STATE OF NEW JERSEY VS. BRYANT N. MARSH (16-04-1035 AND 16-07-1666, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3519-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYANT N. MARSH, a/k/a
BRYANT MARSHALL,
TIMOTHY MCALLISTER,
BRYANT OLIVER, and
BRYANT MARSH-
MCALLISTER,
Defendant-Appellant.
Submitted October 21, 2020 – Decided December 8, 2020
Before Judges Fuentes and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 16-04-1035
and 16-07-1666.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Mario C. Formica, Deputy First
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following denial of an eve-of-trial motion to adjourn his homicide trial,
defendant Bryant N. Marsh pled guilty to all counts charged in two Atlantic
County indictments, including murder, kidnapping, robbery, and weapons
offenses. Because the pleas were "open" the State neither made sentencing
recommendations nor signed the plea forms. Defendant reserved the right to
appeal the denial of his adjournment motion pursuant to Rule 3:9-3(f). As
memorialized in the "Supplemental Plea Form for Non-Negotiated Pleas," the
trial court agreed to sentence defendant to an aggregate prison term of thirty
years, with a thirty-year parole disqualifier under N.J.S.A. 2C:11-3(b)(1).
Following appropriate mergers, defendant was sentenced accordingly. Because
we discern no abuse of the trial court's discretion in denying defendant's
adjournment request, we affirm.
I.
We briefly summarize the pertinent facts and procedural history from the
limited record before us, accepting as true for purposes of this appeal,
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defendant's factual bases for his guilty pleas. 1 On November 29, 2015,
defendant and three cohorts robbed a stranger at gunpoint in Pleasantville.
Defendant brandished a handgun and stole money from the man. Later that day
in the same town, defendant and those companions kidnapped another man for
ransom payable in drugs. Defendant shot that man in "[h]is shoulder and his
head" with the same weapon he used against the first victim.
In April 2016, defendant and his co-defendants were charged in Atlantic
County Indictment No. 16-04-1035 regarding the robbery incident, as follows:
first-degree robbery, N.J.S.A. 2C:15-1(a) (count one); second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count two); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); second-
degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count
five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-
7(b) (count six).
1
Defendant seeks "the opportunity to withdraw his . . . [conditional ] plea[s]"
under Rule 3:9-3(f), rather than pursuant to State v. Slater, 198 N.J. 145, 150
(2009). Accordingly, on this appeal, defendant is not "assert[ing] a colorable
claim of innocence." Ibid.A-3519-18T1
3
Three months later, defendant and the same co-defendants were charged
in Atlantic County Indictment No. 16-07-1666, regarding the homicide incident,
as follows: first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one);
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two); first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 (count three); first-degree
kidnapping, N.J.S.A. 2C-13-1(a) (count four); second-degree conspiracy to
commit kidnapping, N.J.S.A. 2C:5-2 (count five); second-degree possession of
a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); second-
degree conspiracy to possess a handgun for an unlawful purpose, N.J.S.A. 2C:5-
2 (count seven); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b) (count eight); second-degree conspiracy to commit unlawful
possession of a handgun, N.J.S.A. 2C:5-2 (count nine); and second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count ten).
During the pendency of both matters, the trial court held multiple status
conferences. In January 2017, defendant was found competent to stand trial.
Thereafter, the court held eleven pretrial conferences, four case management
conferences and three case review conferences. Between September 24, 2018
and January 7, 2019, the homicide matter was scheduled for trial on four
occasions.
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In mid-afternoon on Friday, January 4, 2019, defendant moved to adjourn
the January 7, 2019 homicide trial to another unspecified date. According to
trial counsel's certification that accompanied the motion, in September 2018, the
State had indicated defendant "may have been involved in another homicide"
and there existed the possibility of a global resolution of "'30 do 30' . . . for both
matters to run concurrent[ly] with [each] []other." Thereafter, trial counsel met
with an Atlantic County Prosecutor's Office (ACPO) detective, who provided
the audio recording of a statement allegedly made by defendant "and a brief oral
synopsis" of the State's evidence against defendant in the unindicted homicide
case.
After meeting with defendant, trial counsel sought additional information
from the ACPO. Counsel was informed he "would not be given any evidence,
but could review the evidence [in the State's possession] and take notes."
Despite representations that he would be able to review the case file "[f]or a
number of weeks," trial counsel "was not given access." Finally, on December
14, 2018, counsel was advised that the ACPO was "not going to provide access
to the case file" and "the January 7, 2019 [t]rial date was a 'firm' date and there
would be no adjournments."
A-3519-18T1
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Trial counsel's adjournment request was based upon his inability to
prepare for trial between December 14, 2018 and January 4, 2019. In that
regard, counsel certified: "Upon informing [defendant] of this complete 180
[-]degree change in direction, the undersigned as well as [defendant] feel that,
especially in light of the holiday season, it would be difficult, if not impossible,
to properly prepare for a [t]rial where [defendant] is facing [l]ife [imprisonment]
plus[2] in [s]tate [p]rison." Counsel also asserted defendant did "not feel that he
[wa]s properly prepared for a [t]rial, that he was acting under the belief that a
global resolution was going to be attempted to be worked out, and that for the
State to pull the deal at the last minute is unfair to him and his [d]efense counsel,
giving them three weeks to prepare for a [t]rial wherein . . . [d]efendant is facing
life plus in prison."
Trial counsel also cited his secretary's family-sick leave, which was taken
"within the last [two] weeks" straddling counsel with "the administrative aspects
of preparing for trial." Accordingly, counsel requested "another date" for trial
so that he and defendant would have an "adequate amount of time to prepare,
especially in light of the fact that the delay was not [defendant's] fault . . . ."
2
According to the plea forms, defendant faced a maximum term of life
imprisonment plus 110 years on the homicide indictment and sixty-one years
and six months on the robbery indictment.
A-3519-18T1
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On January 7, 2019, the trial court issued a written decision, denying
defendant's motion. In doing so, the court recounted the procedural posture of
the case, listing each status conference and trial date. Rejecting defendant's
contentions that "he was unfairly prejudiced" by the protracted global plea
negotiations, the court reasoned:
[F]irst and foremost, this matter is almost [three] years
old as it relates to the date of the indictment.
[D]efendant has been scheduled for three prior trial
dates with three prior case reviews and [four] prior case
management conferences. There is no doubt, that . . .
defendant had sufficient notice to prepare for trial. The
first trial listing was [three and one-half] months before
the January 7, 2019 trial date. It was not until the
Friday afternoon before the Monday trial date that
defendant filed a motion to adjourn the trial date. This
is not only unfair to the [S]tate wh[ich] had prepared
[the] case, it is grossly unfair to the more than 120
potential jurors who were brought to the court on
Monday morning, January 7, 2019[,] to begin the voir
dire process.
Later that day, defendant pled guilty before the Criminal Division
presiding judge, who was not the trial judge. At the outset of the plea hearing,
counsel informed the judge "[a]s a housekeeping matter" defendant had moved
to adjourn the homicide trial and would "rely on the brief and certification that
was filed." The judge acknowledged the motion was preserved for appeal; the
prosecutor posed no objection. After trial counsel set forth each count of both
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indictments and the court's indication that it would sentence defendant to a term
of thirty years without parole on all counts, defendant acknowledged he was
"satisfied with [his] counsel and the plea arrangement"; he was "pleading guilty
voluntarily"; and no one had threatened or forced him to plead guilty.
Defendant was thereafter sentenced in accordance with the presiding
judge's representations during the plea hearing. This appeal followed.
The sole issue raised on appeal is whether the trial court erred in denying
defendant's adjournment motion. More particularly, defendant asserts in a
single point:
AFTER DEFENSE COUNSEL CERTIFIED THAT HE
WAS NOT PREPARED, AND THAT IT WOULD BE
"IMPOSSIBLE" FOR HIM TO REPRESENT HIS
CLIENT, THE COURT'S UNREASONABLE
DENIAL OF A TEMPORARY ADJOURNMENT
REQUIRED . . . DEFENDANT TO ENTER
CONDITIONAL PLEAS IN ORDER TO AVOID A
HOMICIDE TRIAL WITH UNPREPARED
COUNSEL. THIS COURT SHOULD REVERSE AND
REMAND TO GIVE THE DEFENDANT AN
OPPORTUNITY TO WITHDRAW HIS PLEAS.
The State counters it did not consent to defendant's conditional plea
because the prosecutor did not sign the plea forms as required under Rule 3:9-
3(f), and defendant's contentions are centered around the ineffective assistance
of trial counsel. In view of those two factors, the State contends defendant's
A-3519-18T1
8
sole remedy is vacation of his pleas and remand for trial – not the "opportunity"
to withdraw his pleas – if he is successful on this appeal. As to the merits, the
State contends the factors enumerated in State v. Hayes, 205 N.J. 522, 538
(2011), support the court's decision to deny defendant's motion to adjourn the
trial, emphasizing defendant suffered no prejudice in view of his aggregate
sentence.
II.
We review the denial of a motion for an adjournment, which involves the
court's ability to manage its own calendar, under a deferential standard. State v.
Miller, 216 N.J. 40, 65 (2013). "'[W]hether a trial court should grant or deny a
defendant's request for an adjournment . . . requires a balancing process informed
by an intensely fact-sensitive inquiry.'" Id. at 66 (quoting Hayes, 205 N.J. at
538).
Before turning to the Hayes factors applicable to the present matter, we
pause briefly to address the State's contention that defendant failed to preserve
for our review the denial of his adjournment motion. Rule 3:9-3(f) sets forth the
requirements for entering a conditional guilty plea preserving the right to appeal
an adverse determination "of any specified pretrial motion." Although the Rule
requires the State's consent, we have found tacit consent where, as here, the
A-3519-18T1
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prosecutor did not sign the plea form but "did not take exception to defense
counsel's statement that there would be [an] appeal[] made from the pretrial
motion[]." State v Matos, 273 N.J. Super. 6, 15 (App. Div. 1994). Similar to
the prosecutor in Matos, the prosecutor in the present matter neither signed the
plea form nor objected when trial counsel acknowledged the motion was
"preserved for appellate review." Accordingly, the court's order denying
defendant's motion is properly before us.
In Hayes, our Supreme Court outlined "some" factors to be weighed by
the trial judge in deciding whether to grant a defendant's motion to adjourn the
trial to retain counsel. 205 N.J. at 538. Before the trial court, defendant in the
present matter did not seek an adjournment to retain new counsel. On appeal,
however, defendant contends his attorney's lack of preparation placed defendant
"in dire straits" because he lacked both the legal training to represent himself
and sufficient time to retain another lawyer.
Accordingly, we look to the factors approved by the Court in Hayes, as
cited in Miller, to guide our analysis. Those factors include:
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
A-3519-18T1
10
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.
[Hayes, 205 N.J. at 538 (quoting State v. Furguson, 198
N.J. Super. 395, 402 (App. Div. 1985)); see also Miller,
216 N.J. at 67.]
Specifically considering an adjournment request to retain private counsel,
the Court has observed:
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.
....
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 those
factors, can a deprivation of the right to choice of
counsel be found.
[State v. Kates, 216 N.J. 393, 396-97 (2014).]
"[A] lengthy factual inquiry is [not] required." Id. at 397.
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In reviewing a trial court's discretionary determination on a defendant's
motion to adjourn, "'there are two conditions which must exist to warrant'
reversal of the conviction." Miller, 216 N.J. at 66 (quoting Hayes, 205 N.J. at
539). Initially, "'the judicial action must have been clearly unreasonable in the
light of the accompanying and surrounding circumstances.'" Ibid. (quoting
Hayes, 205 N.J. at 539). Secondly, the decision must have prejudiced the
defendant such that "'the defendant suffered manifest wrong or injury.'" Id. at
66-67 (quoting Hayes, 205 N.J. at 537).
Although the trial court in the present matter did not cite the governing
law, it implicitly considered various relevant factors outlined by the Court in
Hayes as applied to the factual and procedural posture of this case. Initially, the
court heavily weighed the age of the case, the multitude of pretrial conferences,
and three prior trial dates. Because the parties did not provide the transcripts of
the pertinent hearings, the reasons for those adjournments are unclear from the
record. Nonetheless, the parties do not dispute that the January 7 trial date was
the fourth trial date scheduled for the homicide trial.
Emphasizing the belated request by defense counsel on "the Friday
afternoon before the Monday trial date," the court also heavily weighed the
inconvenience to the State and jurors who were summoned for the January 7 ,
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2019 trial. While the trial court's conclusion is not unreasonable, because the
State did not oppose defendant's motion, the record does not disclose whether
the prosecutor or the State's witnesses would have been inconvenienced by
another trial date. Nor does the record reflect the anticipated length of the delay
or the complexity of the case, including the projected length of trial and the
number of witnesses subpoenaed to testify.
It is likewise unclear from the record whether defendant contributed to the
need for a continuance. On one hand, trial counsel certified he was unprepared
for trial; on the other, he asserted defendant "does not feel that he is properly
prepared for a [t]rial." In any event, the trial court did not specifically address
this factor.
The court rejected defendant's argument that he was unfairly prejudiced
by the State's termination of plea negotiations on the unindicted homicide
matter, implicitly finding the requested delay was not for legitimate reasons.
The record supports the court's decision. According to trial counsel's
certification, the State ceased global negotiations on December 14, 2018, yet
defendant did not request an adjournment of the January 7 trial until January 4,
2019. Underscoring that request was "the holiday season" and trial counsel's
administrative issues, both of which had transpired in the interim between the
A-3519-18T1
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failed plea negotiations and the trial date. Stated another way, trial counsel did
not advise the court of his perceived inability to prepare for trial on December
14, 2018, when the trial was three weeks away. Moreover, the matter was
pending for two years after defendant was found competent to stand trial and
had been listed for trial on three other occasions. We therefore do not disagree
with the court's determination that counsel "had sufficient notice to prepare for
trial."3
In any event, defendant failed to demonstrate prejudice here, where he
received the mandatory minimum sentence for all counts charged in both
indictments. In that regard, we reject defendant's belated argument that had trial
counsel been prepared he "could have deftly alerted a jury to weaknesses in the
State's proofs against [defendant] and won acquittals on some or all of the
charges." Defendant now claims he had "two plausible defenses that a prepared
attorney could have turned to [defendant]'s advantage," by arguing to the jury
defendant was: (1) merely present at the scene, warranting an accomplice
liability jury instruction, see Model Jury Charges (Criminal), "Liability for
3
Other Hayes factors were not relevant to the court's analysis, including
whether other competent counsel was prepared to try the matter. As indicated,
defendant did not seek the adjournment to retain another attorney or seek to
represent himself.
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Another's Conduct (N.J.S.A. 2C:2-6)" (rev. June 11, 2018); and (2) "intoxicated
on PCP and Ecstasy at the time of the offense," warranting an intoxication
instruction, see Model Jury Charges (Criminal), "Intoxication Negating an
Element of the Offense (N.J.S.A. 2C:2-8(a))" (rev. Oct. 18, 2005).
Subsumed in defendant's argument is a claim of ineffective assistance of
counsel, which is raised for the first time on this appeal, without a previously-
filed sworn statement "alleg[ing] facts sufficient to demonstrate counsel's
alleged substandard performance." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Accordingly, those claims are better reserved for post-
conviction relief where, as here, they "involve allegations and evidence that lie
outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).
Affirmed.
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