699 (1942))).
In State v. Land,
73 N.J. 24 (1977), the Supreme Court
addressed whether this right to effective assistance was violated
by a single attorney's representation of multiple co-defendants
in the same trial. The Court described the problem as follows:
A conflict of interests, then, need not
necessarily consist of an obvious
inconsistency of defenses among multiple
defendants. It is quite sufficient to
constitute a fatal conflict if counsel is
precluded, because of diverging interests of
codefendants, from representing either
defendant with that degree of proficiency and
forcefulness of defense which he would
exhibit if either were his sole client.
Where an attorney is impeded from doing his
best, he is not only inadequate, but
constitutionally "ineffective."
[Id. at 31 (citations omitted).]
The Court determined that trial courts confronted by an attorney
representing multiple co-defendants should instruct the
defendants as to the potential perils of joint representation.
Naturally, such defendants would then be free to waive their
right to independent counsel if they so chose. Id. at 32-33.
Finally, the Court concluded that, "in the absence of waiver, if
a potential conflict of interest exists, prejudice will be
presumed resulting in a violation of the New Jersey
constitutional provision guaranteeing the assistance of counsel."
Id. at 35.
In State v. Bellucci,
81 N.J. 531 (1980), the Court
reiterated and strengthened the presumption created by Land:
The harm in dual representation is caused by
the restraints placed on an attorney's
advocacy and independent judgment. It is one
of divided loyalties. At its extreme, such
conflict may prevent counsel from attempting
to exonerate one client when doing so would
require him to demonstrate that another
client is guilty. The harmful effects of a
conflict of interest what counsel must
refrain from asserting will not ordinarily be
identifiable on the record. Requiring a
showing of prejudice would place an
impossible burden on the accused and force
the reviewing courts to engage in "unguided
speculation."
[Id. at 543 (citations omitted).]
The Court recognized that its rule "amounts to an absolute bar to
multiple representation unless defendants are fully advised of
the problems involved." Id. at 545; see Norman, supra, 151 N.J.
at 24-25 (noting Bellucci created rule that simultaneous dual
representation of criminal co-defendants by a private attorney or
lawyer associated with that attorney was per se potential
conflict, and prejudice would be presumed absent valid waiver).
Here, the unique facts of the offenses presented do not
suggest the necessity for application of the sweeping,
prophylactic rule of Bellucci. Cf. State v. Bell,
90 N.J. 163,
167-71 (1982) (holding multiple representation by associates in a
public defender's office does not give rise to Bellucci per se
potential conflict with presumed prejudice).
All defendants were originally represented by Peter M.
O'Mara. A short time before trial, the prosecutor indicated that
a pretrial statement by defendant Oliver, which was known to all
parties, was going to be introduced at trial.See footnote 5 In the Municipal
Court, the trial judge indicated that there was no conflict or
potential for such a conflict since he would only consider the
statement as against Oliver's interest. At the trial de novo in
the Law Division, Judge Chaiet disregarded the statement in its
entirety. Additionally, each defendant was separately charged
for offenses based on independent conduct which did not implicate
the other defendants. Their conduct was observed by nearly a
hundred onlookers.
Defendants did not deny the conduct; in fact, their
arguments were essentially legal ones ranging from the
sufficiency of the proofs to constitutionality of the ordinances
under which they were charged. Beyond Oliver's statement, which
was neither germane nor considered by Judge Chaiet in the Law
Division, defendants' interests were not divergent, and there
were no divided loyalties that prevented counsel from
representing each defendant as if he was counsel's sole client.
We note that Oliver acknowledged this much in his brief, and,
even as this issue was argued before us, defendants Morgan and
Schmidt were represented by single counsel. While a better
practice would have been served by inquiry by the Municipal Court
of defendants on the issue of dual representation, the failure to
do so here did not render their well-grounded convictions
unconstitutionally infirm.
We have considered the additional arguments raised by
defendants and SEA-NJ and conclude that they are without merit
and require no further discussion. R. 2:11-3(e)(2).
We affirm the convictions.
Footnote: 1These appeals have been consolidated for this opinion.
Footnote: 2Municipal Ordinance 14-2.15 provides:
a. No person or persons shall use
surfboards or rafts or other appliances
which might cause injury to bathers or
swimmers upon the beach or the
beachfront or in the waters adjacent
thereto without permission of the
lifeguard at the bathing area.
b. Surboard riding shall be restricted at
all times to those areas of the beach
designated either by resolution of the
Mayor and Council or by written
direction of the Beach Manager.
Footnote: 3Presumably an action to challenge the closure decision
could have been filed in the Law Division as an action in lieu of
prerogative writs. R. 4:69.
Footnote: 4In a different factual context, Justice Clifford made the
following observation:
One need not be a lawyer or wordsmith or
semanticist to understand that a statute
proscribing the volunteering of false
information to a law-enforcement officer is
violated when Denny Valentin, wanted on a
stolen vehicle charge, tells a state trooper
that his name is Ramon Velez. I do not think
the crowd down at the corner newsstand would
have nearly the trouble with this simple,
eminently sensible statute that this Court
has.
[State v. Valentin, 105 N.J. 14, 24 (1987) (Clifford, J., dissenting).] Footnote: 5The statement was made by Oliver at a meeting of the Spring Lake Borough Council in July 1996. He said, "[T]he only warning was a red flag. We figured we were going to get arrested so we decided to catch a few waves."