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SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. Raymond D. Kates (A-40-12) (070971)

(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment is 

based substantially on the reasons expressed in the opinion of the Appellate Division, which is published at 

426 N.J. Super. 32 (App. Div. 2012).)

Argued November 18, 2013 -- Decided January 14, 2014

PER CURIAM 

In this appeal, the Court considers the method by which a trial court is required to analyze a defendant’s 

request for a continuance in order to exercise his or her constitutional right to retain chosen counsel.

On the morning trial was scheduled to commence, defendant Raymond D. Kates learned that his lead trial 

counsel, Assistant Deputy Public Defender Jeffrey G. Klavens, would likely be deployed overseas during the trial. 

Kates objected, explaining that he was uncomfortable with changing attorneys midstream and felt it was unfair and 

would confuse the jury. He also was concerned that his second-chair attorney was less familiar with the case. Kates 

requested an adjournment so that he could retain his own counsel. The trial court summarily denied the request and 

proceeded with trial.

 Kates appealed, and the Appellate Division ordered a new trial, concluding that the trial court did not 

reasonably balance Kates’s desire to retain counsel of his choice against the need to proceed with a scheduled trial. 

The panel explained that the Sixth Amendment entitles a defendant to choose his own counsel, and deprivation of 

this right is a structural error which does not require a defendant to demonstrate prejudice. That being said, the right 

to counsel is not absolute and should be balanced against the court’s calendar and other issues. In order to properly 

assess a defendant’s request for a continuance to retain counsel, trial courts should consider the various factors 

outlined in State v. Ferguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985), including 

the length of the delay, the balanced convenience or inconvenience to litigants and the court, whether the defendant 

contributed to the reason for the delay, and whether and to what extent the defendant will be prejudiced. The panel 

noted that the availability of other competent counsel is not a substitute for the right to choose. Finally, deprivation 

of the right only occurs when a trial court mistakenly exercises its discretion and erroneously or arbitrarily denies a 

continuance to retain chosen counsel. The Court granted certification. 213 N.J. 45 (2013).

HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge 

Ostrer’s opinion below. Deprivation of a defendant’s right to counsel of choice is only found where, as here, a trial 

court denies an adjournment without properly considering the relevant factors or abuses its discretion in doing so.

1. Although a lengthy factual inquiry is not required, a trial court must conduct a reasoned, thoughtful analysis of 

the appropriate factors, as outlined in Ferguson, when considering a defendant’s request for an adjournment to retain 

chosen counsel. If this analysis occurs, the court can exercise its authority to deny the request without invoking 

structural error. Trial courts retain considerable latitude in balancing the appropriate factors. Deprivation of the 

right to counsel of choice is only found if a trial court summarily denies an adjournment to retain private counsel 

without considering the relevant factors, or if it abuses its discretion in the way it analyzes those factors. Here, there 

may have been reason to deny Kates’s request. However, since his request was summarily denied without analysis 

of the relevant factors, a new trial is required. (pp. 5-6)

The judgment of the Appellate Division is AFFIRMED.
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CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES 

RODRÍGUEZ and CUFF (both temporarily assigned) join in this PER CURIAM opinion.
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SUPREME COURT OF NEW JERSEY

A-40 September Term 2012

070971

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAYMOND D. KATES,

Defendant-Respondent.

Argued November 18, 2013 – Decided January 14, 2014

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 426 N.J. Super. 32 (2012).

Teresa A. Blair, Deputy Attorney General, 

argued the cause for appellant (John J. 

Hoffman, Acting Attorney General of New 

Jersey, attorney).

Lauren S. Michaels, Assistant Deputy Public 

Defender, argued the cause for respondent 

(Joseph E. Krakora, Public Defender, 

attorney).

PER CURIAM

The Appellate Division reversed defendant Raymond Kates’ 

conviction for second-degree eluding, N.J.S.A. 2C:29-2(b), and 

fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-

2(a)(2). We affirm that judgment largely for the reasons stated 

in Judge Ostrer’s opinion in State v. Kates, 426 N.J. Super. 32 

(App. Div. 2012). 
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On the morning trial was scheduled to start, defendant 

first learned that Assistant Deputy Public Defender Jeffrey G. 

Klavens would likely be deployed overseas during the trial. Id.

at 39. It appears that Klavens was to be the lead trial 

counsel; Assistant Deputy Public Defender Dionne Stanfield was

to be second-chair. Ibid. 

Defendant objected through Klavens: “he’s not comfortable 

. . . changing attorneys midstream or having the jury see me for 

part of the time and then seeing me leave for the rest of the 

time. He feels it’s not fair to him. He[] has concerns that 

the jury would be confused.” Defendant also expressed concern 

because Stanfield was “newer to the case.” As a result, Klavens 

represented to the trial court that defendant was “working now” 

and “requesting a postponement so he can hire his own attorney.” 

In response to counsel’s question -- “Is that right?” --

defendant agreed with the request for an adjournment. 

Without any further discussion or inquiry of defendant, the 

trial court stated, “I understand that request. I am denying 

that request. We are going to proceed with the trial today.”

The Appellate Division concluded that “the trial court did 

not adequately elicit facts and apply the relevant factors to 

reasonably balance defendant’s desire to retain counsel of his 

choice against the court’s need to proceed with the scheduled 

trial.” Id. at 51. The panel therefore ordered a new trial.
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The appellate court’s reasoning is ably set forth in Judge 

Ostrer’s opinion. In essence, the opinion explains that (i) the 

Sixth Amendment “entitles ‘a defendant who does not require 

appointed counsel to choose who will represent him,’” id. at 43 

(quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 

S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 417 (2006))

1; (ii) 

deprivation of the right to counsel of choice is a “structural 

error,” so defendants who demonstrate that their right has been 

violated do not have to show prejudice, id. at 44 (citing 

Gonzalez-Lopez, supra, 548 U.S. at 150, 126 S. Ct. at 2564, 165 

L. Ed. 2d at 420); (iii) a defendant’s right to counsel of 

choice “is not absolute” and may be balanced against the demands 

of the court’s calendar, among other issues, id. at 45

(citations omitted); (iv) to assess a defendant’s request for a 

continuance to retain counsel of choice, trial courts should 

consider various factors outlined in State v. Furguson, 198 N.J. 

Super. 395, 402 (App. Div.) (adopting analysis of United States 

v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 

439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)), certif. 

 

1 As the court noted, “an indigent defendant who is represented 

by appointed counsel does not enjoy a right to choose counsel.” 

Kates, supra, 426 N.J. Super. at 43 (citing State v. Williams, 

404 N.J. Super. 147, 170 (App. Div. 2008), certif. denied, 201 

N.J. 240 (2010)). The Public Defender may substitute attorneys 

within the office. See, e.g., Morris v. Slappy, 461 U.S. 1, 103 

S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
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denied, 101 N.J. 266 (1985), which guide the courts’ discretion, 

Kates, supra, 426 N.J. Super. at 46; (v) 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 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;

[Furguson, supra, 198 N.J. Super. at 402 

(quoting Burton, supra, 584 F.2d at 490-91); 

see also State v. Hayes, 205 N.J. 522, 538 

(2011) (noting that balancing of factors “is 

an intensely fact-sensitive inquiry”).];

(vi) the availability of other competent counsel, while 

relevant, “is no substitute by itself for the constitutional 

right to choose counsel,” Kates, supra, 426 N.J. Super. at 46; 

and, (vii) a deprivation of the right only occurs “when the 

court mistakenly exercises its discretion and erroneously or 

arbitrarily denies a continuance to retain chosen counsel,” id.

at 47.
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We write to emphasize certain points that the Appellate 

Division noted. 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. See State v. McLaughlin, 310 N.J. Super.

242, 260 (App. Div.), certif. denied, 156 N.J. 381 (1998);

Furguson, supra, 198 N.J. Super. at 405-06. Such an approach 

does not invoke structural error. 

Trial judges retain considerable latitude in balancing the 

appropriate factors. Hayes, supra, 205 N.J. at 537-39. They 

can weigh a defendant’s request against the need “to control 

[the court’s] calendar and the public’s interest in the orderly 

administration of justice.” Furguson, supra, 198 N.J. Super. at

402; see also Burton, supra, 584 F.2d at 490 (noting that trial 

court “is free to deny a continuance to obtain additional 

counsel if, upon evaluation of the totality of the 

circumstances, it reasonably concludes that the delay would be 

unreasonable in the context of the particular case”).

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. Structural error is not 

triggered otherwise.
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In this case, there may have been reason to deny 

defendant’s request for a continuance based on the

Burton/Furguson factors. But no analysis was conducted. We do 

not suggest that a lengthy factual inquiry is required, see

Kates, supra, 426 N.J. Super. at 53, but the summary denial of 

defendant’s request, with no consideration of the governing 

standard, amounts to error and requires a new trial. 

We therefore affirm the judgment of the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and 

PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily 

assigned) join in this per curiam opinion.
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SUPREME COURT OF NEW JERSEY

NO. A-40 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAYMOND D. KATES,

Defendant-Respondent.

DECIDED January 14, 2014

Chief Justice Rabner PRESIDING

OPINION BY Per Curiam

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 6