SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1081-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS A. WALLACE, a/k/a

WALLACE THOMAS, and 

WALLACE SONNEY,

Defendant-Appellant.

Argued March 18, 2019 – Decided April 9, 2019

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 

15-09-0950.

Michael T. Denny, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Joshua D. Sanders, Assistant 

Deputy Public Defender, of counsel and on the brief).

Valeria Dominguez, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Valeria Dominguez and Sara M. 

NOT FOR PUBLICATION WITHOUT THE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.
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Quigley, Deputy Attorney General, of counsel and on 

the briefs). 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Thomas A. Wallace appeals from his 

convictions for all six counts charged in Burlington County Indictment No. 15-

09-0950: third-degree possession of cocaine with intent to distribute, N.J.S.A. 

2C:35-5(a)(1) and (b)(3) (count one); third-degree possession of heroin with 

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); third-degree 

possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count three); third-degree 

possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count four); third-degree 

possession of oxycodone, N.J.S.A. 2C:35-10(a)(1) (count five); and third-degree 

possession with intent to distribute oxycodone, N.J.S.A. 2C:35-10.5(a)(3) (count 

six). He was sentenced to a seven-year prison term with a forty-two-month 

parole disqualifier pursuant to N.J.S.A. 2C:43-6(f). 

Defendant claims the trial judge erred by denying his request to adjourn 

the trial to seek private counsel, and imposing a parole ineligibility term in 

excess of the mandatory minimum. More particularly, defendant raises the 

following points for our consideration:
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POINT I

THE TRIAL COURT VIOLATED [DEFENDANT]'S 

CONSTITUTIONAL RIGHTS TO THE COUNSEL 

OF HIS CHOICE BY FAILING TO ENGAGE IN THE 

REQUISITE INQUIRIES WHEN [DEFENDANT] 

INDICATED THE DESIRE TO OBTAIN 

SUBSTITUTE PRIVATE COUNSEL.

POINT II

THE IMPOSITION OF A PERIOD OF PAROLE 

INELIGIBILITY UNDER N.J.S.A. 2C:43-6(f), IN 

EXCESS OF THE MANDATORY MINIMUM, 

VIOLATES ALLEYNE V. UNITED STATES[,570 

U.S. 99 (2013)].

(Not Raised Below)

By way of pro se supplemental brief, defendant raises these alleged errors:

POINT I

THE TRIAL COURT[']S FAILURE TO GIVE ANY 

CHARGE WHAT SO EVER [SIC] ON EYEWITNESS 

C[ONFIDENTIAL] I[NFORMANT (C.I.)] 

IDENTIFICATION TESTIMONY DEPRIVED 

DEFENDANT . . . OF HIS RIGHT TO A FAIR TRIAL 

ON ALL COUNTS AND CONSTITUTED PLAIN 

ERROR WHERE DEFENDANT[']S IDENTITY AS 

THE SOLE OWNER OF C[ONTROLLED] 

D[ANGEROUS] S[UBSTANCES] WAS THE KEY 

ISSUE ON ALL COUNTS[.] U.S. CONST. AMEND. 

XIV; N.J. CONST. (1947). ART. I PARA. 1, 9, 10. 

(NOT RAISED BELOW)
4

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POINT II 

THE MATTER MUST BE REMANDED FOR A NEW 

TRIAL RESPECTING THE RELIABILITY OF ALL 

OF THE OUT-OF-COURT IDENTIFICATIONS OF 

[DEFENDANT] AS THE MAN WHO SOLD DRUGS 

TO [THE] STATE['S] INFORMANT AS WELL AS 

THE STATE NOT ALLOWING THE JURY TO HEAR 

[THE] C.I.'S STATEMENT OF ALLEGED SALES[;] 

BY NOT ALLOWING THE JURY TO KNOW THESE 

SALES EXISTED THE PROCEDURES USED 

VIOLATED THE ATTORNEY GENERAL 

GUIDELINES AND ARE THUS PRESUMED TO BE 

IMPERMISSIBLY SUGGESTIVE.

(NOT RAISED BELOW)

POINT III[1]

THE TRIAL COURT[']S ADMISSION OF 

TESTIMONIAL HEARSAY FROM C.I. #1863 NON

[-]TESTIFYING WITNESS TENDING TO BOLSTER 

THE IDENTIFICATION AT TRIAL DENIED 

DEFENDANT HIS RIGHT TO CONFRONT THE 

WITNESS AGAINST HIM AND VIOLATED N.J.R.E. 

802.

POINT IV 

[T]HE TRIAL COURT[']S DELIVERY OF TWO 

JURY CHARGES[, WHILE] JUROR #12 

ALLEGEDLY [WAS] SLEEPING[, WERE] 

CHARGES WHICH RELIEVED THE 

 

1 Points III, VI, VII, and VIII of defendant's pro se brief fail to comply with 

Rule 2:6-2(a)(1), mandating citation to "the place in the record where the 

opinion or ruling in question is located." Nonetheless, we consider the merits 

of defendant's arguments. See State v. Kyles, 132 N.J. Super. 397, 400 (App. 

Div. 1975).
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PROSECUTION OF ITS BURDEN OF PROVING 

EVERY MATERIAL ELEMENT OF ALL COUNTS 

INCLUDING [DEFENDANT]'S IDENTITY AS THE 

DRIVER OF BOTH VEHICLES AND OWNER OF 

CDS BEYOND A REASONABLE DOUBT[, WHICH] 

DEPRIVED DEFENDANT OF HIS RIGHT TO A 

FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J 

CONST. (1947). ART. I PARA. 1, 9, 10, 11.

(NOT RAISED BELOW)

POINT V

AGGREGATING SENTENCES [OF] SEVEN YEARS 

MAXIMUM WITH THREE AND ONE[-]HALF 

YEARS MINIMUM IMPOSED FOR THIRD DEGREE 

DRUG POSSESSION CHARGES ARE 

MANIFESTLY EXCESSIVE[,] UNDULY PUNITIVE 

AND NOT IN CONFORMANCE WITH [THE] CODE 

OF CRIMINAL JUSTICE [AND THE] EXTENDED 

TERM WAS NOT REASONABLE.

(NOT RAISED BELOW)

POINT VI

THE PROSECUTOR AND TRIAL COURT'S 

ADMISSION OF TESTIMONIAL HEARSAY FROM 

NAMED AND UNNAMED NON-TESTIFYING 

WITNESSES TENDING TO BOLSTER THE 

IDENTIFICATION OF [DEFENDANT] AS THE 

OWNER OF CDS DENIED DEFENDANT HIS 

RIGHT TO CONFRONT THE WITNESSES 

AGAINST HIM AND VIOLATED N.J.R.E. 802 AS 

WELL AS MAKING [DEFENDANT]'S CASE A 

CHAPTER 33 FRUIT OF THE POISONOUS TREE 

RULE.
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POINT VII 

DEFENDANT INCORPORATES HEREIN ALL OF 

HIS PRO[]SE ARGUMENTS FOR A NEW TRIAL 

[AND] PROSECUTORIAL MISCONDUCT BEFORE 

[THE] GRAND JURY VIOLATED DEFENDANT[']S 

CONSTITUTIONAL RIGHTS.

POINT VIII

THE TRIAL COURT ERRED [BY] DENYING 

DEFENDANT[']S MOTION TO SUPPRESS 

[BECAUSE] NO PROBABLE CAUSE EXISTED 

AND THE OFFICERS WERE N[O]T CREDIBLE.

We reject these arguments and affirm. 

I.

We summarize the pertinent facts and procedural history. In April 2015, 

defendant was arrested after a two-month investigation by the Burlington 

County Prosecutor's Office's Gang, Gun and Narcotics Task Force, which was 

initiated when a C.I. told police defendant "was selling crack cocaine and using 

a Bonneville Pontiac to make deliveries to purchasers." Following the C.I.'s 

controlled purchases of CDS from defendant, police obtained search warrants 

for defendant's person, residence and Pontiac vehicle. 

During the planned execution of the warrants, police observed defendant 

leave his home, driving a Mazda Protégé, for which they did not have a warrant. 

Police followed defendant, observed what they believed to be a drug transaction, 
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and pulled over the Mazda. A K-9 unit responded to the scene and the dog 

positively alerted for the presence of narcotics in the Mazda. After impounding 

the car, police obtained a warrant to search it and seized, among other things, an 

aerosol can containing cocaine, heroin, and oxycodone pills. Police seized 

nearly $6500 from defendant's residence, including currency that matched the 

serial numbers of the bills used by the C.I. during the controlled purchases. 

Prior to trial, Michael Dawson, Esq., defendant's then private counsel, 

filed a motion to suppress the evidence seized from the Mazda. Defendant 

primarily challenged the propriety of the procedures that led to the search 

warrant. Following a testimonial hearing in May 2016, the motion judge2 denied 

defendant's application. 

After defendant's ensuing application for drug court was denied, Dawson 

filed another motion to suppress the evidence seized from the Mazda, claiming 

defendant was entitled to a Franks3 hearing. Dawson also filed a motion to 

 

2 Following the motion judge's decision, the matter was assigned to the present 

judge.

3 Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding that "where the 

defendant makes a substantial preliminary showing that a false statement 

knowingly and intentionally, or with reckless disregard for the truth, was 

included by the affiant in the warrant affidavit, . . . a hearing [should] be held at 

the defendant's request").
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disclose the identity of the C.I. In October 2016, the trial judge denied both 

motions. 

Thereafter, defendant filed a motion to relieve Dawson as counsel. On 

December 13, 2016, the judge granted defendant's motion, citing defendant's 

"numerous disputes" and "inability to speak with Mr. Dawson." The judge 

reminded defendant that the matter was scheduled for trial on February 1, 2017. 

Defendant applied for the services of a public defender (PD), and his case was 

assigned to John D. Cirrinicione, Esq.4 

By March 2017, defendant had requested that the PD's office substitute 

Cirrinicione with another PD, but apparently defendant was informed that "it's 

not the policy of [the PD's] office to simply give a client the attorney of their 

[sic] choosing." Defendant then filed a motion to proceed pro se. 

On March 7, 2017, the judge heard argument regarding "multiple 

motions," including defendant's motion to represent himself. Cirrinicione told 

the judge, defendant "wants me to do certain things that I will not do because 

they violate the rules of ethics or they'll violate the rules of the courtroom, or 

they will be a miscarriage of justice." The judge engaged in an extended 

 

4 Apparently, the trial did not proceed on February 1, 2017. The reason for the 

postponement is not clear from the record.
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colloquy with defendant regarding his ability to represent himself, during which 

the judge rejected defendant's application to have his roommate, who is not an 

attorney, as "part of [his] defense team." 

The judge reserved decision on the motion, but informed defendant that if 

the judge granted his motion, "the matter [wa]s going to proceed to trial. There

[was] not going to be a big delay." The court elaborated (emphasis added):

And if you come in a week before trial and say, I 

just hired another attorney, you hired one on your own, 

that attorney better be ready to go to trial. In other 

words, you can't hold the [c]ourt on the end of a string 

dangling it for a trial date. That won't happen. Right 

now you have a trial date of April 11[, 2017].

On March 9, 2017, the judge summarized the State's succinct proofs and 

reiterated the matter's lengthy procedural history, including defendant's 

displeasure with Dawson and Cirrinicione, and defendant's "voluminous 

discovery" requests. The judge then resumed his colloquy with defendant 

regarding the impact of his motion to proceed pro se. Defendant responded 

(emphasis added):

[A]t this time I don't feel comfortable with 

[Cirrinicione] as my attorney or my standby [counsel]. 

And I really don't want to represent myself. And I want 

to attempt to get a lawyer that's gonna help me. Now, 

if I have to represent myself, then that's what I'm gonna 

do. But all I ask is that the [c]ourt allows [sic] me at 

the same time if . . . I'm able to receive or get another 
10 A-1081-17T4

attorney, is that I get a minimum of [sixty] days to 

prepare my defense. 

And at that point . . . there will be no other 

setbacks. I'll have everything prepared even if I can't 

find an attorney to help me. So at that point I would 

say I'd have my defense pro se prepared on top of that. 

Defendant claimed he needed additional time to file another motion, 

subpoena "at least [fifteen] to [twenty] officers," and observe "a jury selection 

and opening statement." Absent from defendant's reasons for a two-month 

continuance was any indication that he had attempted to hire private counsel or 

had scheduled a meeting with private counsel to represent him in this matter.

In denying the motion, the judge explained:

Mr. Wallace, you had Mr. Dawson. He wasn't 

acceptable. Now you have Mr. Cirrinicione, he's not 

acceptable. And the [c]ourt has dealt with this for some 

time. 

This case is going to be resolved. It's not going 

to be delayed. We've reached a point in time where it's 

going to trial. If it goes to trial and the [c]ourt grants 

your motion, Mr. Cirrinicione will be standby counsel. 

He'll tell you, if you want to know, well, this is the time 

you make your opening statement. He's not going to 

make an opening statement for you and he's not going 

to appear or be your attorney. That's not his function in 

this trial. 

. . . .
11 A-1081-17T4

[Y]ou're coming in here, you're just complaining you 

don't like your lawyers. And maybe for good reason or 

bad reason, I don't know. But at some point in time the 

[c]ourt gets tired of that. [The court] says the matter is 

going to trial. 

Defendant understood but said he did not "feel comfortable . . . at all" with 

Cirrinicione as his attorney. The judge responded, "Well, the question is[,] if 

you don't feel comfortable with him do you want to go it on your own or do you 

want to go it with Mr. Cirrinicione? I'm giving you your choice." Defendant 

then stated that he was "attempting to hire someone else[,]" to which the judge 

replied:

Well, that's not your third choice. I didn't give 

you three. You've got two. Now, it's one or the other 

or I'm going to decide and I'm going to move the case 

for trial. But dancing around, and the nonsense, and I'm 

not ready, and I have this problem, and I have that 

problem, and I don't have this paper, and I don't have 

that paper, there comes a time when a judge puts an end 

to it. This is not a complex case. The choice is yours. 

If you don't want to make the decision, I'll make it for 

you.

Defendant opted to proceed pro se. The judge then determined defendant "made 

a knowing and intelligent waiver of his right to counsel[,]" and granted the 

motion.
12 A-1081-17T4

On April 11, 2017, the parties appeared in court. Defendant appeared pro 

se with Cirrinicione as stand-by counsel. Trial did not proceed on that date. The 

judge summarized the reasons for the continuance as follows:

The [c]ourt has received from [defendant] motions t[o] 

compel discovery, to suppress evidence and for 

reconsideration of the [c]ourt's rulings made on March 

9, 2017. 

The [c]ourt has also learned that [defendant] has 

been granted by the [PD]'s office at the last moment 

some assistance probably with regard to transcripts, 

possibly as to an expert witness and possibly as to an 

investigator. 

Given all of those circumstances, the [c]ourt 

today reschedules this matter for trial on June 6, 2017,

to allow [defendant] the opportunity to avail himself of 

whatever assistance . . . the [PD]'s office is going to 

provide.

A three-day jury trial was held in June 2017. Prior to jury selection, 

defendant withdrew his motion to proceed pro se, and consented to have 

Cirrinicione represent him. The State presented the testimony of three 

detectives, including an expert in the manufacturing and distribution of CDS; 

defendant testified on his own behalf. The jurors returned a guilty verdict as to 

all charges within two hours of beginning their deliberations. This appeal 

followed. 
13 A-1081-17T4

II.

A.

Defendant first argues the trial judge erroneously denied his request for 

an adjournment to obtain private counsel by failing to consider and analyze the 

factors listed in State v. Kates, 216 N.J. 393, 396 (2014), and State v. Furguson, 

198 N.J. Super. 395, 402 (App. Div. 1985). 

We commence our analysis with well-established principles, recognizing 

we review the trial court's denial of an adjournment request under an abuse of 

discretion standard. State v. Hayes, 205 N.J. 522, 537 (2011). "Both the United 

States Constitution and our New Jersey Constitution grant defendants charged 

with a criminal offense the right to have the assistance of counsel." State v. 

King, 210 N.J. 2, 16 (2012). An essential element of this right is "the right of a 

defendant to secure counsel of his own choice." Furguson, 198 N.J. Super. at 

401. "However, the right to retain counsel of one's own choice is not absolute." 

Ibid. The trial court has "wide latitude in balancing the right to counsel of choice 

. . . against the demands of its calendar." United States v. Gonzalez-Lopez, 548 

U.S. 140, 152 (2006) (citation omitted). 

"What constitutes a reasonable adjournment to permit a defendant to 

retain counsel of his own choice depends generally upon the surrounding facts 
14 A-1081-17T4

and circumstances." Hayes, 205 N.J. at 538 (quoting Furguson, 198 N.J. Super. 

at 402). The factors included in this determination are set forth in United States 

v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), adopted by New Jersey courts 

in Furguson, and reiterated in Kates, 216 N.J. at 396:

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. 

"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." Id. at 396-97. "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
15 A-1081-17T4

those factors, can a deprivation of the right to choice of counsel be found." Id.

at 397. "[A] lengthy factual inquiry is [not] required." Ibid.

Here, defendant essentially contends that following the March 9, 2017 

hearing, he was faced with a Hobson's choice, i.e., representing himself or 

proceeding with Cirrinicione. In doing so, defendant ignores the "surrounding 

facts and circumstances." See Hayes, 205 N.J. at 538. Indeed, the record 

demonstrates the trial judge entertained two motions by defendant to change 

counsel over the course of three months, postponing the trial date two months. 

Further, on March 7, 2017, the judge clearly informed defendant that he had the 

option of hiring private counsel prior to trial, provided the attorney was "ready 

to go to trial." Moreover, after being advised that the PD's office was assisting 

defendant with trial preparation, the judge again adjourned the trial to 

accommodate defendant's request. Notably, defendant never identified any 

potential private attorneys he was seeking to retain and never notified the court 

that he had retained private counsel. 

Although the judge's impatience with defendant's request at the March 9, 

2017 hearing is evident from the record, he did not summarily deny defendant's 

request. Instead, the judge adequately undertook the required analysis of the 
16 A-1081-17T4

appropriate factors. Accordingly, we discern no abuse of the judge's discretion 

in denying defendant's request for a continuance to seek new counsel. 

B.

Defendant also argues the judge's imposition of the maximum period of 

parole ineligibility pursuant to N.J.S.A. 2C:43-6(b) is unconstitutional because 

"judicial factfinding" deprived defendant of his Sixth Amendment right to a trial 

by jury. Our Supreme Court rejected the identical argument in State v. 

Kiriakakis, 235 N.J. 420, 432 (2018),5and we find no basis to depart from that 

ruling here. 

To the extent defendant's pro se sentencing argument implies the judge 

erred by failing to conduct a qualitative assessment of the aggravating and 

mitigating factors under N.J.S.A. 2C:44-1(a) and (b), that argument is belied by 

the record. The court found aggravating factors three, the risk defendant would 

commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent and seriousness 

of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter 

defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court 

did not find any mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13). 

 

5

In their merits briefs, both parties indicated that our decision in Kiriakakis was 

pending certification before the Court. Following the Court's decision, neither 

party supplemented their briefs. See R. 2:6-11(d). 
17 A-1081-17T4

Accordingly, the judge determined "the aggravating factors clearly outweigh the 

[nonexistent] mitigating factors." 

We therefore affirm the sentence because the trial court followed the 

sentencing guidelines, its findings of fact and application of aggravating and 

mitigating factors is based on competent, credible evidence, and its "application 

of the guidelines to the facts" does not "shock[] the judicial conscience." State 

v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)). 

To the extent we have not specifically addressed the remaining arguments 

raised in defendant's pro se supplemental brief, we conclude they lack sufficient 

merit to warrant discussion in our written opinion. R. 2:11-3(e)(2). 

Affirmed.