SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4004-19T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES HABEL,

Defendant-Respondent.

_________________________

Submitted November 10, 2020 – Decided

Before Judges Fisher, Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 13-06-

1087.

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for appellant (Mary R. Juliano, 

Assistant Prosecutor, of counsel and on the briefs).

Kalavruzos, Mumola, Hartman & Lento, LLC, 

attorneys for respondent (Edward C. Bertuccio, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 18, 2020
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The State appeals from an order disqualifying two assistant prosecutors 

from representing it at an evidentiary hearing on defendant's petition for postconviction relief (PCR). We reverse and vacate the order because neither 

assistant prosecutor is a necessary witness at the PCR evidentiary hearing.

I.

Defendant James Habel is the former superintendent of schools for Wall 

Township. In June 2013, a Monmouth County grand jury indicted defendant for 

fourteen crimes related to his alleged acceptance of payments for unreported 

vacation-day absences and falsifying or tampering with records related to his 

district-issued automobile.

In March 2015, a jury convicted defendant of five crimes: second-degree 

official misconduct, N.J.S.A. 2C:30-2(a); and four counts of falsifying or 

tampering with records, N.J.S.A. 2C:21-4(a). At trial, the State was represented 

by Assistant Prosecutors Melanie Falco and John Loughrey. Defendant was 

represented by Robert Honecker, Jr., who was then in private practice. From 

2003 to 2005, Honecker had served as First Assistant Prosecutor and later Acting 

Prosecutor of Monmouth County.

After the verdict, defendant retained new counsel who filed a motion for 

a new trial arguing, among other things, that Honecker had a non-waivable 
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conflict of interest because he had "switched sides" in violation of RPC 1.11. 

Specifically, defendant argued that in 2005 Honecker had been involved in 

overseeing investigations relating to the Wall school district and defendant, and 

those investigations formed the basis for the charges on which defendant was 

indicted in 2013. The trial court denied defendant's motion for a new trial,

finding that it was untimely and not supported by competent evidence.

In December 2015, defendant was sentenced to five years in prison with 

no parole eligibility. He filed a direct appeal, making eight arguments seeking 

to reverse his convictions and sentence.

Two of the arguments defendant raised on his direct appeal related to his 

contention that Honecker had a side-switching conflict of interest. Defendant 

first argued that the conflict of interest required that his conviction be reversed 

and that he was entitled to a new trial. Defendant also argued that Honecker had 

been ineffective due to the conflict of interest.

We rejected defendant's arguments and affirmed his convictions and 

sentence. State v. Habel, No. A-1473-15 (App. Div. Apr. 10, 2018). Concerning 

the alleged conflict of interest, we agreed with the trial court that defendant's 

motion for a new trial was not timely under Rule 3:20-2. We also held that the 

trial court "correctly ruled that defendant provided no competent factual 
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information establishing his right to relief" based on the alleged conflict of 

interest. Habel, slip op. at 9-10. In that regard, we noted that "no evidence 

reveals that the investigation conducted while Honecker was at the Prosecutor's 

Office had any relation to the charges for which defendant was indicted." Id. at 

12.

We also held on the direct appeal that "[t]he inclusion of Honecker on the 

'witness list' did not create a disqualifying conflict." Id. at 15. Furthermore, we 

ruled that the introduction of an email defendant sent, and on which Honecker 

was copied, did not create a disqualifying conflict. Ibid.

On the direct appeal, we did not rule on defendant's claim that Honecker 

provided ineffective assistance due to the alleged conflict of interest. Instead, 

we held that such a claim was "better suited for a post-conviction relief 

application." Id. at 16. In making that ruling, we pointed out that defendant had 

not waived his attorney-client privilege and "effectively preclud[ed] Honecker 

from providing information that may have shed more light on the conflict issue." 

Id. at 14. Our Supreme Court denied defendant's petition for certification. State 

v. Habel, 236 N.J. 558 (2019). 

In May 2019, defendant filed a petition for PCR. He argued that Honecker 

provided ineffective assistance at trial because of the side-switching conflict of
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interest. At oral argument on the petition, defendant, through counsel, 

represented for the first time that he would waive his attorney-client privilege if 

the court granted a hearing on his application. He therefore requested an 

evidentiary hearing at which Honecker could testify. 

On December 23, 2019, the PCR court issued a written opinion and order 

granting defendant's request for an evidentiary hearing. The PCR court limited 

the hearing to defendant's allegation that Honecker had a conflict of interest due 

to his prior role as First Assistant Prosecutor and Acting Prosecutor of 

Monmouth County from 2003 to 2005. 

In preparation for the evidentiary hearing, the court conducted several 

conferences with counsel. During those conferences, defendant argued that 

Falco should not be allowed to represent the State at the hearing because she 

would be a witness called by defendant. Thereafter, defendant argued that both 

Falco and Loughrey should be disqualified because both would be called as 

witnesses at the PCR hearing.

At a conference on May 18, 2020, the PCR court stated that both Falco

and Loughrey were disqualified from representing the State at the PCR hearing 

because both were potential witnesses at that hearing. The PCR court 
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memorialized that ruling in an order issued on May 22, 2020. We granted the 

State leave to appeal from the May 22, 2020 order.

II.

On appeal, the State argues that disqualifying both assistant prosecutors 

was an error and prejudiced the State. In support of that position, the State 

contends that RPC 3.7 does not apply in post-conviction proceedings and that 

the assistant prosecutors are not necessary witnesses at the PCR hearing. We 

agree with the State that neither assistant prosecutor is a necessary witness at 

the PCR hearing. Accordingly, we reverse and vacate the May 22, 2020 order.

The issue of whether to disqualify an attorney is a question of law. 

Twenty-First Century Rail Corp. v. N.J. Transit Corp., 210 N.J. 264, 274 (2012). 

Accordingly, we use a de novo standard of review. Ibid. (citing City of Atlantic 

City v. Trupos, 201 N.J. 447, 463 (2010)).

A request to disqualify an attorney involves the careful balancing of 

competing interests: the "need to maintain the highest standards of the 

profession" with the right to freely choose counsel. Comando v. Nugiel, 436 

N.J. Super. 203, 213 (App. Div. 2014) (quoting Dewey v. R.J. Reynolds Tobacco 

Co., 109 N.J. 201, 218 (1988)).
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Requests to disqualify an opponent's attorney are generally viewed with 

disfavor given "their potential abuse to secure tactical advantage." Escobar v. 

Mazie, 460 N.J. Super. 520, 526 (App. Div. 2019) (citations omitted). 

Consequently, on such a motion the initial burden of production rests with the 

moving party. Id. at 529 (citing Trupos, 201 N.J. at 462). If the burden is 

satisfied, it shifts to the attorney to demonstrate that the grounds for 

disqualification have not been met. Trupos, 201 N.J. at 463. The moving party, 

however, retains "the burden of proving that disqualification is justified." Ibid.

(citation omitted).

RPC 3.7 addresses whether a lawyer should be disqualified on grounds 

that he or she will be called as a witness. The Rule provides:

A lawyer shall not act as advocate at a trial in which the 

lawyer is likely to be a necessary witness unless: (1) 

the testimony relates to an uncontested issue; (2) the 

testimony relates to the nature and value of legal 

services rendered in the case; or (3) disqualification of 

the lawyer would work substantial hardship on the 

client.

[RPC 3.7(a).]

We need not decide whether RPC 3.7 applies to a PCR evidentiary 

hearing. Nevertheless, we note that the rationale for the rule is to avoid 

confusing a jury concerning the role of a witness with the role of an advocate at 
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trial. See Escobar, 460 N.J. Super. at 528 (considering the inherent "risk of jury 

confusion [from] trial testimony by a lawyer in the cause"); see also Kevin H. 

Michels, New Jersey Attorney Ethics 769 (2020) ("The primary danger . . . is 

that a jury may assign undue weight to the statements made by the attorney.").

Defendant here has made no showing that either assistant prosecutor is a 

necessary witness at the PCR hearing. Consistent with our opinion on the direct 

appeal, the PCR court properly limited the evidentiary hearing to the question 

of whether Honecker had a conflict of interest given his prior role as First 

Assistant and Acting Monmouth County Prosecutor. More specifically, the 

question is whether Honecker was involved in an investigation in 2003 to 2005

that later formed the basis for defendant's indictment in 2013.

Defendant has presented no evidence that Falco or Loughrey have any 

knowledge of Honecker's role in investigations in 2003 to 2005. The State has 

represented that the people with such knowledge include Honecker, former 

Assistant Prosecutor Thomas Campo, and former Detective Harry Cuttrell. 

The PCR court accepted defendant's argument that Falco and Loughrey

had knowledge concerning why the State put Honecker's name on the witness 

list at trial. Indeed, that is the reason identified by the PCR court in its order 

disqualifying Falco and Loughrey. The question of why Honecker was placed 
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on the witness list, however, has nothing to do with whether Honecker had a 

conflict of interest. Honecker's inclusion on the witness list was not related to 

his supervisory role at the Monmouth County Prosecutor's Office. Moreover, 

we have already ruled that the "inclusion of Honecker on the 'witness list' did 

not create a disqualifying conflict." Habel, slip op. at 15.

During the motion for a new trial, Falco explained that Honecker had been 

placed on the witness list because defendant had indicated he might introduce 

evidence concerning a grand jury's decision in January 2014 not to charge 

defendant with other crimes. We ruled that "Honecker's name was justifiably 

included on the witness list because of the potential defense use of no-billed

charges." Id. at 29.

Defendant also argues that Falco and Loughrey had knowledge about why 

the State introduced an email sent by defendant on April 23, 2013, which copied

Honecker. That email also has nothing to do with whether Honecker had a 

conflict of interest due to his role at the Monmouth County Prosecutor's Office 

from 2003 to 2005. The email was not drafted by Honecker and did not address

his alleged oversight of an investigation into defendant's conduct. Indeed, the 

email contained an administrative request that was sent in 2013 to a fellow Wall 
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employee. Moreover, we have ruled that the email and why it was used at trial 

are not relevant to the alleged conflict of interest. Id. at 15.

Finally, we note that defendant made no showing that it was necessary to 

disqualify both Falco and Loughrey. The State had initially offered to have 

Loughrey testify, if necessary. A necessary witness subject to disqualification

under RPC 3.7 is one whose information is unobtainable elsewhere. Escobar, 

460 N.J. Super. at 528-29 (citations omitted). Falco is not a necessary witness 

if Loughrey can provide the same information.

In summary, defendant has failed to establish that either Falco or 

Loughrey are necessary witnesses at the PCR hearing. Accordingly, the May

22, 2020 order disqualifying the two assistant prosecutors is reversed and 

vacated. The matter is remanded with the direction that Falco and Loughrey can 

represent the State at the PCR hearing and can be involved in preparations for 

that hearing.

Reversed and remanded. We do not retain jurisdiction.