Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Friday, August 28, 2026

2C:12-3. Terroristic threats

 2C:12-3. Terroristic threats 

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

b. A person is guilty of a crime of the third degree if he threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out

 

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

Thursday, August 13, 2026

Internal affairs (IA) investigation could be released but a case-by-case approach is necessary to balance these legitimate and reasonable interests. State v Hubbard

 

 

STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

DEXTER L. HUBBARD, Defendant-Respondent.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

GUSTAVO ARENAS, Defendant-Respondent.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

KYANAZIA DOBSON, Defendant.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

KAHDAR HOLMES, Defendant-Respondent.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

MARCUS MORALES, Defendant.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

JAMAH GOODWIN, a/k/a JAMARSCU RUSSELL, Defendant.


STATE OF NEW JERSEY, Plaintiff-Appellant,

v.

JOSEPH PEREZ, Defendant-Respondent.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0223-25

– Decided August 5, 2026

Before Judges Currier, Smith and Jablonski.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 25-02-0111, 24-12-0898, 24-02-0071, 23-04-0311, 25-01-0065, 24-12-0864, and 24-09-0678.

The opinion of the court was delivered by JABLONSKI, J.A.D.

This appeal requires us to determine, as an issue of first impression, whether a county prosecutor must disclose substantive details about a police department's pending internal affairs ("IA") investigation to a defendant in a criminal case in which the investigating officer was involved before that investigation is completed.

By leave granted, the State appealed the trial court's order requiring it to release substantive information about pending IA investigations of officers to defense counsel, and vacating protective orders accompanying the disclosure letters the State sent to defendants as required by Giglio v. United States, 405 U.S. 150, 154 (1972), and the Off. of the Att'y Gen., Law Enf't Directive No. 2019-6, Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States (Dec. 4, 2019) (the "Directive"). Those letters summarily notified defense counsel that an officer involved in the case was the subject of an "allegation of misconduct that bears upon [that officer's] truthfulness, bias, or integrity . . . ."

We conclude the motion court mistakenly exercised its discretion by requiring disclosure of this confidential information while the IA investigations were pending. Therefore, we reverse those orders. However, because we agree with the trial court's determination to vacate the protective orders as being overly broad, we affirm those orders.

I.

In 2019, Attorney General Gurbir S. Grewal issued Directive No. 2019-6 to address and to standardize the affirmative obligation of county prosecutors to disclose exculpatory and impeachment evidence to defense counsel as required by Giglio, Brady v. Maryland, 373 U.S. 83 (1963), and State v. Carter, 91 N.J. 86 (1982). Each county prosecutor was required to implement local policies to comply with the Directive and to use a "non-exhaustive list of potential Giglio material as it relates to civilian and investigative State witnesses" when considering what specific information should be disclosed. Law Enf't Directive No. 2019-6, at 4. The Directive also explicitly noted this material, regardless of category, "does not necessarily mean the information will be disclosed." Ibid.

The categories included "sustained" findings of evidence of an "investigative employee's" dishonesty, false reporting, criminal charges or convictions, intentional mishandling of evidence, or bias. Id. at 4-6. The Directive also specifically noted disclosure must be made as to "[a]ny allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation." Id. at 5.

In its written guidelines essentially mirroring the Attorney General's directive, the Passaic County Prosecutor's Office ("PCPO") implemented a policy requiring

[d]isclosure of confidential Giglio material should only be done under [a] protective order. Examples of confidential Giglio material include: 1) when there is an allegation of misconduct against an officer that bears upon truthfulness, bias, or integrity that is the subject of a pending investigation or 2) when there is a sustained finding as to candor against an officer that is not publicly reported. To obtain a protective order, the Assistant [P]rosecutor must make an ex parte application to the court under R[ule] 3:13-3(e). This application must include both a statement to the court and a proposed form or order.

[Passaic Cnty. Prosecutor's Off., Policy and Procedures to Comply with Brady v. Maryland and Giglio v. United States 7 (rev. 2025) (emphasis in original).]

To establish "a comprehensive process to address complaints of police misconduct," the Attorney General issued the Attorney General's Internal Affairs Policy and Procedures manual ("IAPP"). Rivera v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 142 (2022). Under the IAPP, "[t]he nature and source of internal allegations, the progress of [IA] investigations, and the resulting materials are [designated as] confidential information . . . ." IAPP § 9.6.1.

In this consolidated appeal, seven defendants were separately indicted by a Passaic County Grand jury for various crimes. Each defendant, through counsel, received correspondence, termed a Giglio letter, from the PCPO notifying them that specified officers of the Paterson Police Department, who might testify at trial, were accused of "misconduct that bears upon [the officer's] truthfulness, bias, or integrity that is the subject of a pending investigation."

A protective order accompanied that letter, granted ex parte under Rule 3:13-3(e)(1) and (2) by various judges to whom these cases were assigned. Under those orders, defendants' counsel were limited to discussing the information contained in the letter only with counsel's client. Third parties, even within counsels' offices, were not permitted to have this information.

Arguing the State's "bare bones" notification of the pending investigation hampered their ability to prepare for their trials, each defendant moved to compel the State to "produce the underlying materials related to the allegation and the investigation of [the reported] misconduct." They also asked the motion court to vacate or to amend the protective order to expand the scope of those who could view the produced IA information.

Separately, one defendant, Kahdar Holmes, moved under the protocol established by our Supreme Court in Higgs, for an in camera review of "any open internal affairs complaints and their investigations" pertaining to the officer involved in Holmes's arrest. The same motion judge granted the application and ordered a "complete copy" of the officer's file to be submitted to the court for an in camera review. Consequently, Holmes's counsel was able to obtain a "significant number" of IA files pertaining to that officer under the protective order. The remaining defendants in this appeal did not take this additional step.

In a written opinion, the motion court granted defendants' motion to compel disclosure of the IA investigations and vacated each protective order. Recognizing the convergence of significant policy concerns at the "intersection of public safety, transparency, due process, and the evolving standards of criminal justice practice" this matter triggered, the motion judge framed the controversy by identifying two central issues: (1) "whether the State's current practice of providing [defendants] with only . . . generic notification[s] of . . . pending [IA] investigation[s] satisfies [its] disclosure obligations" under Giglio; and (2) "whether the protective order imposed [was] procedurally and substantively deficient."

Addressing the first inquiry, the motion court characterized the PCPO's Giglio letter as a "template" containing only basic biographic information and notification of a pending IA investigation concerning the officers' "truthfulness, bias, or integrity" without specifying the nature of the allegations, or providing any details. The court recognized no sustained findings had taken place nor had any disciplinary dispositions been reached as of the motion argument date. The court also acknowledged the State's representation that it would provide full and detailed disclosure, including supporting evidence, if the IA investigation resulted in a sustained finding.

The court interpreted the Directive to require any allegation of misconduct relating to truthfulness, bias, or integrity that was the subject of a pending investigation constituted Giglio material and required release of any materials relating to those accusations to defendants, regardless of the status of IA's investigation. The court substantiated its conclusion by finding the letter offered "no usable facts" and did not identify either the nature nor the context of the alleged misconduct. This, it found, deprived defendants of opportunities to assess the relevance of the information for investigation, to prepare for cross-examination, or to intelligently begin plea negotiations.

The motion court also found the protective order accompanying each Giglio letter was "categorical and overbroad." Holding the "[S]tate's generalized confidentiality and reputational interests [were] not enough to override the defendants' due process rights and the constitutional imperative for open discovery," the motion court found the order to be "excessively broad" and the restrictions it created could not be justified without a specific showing of harm.

We granted the State leave to appeal and it raises these issues for our consideration:

Point I

The substance of pending [IA] investigations are confidential and should not be subject to automatic discovery provisions.

A. There is no legal basis to support [the motion court]'s decision.

B. [The motion court]'s decision unduly disregarded the risk of labeling as a "Giglio" officer.

C. The existing PCPO process works in compliance with constitutional and ethical requirements.

D. A rational analysis of Directive 2019-6 stands firmly against [the motion court]'s reasoning.

E. [The motion court]'s decision is at odds with recent caselaw.

Point II

The protective orders entered by four different Superior Court Judges were appropriately tailored to prevent unnecessary disclosure of confidential information.

Point III

The State's concerns about the stigma of being a "Giglio" officer are well-founded.

Point IV

[The motion court]'s ruling creates an unworkable discovery process.

Amicus the New Jersey Attorney General supports the PCPO's position, and maintains there was no basis for the discovery of pending IA investigations, and that neither the Attorney General's Directive nor existing precedent require disclosure before any allegations were substantiated.

Defendants argued evidence from ongoing IA investigations related to an officer's truthfulness, bias, or integrity definitionally qualifies as impeachment evidence and, therefore, must be disclosed under Giglio even before the IA investigation was concluded. They assert the motion court correctly vacated the protective orders since they were overly broad and infringed on defendants' preparatory and due process rights.

In support of this position, the American Civil Liberties Union ("ACLU"), as amicus, argues defendants' rights established in Brady and Giglio set a constitutional minimum that could neither be diminished nor restricted by state law. Without additional details, the ACLU contends the PCPO's Giglio letter was constitutionally infirm, and the protective order's prohibition on sharing information within the Office of the Public Defender ("OPD") was too broad and improperly discriminated against the OPD as compared to private law firms.

II.

We defer to a trial court's decision related to pre-trial discovery and will reverse it only if we conclude the court mistakenly exercised its discretion. State v. Ramirez, 252 N.J. 277, 298 (2022). We also apply this standard to a "trial court's ruling on a motion for disclosure of privileged or confidential records . . . ." N.J. Div. of Child. Prot. & Perm. v. M.C., 456 N.J. Super. 568, 585 (App. Div. 2018). A court exercises its discretion incorrectly if it decides a matter "without a rational explanation, inexplicably depart[s] from established policies, or [rests the issue] on an impermissible basis." State v. R.Y., 242 N.J. 48, 65 (2020).

"Whether evidence is material and . . . subject to disclosure under the Brady rule is a mixed question of law and fact." State v. Marshall, 148 N.J. 89, 185 (1997). We defer to the factual findings of the court, provided they are substantiated by the record. State v. Pierre, 223 N.J. 560, 577 (2015) (quoting State v. Harris, 181 N.J. 391, 416 (2004)). Our review of a trial court's application of the Brady rule, however, is de novo. Marshall, 148 N.J. at 185.

A.

The State argues the trial court misapplied its discretion by ordering disclosure of the IA files before the underlying investigation was completed, without considering or properly balancing defendants' right to discovery against the State's confidentiality concerns. We agree.

These jurisprudential principles are fundamental and govern our analysis. Criminal defendants are afforded "broad" pre-trial discovery to "guarantee fair and just trials and promote the search for truth . . . ." State v. Morgan, 479 N.J. Super. 420, 429 (App. Div. 2024) (citing State v. Scoles, 214 N.J. 236, 251-52 (2013)). The tenor of our Court Rules reflects these tenets and, therefore, requires "an open-file approach to pretrial discovery in criminal matters post-indictment." Scoles, 214 N.J. at 252. The right to obtain discovery is not unfettered and there are limits to defendants' "automatic right to broad discovery to keep the process from 'transform[ing] . . . into an unfocused, haphazard search for evidence.'" Morgan, 479 N.J. Super. at 429 (alteration and omission in original) (quoting State v. Arteaga, 476 N.J. Super. 36, 53 (App. Div. 2023)).

Rule 3:13-3(b)(1) sets forth the State's obligations to provide both exculpatory and impeachment evidence to defendants and codifies the principles set forth by the United States Supreme Court in Brady and Giglio. Higgs, 253 N.J. at 354-55. The Brady rule is clear: "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or . . . punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87.

The Court expanded this principle in Giglio, concluding "[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule." Giglio, 405 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)) (internal quotation marks omitted). Our Supreme Court advanced this doctrine, concluding "the State's obligation to disclose is 'not limited to evidence that affirmatively tends to establish a defendant's innocence but would also include any information material and favorable to a defendant's cause even where the evidence concerns only the credibility of a State's witness.'" State v. Carter, 91 N.J. 86, 111 (1982) (quoting State v. Carter, 69 N.J. 420, 433 (1976)). Both the release of impeachment evidence and exculpatory material is encompassed by Brady's scope. State v. Hyppolite, 236 N.J. 154, 165 (2018). Prosecutors possess a special obligation to share impeachment evidence within the prosecutor's control. State v. Nash, 212 N.J. 518, 544 (2013) (citing Strickler v. Greene, 527 U.S. 263, 280 (1999)).

All aspects of IA investigations are confidential, including, specifically, "the progress of . . . [the] investigations" and "the resulting materials." IAPP § 9.6.1. Often, unsubstantiated findings, rumors, conjecture, and speculation form the basis of referrals, which an IA investigator must, nevertheless, accept and evaluate regardless of their merit. As argued by the PCPO and its amicus, premature disclosure of unsubstantiated allegations and the consequent revelation of witness identities during an IA investigation can damage reputations, hinder investigations, compromise disciplinary processes, unfairly harm officers, and potentially expose complainants to negative consequences.

Conversely, recent New Jersey jurisprudence has underscored the critical importance of transparency in law enforcement activities. See Rivera, 250 N.J. at 147 ("In general, the public has an interest in the disclosure of internal affairs reports in order to hold officers accountable, to deter misconduct, to assess whether the internal affairs process is working properly, and to foster trust in law enforcement."). Since the credibility of any testifying witness is a fundamental underpinning of the criminal trial process, the ability to obtain this critical information is important to preserve defendants' right to a fair trial and to build an effective defense as part of it. See State v. Chambers, 252 N.J. 561, 582 (2023) (noting that lack of "'access to the raw materials integral to the building of an effective defense' is fundamentally unfair") (quoting State in Int. of A.B., 219 N.J. 542, 556 (2014)).

The tension created between these two principles requires careful consideration of both parties' positions and must result in a balanced approach that satisfies both objectives.

Our Supreme Court addressed this issue in Higgs, 253 N.J. at 333.

Higgs was involved in a shooting with a police officer and sought the release of the involved officer's IA file that included prior incidents of the officer firing his weapon while on duty. Id. at 340. The Court, after reviewing the pertinent jurisprudence regarding the disclosure of evidence, concluded defendants "must be allowed, under certain circumstances, to access documents in [the officer's IA] files." Id. at 357. "This is consistent with the State's obligation to produce exculpatory and impeachment evidence . . . ." Ibid. However, this entitlement does not mean that "defendants should have unbridled access to [IA] records." Id. at 357-58.

"To appropriately balance the important interests involved," the Court developed the following procedure to permit defendants to obtain access to confidential information contained in IA files:

[A] defendant who seeks discovery of information from an [IA] file must first file a motion with the trial court requesting an in camera review of that file. The motion shall identify the specific category of information the defendant seeks and the relevance of that information to the defendant's case. A general allegation that the defendant is in search of information relevant to a law enforcement officer's credibility for impeachment purposes would be insufficient to obtain review of the file. The procedure should not be a fishing expedition into the disciplinary records of law enforcement.

[Id. at 358.]

If a trial court determines the requested information in the IA file is relevant, for whatever purpose, including impeachment, the court "shall grant the defendant's motion and conduct an in camera review of the [IA] records outside the presence of the parties." Id. at 359. The review would be "solely for the purpose of determining whether the category of identified information exists in the [IA] file." Ibid. (emphasis in original). Then, if "the trial court determines that the requested information is present in the file, both parties shall be allowed to review the relevant portion of the file, subject to any protective orders entered by the trial court." Ibid. (emphasis omitted). This would, of course, all be subject to an ultimate determination that the evidence is admissible at trial as relevant. Id. at 359-60.

We acknowledge the factual predicate in Higgs differs from that in the present case. In Higgs, the requested disclosure pertained to fact-specific evidence regarding prior shooting incidents. 253 N.J. at 340. Here, the issue involves the disclosure of circumstances that led to the designation of IA files as relevant to an officer's "truthfulness, bias, or integrity." Nonetheless, the rule and the balancing test established in Higgs is equally applicable here and permits a trial court to weigh the need to protect the confidentiality and integrity of the IA investigation process against defendants' right to obtain this information, provided they make a proper showing.

This approach is the most reasonable and equitable and aligns with common sense. Premature disclosure of unsubstantiated information undermines the trial's truth-finding function. It similarly creates significant challenges for the fact-finder, whose responsibility is to determine the truth, especially if they are presented with a range of incidents or referrals that may not have been proven, particularly when these are introduced solely to question a witness's credibility. This is particularly true since the Directive explicitly states that "[a]llegations that cannot be sustained, are not credible, or have resulted in the exoneration of an employee, including where the previous Giglio finding has either been vacated, or overturned on the merits in any subsequent action, generally are not considered to be potential impeachment information . . . ." Law Enf't Directive No. 2019-6, at 3. On balance, this approach preserves the integrity of the IA investigative process while simultaneously safeguarding the due process rights of all parties involved.

Therefore, we reverse the orders compelling disclosure of the IA materials before the investigation is concluded and any allegations are substantiated.

B.

We turn to the protective orders the motion court vacated when it ordered the release of materials related to the pending IA investigation. The State contends the various protective orders were appropriately tailored to prevent the unnecessary disclosure of confidential information. We disagree.

We agree with the court's reasoning to vacate the protective orders as overly broad, particularly the prohibition on defense counsel discussing or sharing the evidence with other OPD employees and experts. However, in light of our conclusions regarding the Giglio letters, since the consideration of pre-substantiated IA materials will be addressed on a case-specific basis through motion practice, any concerns regarding improper or proper use can be specifically addressed by the motion court under a factually-tailored protective order. Defense counsel will have the opportunity to be heard regarding the scope of the release of the Giglio material, and the trial court will determine whether the proposed use is appropriate. Consequently, the court can fashion an order with detailed and precise safeguards to mitigate or eliminate the risk of improper disclosure of sensitive information. Therefore, we affirm the orders vacating the protective orders.

In sum, given the competing confidentiality and due process concerns present in this nuanced matter, we conclude a case-by-case approach is necessary to balance these legitimate and reasonable interests.

To the extent we have not specifically addressed the parties' remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed in part and vacated in part. The parties may make appropriate applications in accordance with this opinion upon remand to the trial court. We do not retain jurisdiction.

Tuesday, August 04, 2026

Attorney could be paid in criminal case by a witness State v. Dana Kearney A-50-24


approved by the Court and may not summarize all portions of the opinion.

State v. Dana Kearney (A-50-24) (089877)

Argued February 3, 2026 -- Decided July 27, 2026

JUSTICE NORIEGA, writing for a unanimous Court.

In this appeal, the Court considers defendant Dana Kearney’s argument that

his counsel was ineffective, and his conviction must be reversed, because a State

witness paid his legal fees, creating a conflict of interest.

Defendant was charged with murder and other offenses in connection with the

August 2013 stabbing death of Christopher Sharp. Sharp was the cousin of Alicia

Boone, with whom defendant was in a relationship. During police questioning,

Boone first told officers that defendant said, “[Sharp] got cut.” In a later statement,

she said defendant stated that he had “poked” Sharp.

Prior to trial, Boone hired attorney Neil G. Duffy to represent defendant. She

later testified that she met with Duffy on a total of three occasions, the last time in

2014, and that their discussions were limited to payment of defendant’s legal fees.

At trial, the State called Boone as a witness. On cross-examination, Duffy

asked why Boone had changed her account of what defendant told her about Sharp.

Boone testified that she was held at the police station for about 16 hours without

being allowed to use a bathroom, which she agreed “broke” her. Duffy asked

whether Boone was coloring her testimony to protect defendant; she stated that she

and her family knew defendant had not killed Sharp. Duffy also asked questions

through which Boone confirmed that she had not visited Duffy’s office since 2014;

had not directly communicated with him other than paying defendant’s legal fees;

and had hired her own attorney -- unaffiliated with Duffy -- to prepare her for trial.

In summation, Duffy argued that Boone had been pressured to change her statement

from “[Sharp] got cut” to “I poked [Sharp]” and was not a credible witness.

Defendant was found guilty on all charges. Following an unsuccessful direct

appeal, defendant filed a petition for post-conviction relief (PCR), asserting

ineffective assistance of counsel on the basis that Duffy had a conflict of interest.

Alternatively, defendant argued he was entitled to an evidentiary hearing. The PCR

court denied the motion without a hearing. The Appellate Division affirmed. 479

1N.J. Super. 539, 544-45 (App. Div. 2024). The Court granted certification, limited

to whether the payment of a criminal defendant’s legal fees by a person who later

testifies as a witness for the State creates a conflict of interest. 260 N.J. 327 (2025).

HELD: There was no conflict of interest here -- per se or actual. The Court sets

forth recommendations to clarify best practices for handling third-party payment of

legal fees in criminal matters.

1. An attorney’s duty of loyalty requires exclusive loyalty to the client, without

diversion of that loyalty in favor of another person or the lawyer’s own self-interest.

In the context of PCR, a defendant who demonstrates that counsel’s loyalty was

divided and that he suffered corresponding prejudice may establish a violation of the

right to effective assistance of counsel, warranting post-conviction relief. The Court

has adopted a two-tier framework for addressing conflict-of-interest allegations.

First, courts consider whether the alleged conflict at issue constitutes a per se

conflict -- a conflict so inherently fraught with divided loyalties that prejudice to the

defendant is presumed, and reversal is required, unless the defendant has knowingly

and intelligently waived the conflict. If a per se conflict is not found, courts next

consider whether the alleged potential conflict is an actual conflict, and, if so,

whether a great likelihood of prejudice resulted. The actual conflict standard is a

flexible, fact-sensitive inquiry in which courts examine the specific facts of each

case to determine whether the attorney’s representation was materially limited by

responsibilities to another client, a third party, or by the lawyer’s own interests. A

defendant may consent to an actual conflict, provided the waiver is knowing,

intelligent, and voluntary. But, under no circumstances should waiver be inferred

from a silent record. (pp. 15-20)

2. In the context of third-party payment of legal fees, the Rules of Professional

Conduct require that the client provide “informed consent,” which is defined as

agreement to a proposed course of conduct after the lawyer has communicated

adequate information and explanation about the material risks and reasonably

available alternatives. Once an actual conflict of interest has been established,

however, waiver requires a knowing, intelligent, and voluntary relinquishment of the

right to conflict-free counsel, and it must be made on the record with the trial court

ensuring that the defendant fully understands the potential hazards of the conflict.

Each form of consent must be analyzed according to the specific context and stage

of the case. (pp. 20-21)

3. A criminal defendant’s ability to retain private counsel is unique among attorney-

client relationships, particularly due to the barriers created by detention. For

members of the private bar, the assistance of family or friends may be the only

means available to connect an attorney to a detained defendant. This dynamic

introduces the potential for a conflict of interest as soon as a third party becomes

2involved in the attorney-client relationship. At the same time, however, a per se rule

excluding all such arrangements would be both impractical and unfair, particularly

for defendants in custody who must often rely on family, friends, or others to secure

private counsel on their behalf. In In re State Grand Jury Investigation, 200 N.J. 481

(2009), the Court expressly rejected a per se rule of disqualification in all third-party

payer situations and instead set forth a fact-specific six-part test to assess whether a

third-party payer’s relationship with counsel led to a material limitation resulting in

an actual conflict. The Court reviews that test. (pp. 21-24)

4. The record here demonstrates that Boone’s involvement with Duffy was limited

to the payment of legal fees. There is no evidence that Duffy’s representation of

defendant was materially limited by Boone’s payment, nor is there any evidence of

divided loyalty or impaired advocacy. The alleged division of counsel’s loyalties

was purely hypothetical, and Duffy’s conduct throughout the trial reflected

undivided loyalty to his client. Because defendant has failed to establish the

existence of a conflict, the Court does not reach the question of informed consent. A

third party paying the legal fees of a defendant’s counsel does not create a per se

conflict, and defendant has failed to establish an actual conflict. And because

defendant’s allegations amount to nothing more than unsupported assertions, they

are insufficient to warrant an evidentiary hearing. (pp. 24-27)

5. To provide clarity and protection for both counsel and client, the Court

recommends best practices for all criminal cases involving third-party payment of

legal fees: (1) preparation of a standalone document, separate from the retainer

agreement, memorializing the identity of the payer and the nature of the payment

arrangement; (2) the client’s signature of the document as acknowledgment and

indication of informed consent to the arrangement; (3) an ongoing duty to update;

(4) maintaining the document on file for production in the event of a dispute or post-

conviction challenge, with appropriate safeguards for confidentiality; and (5) the

designation of a primary payer when multiple individuals wish to contribute to the

defendant’s legal fees. In adopting these best practices, the Court seeks to balance

the practical realities of criminal defense with the need to safeguard the defendant’s

right to conflict-free counsel. However, an attorney’s failure to adopt these best

practices does not, by itself, establish a conflict of interest or entitle a client to relief

for ineffective assistance of counsel. The Court recommends that the Criminal

Practice Committee review and develop a model form for this purpose and consider

whether, in certain circumstances, additional steps should be required. (pp. 27-30)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS,

WAINER APTER, FASCIALE, and HOFFMAN join in JUSTICE NORIEGA’s

opinion.

3SUPREME COURT OF NEW JERSEY

A-50 September Term 2024

089877

State of New Jersey,

Plaintiff-Respondent,

v.

Dana Kearney,

Defendant-Appellant.

On certification to the Superior Court,

Appellate Division, whose opinion is reported at

479 N.J. Super. 539 (App. Div. 2024).

Argued

February 3, 2026

Decided

July 27, 2026

Rachel E. Leslie, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti, Public

Defender, attorney; Rachel E. Leslie, of counsel and on

the briefs, and Steven M. Gilson, Designated Counsel, on

the briefs).

Erin M. Campbell, Assistant Prosecutor, argued the cause

for respondent (Yolanda Ciccone, Middlesex County

Prosecutor, attorney; Erin M. Campbell, of counsel and

on the briefs).

Kaili E. Matthews, Deputy Attorney General, argued the

cause for amicus curiae Attorney General of New Jersey

(Jennifer Davenport, Acting Attorney General, attorney;

Kaili E. Matthews, of counsel and on the brief).

1JUSTICE NORIEGA delivered the opinion of the Court.

In this appeal, we consider defendant Dana Kearney’s argument that his

counsel was ineffective, and his conviction must be reversed, because a State

witness paid his legal fees, creating a conflict of interest.

Alicia Boone, who was in a relationship with defendant, paid his legal

fees and subsequently testified as a witness for the State. Following his jury

trial, defendant was convicted of first-degree murder, aggravated assault,

endangering the injured victim, hindering prosecution, and witness tampering.

After the Appellate Division affirmed defendant’s conviction and sentence, he

filed a petition for post-conviction relief (PCR) alleging, among other claims,

that he was denied effective assistance of counsel because Boone paid his legal

fees, creating a conflict of interest.

Because we conclude that there was no conflict of interest -- per se or

actual -- we affirm the Appellate Division’s judgment. In addition, we set

forth recommendations at the end of this opinion to clarify best practices for

handling third-party payment of legal fees in criminal matters.

2I.

A.

In August 2013, defendant was in Boone’s house, along with his cousin,

Joseph Kearney; Shane Timmons; Tori Evelyn, Timmons’s cousin; and

Boone’s cousin, Christopher Sharp, the victim in this matter. Shortly after

midnight, the men got into a physical altercation. During the commotion,

Boone gathered her children to leave; one of them later recalled seeing

defendant with a folding knife during the confrontation. Boone made her way

to her car with her children, intending to drive to her mother’s house. Before

she pulled away from the house, defendant ran to the vehicle, climbed in, and

left with Boone and the children.

After dropping the children off at her mother’s house, Boone and

defendant remained outside, where he said to Boone that “something was

wrong with [Sharp],” and that they needed to return to her house. Boone later

told police that when she asked him to explain, defendant stated that he had

“poked” Sharp.

1

Boone and defendant returned to her house where they found Sharp lying

on the floor. Defendant joined Joseph Kearney, Timmons, and Evelyn in the

1 This statement became a central point of contention during the trial. As

discussed below, Boone also said that defendant stated,

“[Sharp] got cut.

”

3living room where the victim lay motionless. Evelyn described them all as “in

shock.” Eventually, Evelyn persuaded them to leave with him in his van.

Boone’s stepfather returned to the house to check on Sharp after seeing

him in an inebriated state earlier that same day. He found Sharp on the floor

unresponsive and called the police. When first responders arrived at 2:04 a.m.,

Sharp had no pulse and was lying in a pool of blood. According to one of the

responders, “it . . . looked like he had been there for a little while.” It was

later determined that Sharp died from several stab wounds to the chest.

B.

A Middlesex County grand jury indicted defendant, Timmons, and

Joseph Kearney on various counts including conspiracy to commit aggravated

assault, murder, endangering an injured victim, hindering apprehension, and

witness tampering. The defendants were tried together before a jury.

Prior to trial, Boone hired attorney Neil G. Duffy to represent defendant.

She later testified that she met with Duffy on a total of three occasions, the last

time in 2014, and that their discussions were limited to payment of defendant’s

legal fees.

During the trial, the State called Boone as a witness. Both the State and

defense questioned Boone about statements to the police in which she gave

differing accounts of defendant’s alleged admission. During direct

4examination, the State focused on Boone’s second statement to police -- that

defendant exclaimed, “I poked him,” referring to Sharp. On cross-

examination, Duffy countered by focusing on Boone’s earlier statement in

which she told the police that defendant said Sharp “got cut.”

In his cross-examination of Boone, Duffy asked the following:

DUFFY: What was it about that conversation with

Carlos Rodriguez that had you change your testimony?

BOONE: He insinuated I wasn’t going home.

DUFFY: Were you scared at that point?

BOONE: Very.

. . . .

DUFFY: So, then you come out for the second

statement about 4:00 in the afternoon. And then you

change it to he said something like I may have poked

him; right?

BOONE: Yes.

DUFFY: After you told them that I may have poked

him, they let you go home?

BOONE: Not immediately. I was there for about

sixteen hours I think in all. So, not immediately. I

also was not allowed to go to the bathroom. So --

DUFFY: Wait a minute. Whoa. Did you just say you

weren’t allowed to go to the bathroom?

. . . .

5BOONE: . . . So, when I went in to speak with him, I

urinated on myself, it was just whatever they want. So,

they -- eventually I was able to go to the bathroom.

They found an officer somewhere. And they’ll take me

to the bathroom. And whatever they want.

DUFFY: So, in a sense they kind of broke you.

BOONE: I guess so. I was going home.

On redirect, the State asked Boone to describe her conversation with

Detective Rodriguez:

BOONE: Everyone had left. So, I asked Detective

Rodriguez, I said, -- I said, everybody’s leaving. And

he said, yeah. . . . I said, am I being locked up for

something? And he said, well why do you ask that?

And I said, because you let everyone leave but me. And

he said, now that’s a good observation. I insinuated that

meant I was not going home, because all he had to say

was yes or no. And that’s not what he said.

The State then questioned Boone about her second statement to the

detective. She testified:

BOONE: Then [Rodriguez] told me, come on, Alicia.

He said, come on, you got something else to tell me. I

said, no I don’t have anything else to tell you. I said, I

told you everything. He said, no, come on, you got

something else . . . he went on and on with that[.] I

said, look, [Kearney] is -- is mean. . . . He said to the

other detectives, you know what, I think Alicia has

something else she want[s] to tell you guys. And that’s

when I went in there and made my second statement.

Boone testified that she felt intimidated and that she only went to the police

the second time to change one part of her statement -- that defendant said “he

6poked him” instead of “he got cut” -- and that once she changed that part of

her statement, she was allowed to go home.

The State played the video of Boone’s second statement for the jury in

which Boone stated she was afraid of defendant and feared for the safety of her

children because he was “mean,

” he had a “past,

” and because he had

“people.” Boone ultimately conceded that she was crying during the video out

of fear of defendant; despite her comments about police intimidation, Boone

indicated that she never reported that or mentioned it to anyone other than her

lawyer. She stated that she never directed her lawyer to act on that

information. She also testified that some of the officers were “very good to

[her].”

On re-cross examination, Duffy asked whether Boone was “coloring”

her testimony solely to protect defendant, to which she responded, “my family

and I are very much aware of who killed my cousin. We are much aware that

it was not Dana Kearney.”

On redirect, the State questioned Boone about her relationship with

Kearney:

STATE: So, on August 21st, 2013, after you were

allowed to go home, you came back to the police and

you again told them that Dana said that he poked

Chris, right?

BOONE: Yes.

7STATE: Ms. Boone, you love Dana, right?

BOONE: Yes. I love all of them actually, but yes I do

love Dana.

STATE: Like you told us before, you hired Mr. Duffy

to represent him, right?

BOONE: Yes.

STATE: And you’re paying for his services?

BOONE: Yes.

STATE: And Dana is the father of your child, right?

BOONE: Yes.

STATE: And since this incident, you’ve spoken to him

thousands of times. Is that fair to say?

BOONE: Yes.

STATE: You’ve seen him hundreds of occasions,

right?

BOONE: Yes.

STATE: You don’t want to see anything bad to happen

to him, right?

BOONE: No.

STATE: Certainly not because of anything that you

say, right?

BOONE: Exactly.

8Duffy followed up with several clarifying questions through which

Boone confirmed that she had not visited Duffy’s office since 2014, nor had

she directly communicated with him other than paying defendant’s legal fees,

and that she had hired her own attorney -- unaffiliated with Duffy -- to prepare

her for trial.

In summation, Duffy challenged Boone’s credibility and motives for

changing her initial statement from “[Sharp] got cut” to “I poked [Sharp].”

Duffy contended that Boone had been pressured to change her statement and

was not a credible witness.

The jury returned a verdict of guilty on all charges. Defendant was

sentenced to an aggregate term of fifty years’ imprisonment subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2. The Appellate Division affirmed

defendant’s conviction and sentence. This Court denied certification.

C.

Defendant filed a petition for PCR. He asserted ineffective assistance of

counsel on the basis that Duffy had a conflict of interest because he was paid

by the State’s witness, which denied him a fair trial. Alternatively, defendant

argued he was entitled to an evidentiary hearing.

9The PCR court denied defendant’s motion without an evidentiary

hearing.2 The court held that defendant failed to establish a prima facie case

of ineffective assistance of counsel and failed to demonstrate a per se or actual

conflict in Duffy’s representation; therefore, defendant was not entitled to an

evidentiary hearing.

D.

On appeal, the Appellate Division affirmed the PCR court’s decision.

State v. Kearney, 479 N.J. Super. 539, 544-45 (App. Div. 2024). Regarding

the alleged conflict of interest, the court first analyzed the third-party payer

issue in the context of per se conflicts. Id. at 558-61. As to defendant’s claim

that he was never advised of a potential conflict, the appellate court

“decline[d] to hinge a finding of a per se conflict and constitutional violation

upon such a bald assertion” for three reasons. Id. at 560 (quotation omitted).

First, “noncompliance with an ethics requirement, while relevant, does not

automatically trigger per se civil or criminal consequences.” Ibid. (citing Baxt

v. Liloia, 155 N.J. 190, 197-98 (1998)). Second, the trial record makes it

“readily inferable” that defendant must have been fully aware that his

2 The trial court and the parties learned, prior to the hearing, that Duffy had

passed away in the years since the trial.

10girlfriend Boone paid his legal fees.3 Ibid. Third, Duffy zealously advocated

on behalf of defendant’s interests and “exhibited loyalty to his client.” Id. at

560-61 (citing RPC 1.7 and State v. Cottle, 194 N.J. 449, 463 (2008)).

Relying upon the same evidence adduced in the per se analysis, the

appellate court concluded that there was also no actual or potential conflict,

and no great likelihood of prejudice. Id. at 561-62. The court reiterated that

Duffy forcefully advocated and attempted to “undermine the incriminating

portions of Boone’s police statements.” Id. at 562.

For those reasons, the appellate court ultimately determined that an

evidentiary hearing was unnecessary. Id. at 562-63.

We granted Kearney’s petition for certification, limited to the issue of

whether the payment of a criminal defendant’s legal fees by a person who later

testifies as a witness for the State creates a conflict of interest, requiring

reversal of the conviction or other relief. 260 N.J. 327 (2025). We also

granted leave to the Attorney General to appear as amicus curiae.

3 The Appellate Division also recommended that, going forward, private

criminal defense counsel make a practice of documenting the client’s informed

consent in writing or by other recorded means. Id. at 561.11II.

A.

Defendant urges this Court to reverse his convictions and find either a

per se or an actual conflict, or, at minimum, that he is entitled to an evidentiary

hearing.

Defendant argues that a per se conflict of interest exists whenever a third

party hires or pays a defendant’s legal fees and has an adverse interest to the

defendant in the proceeding. Defendant contends that an adverse interest is

present when the third party’s criminal liability may turn on the defendant’s

testimony or cooperation against the third party. Defendant asserts that such

an arrangement inherently risks dividing defense counsel’s loyalty and erodes

public confidence in the integrity of the legal profession.

Additionally, defendant claims that the Appellate Division failed to

analyze whether he made a knowing and voluntary waiver of the conflict

resulting from Boone’s payment. Defendant highlights that there is no proof

in the record that defendant gave informed consent, as the appellate court

noted. Defendant argues that even if he had provided informed consent, such

consent satisfied only the Rules of Professional Conduct (RPCs) and did not

waive the conflict itself. Instead, defendant argues that his constitutionally

12protected right to effective assistance of counsel should not rest on a

presumption of waiver where the record is silent.

Alternatively, defendant argues that the relationship between Boone and

his attorney resulted in an actual conflict that adversely affected his attorney’s

representation of him. Upon a showing of an actual conflict, defendant argues

that the prevailing federal case law dictates that he should not be required to

prove a higher degree of prejudice than what the Federal Constitution

requires.4

Defendant contends that, at minimum, he has presented a prima facie

case of a potential conflict, as well as ineffective assistance of counsel, thus

entitling him to an evidentiary hearing.

B.

The State asks this Court to affirm, asserting that the Appellate Division

and the trial court correctly denied defendant’s PCR petition. The State

contends that no per se conflict rule governs this case and that, if such a rule

were imposed, it would likely harm defendants by denying them the financial

4 Because defendant argues for the first time before this Court that our state

standard is less protective than that announced in Cuyler v. Sullivan, 446 U.S.

335 (1980), we do not reach that issue in this appeal, see Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973).13help to retain private counsel, as well as burden the Office of the Public

Defender.

The State contends that the actual conflict analysis is the appropriate

standard, but that the facts of this case fail to support the existence of an actual

conflict or resulting prejudice to defendant. The State points to defendant’s

allegations -- that Boone’s interests conflicted with defendant’s interests; that

Boone was primarily focused on shielding herself from criminal liability; and

that Boone sought to retaliate against defendant -- and asserts that no credible

evidence in the record supports any of those bare claims. The State highlights

that defendant has not demonstrated divided loyalties and that Boone’s

testimony reflects little to no interaction with Duffy. The State contends that,

even if a conflict of interest exists, defendant has failed to demonstrate that he

has been prejudiced. Finally, the State asks this Court to reject any arguments

defendant raises for the first time and to affirm the finding of the Appellate

Division that defendant failed to establish a prima facie claim of ineffective

assistance of counsel and is therefore not entitled to an evidentiary hearing.

The Attorney General joins the State’s arguments and adds that “a

waiver made following informed consent should generally be memorialized in

situations where the third-party payer may be called as a potential witness by

the State.” Although the requirement of a writing “might appear burdensome,”

14the Attorney General asserts, it will “actually create[] a number of benefits for

a lawyer.”

III.

A.

Our review of a PCR court’s findings is “necessarily deferential,” yet we

review legal conclusions de novo. State v. Hernandez-Peralta, 261 N.J. 231,

246 (2025) (quoting State v. Nash, 212 N.J. 518, 540 (2013)). As noted above,

defendant alleges that the conflict of interest that arose between his attorney

and the State’s main witness was insurmountable and deprived him of his

constitutional right to counsel. Whether a conflict-of-interest deprived

defendant of his constitutional right to counsel is a legal question; accordingly,

our review of this issue is de novo. See State v. Harris, 181 N.J. 391, 419

(2004); Hernandez-Peralta, 261 N.J. at 246.

The ethical foundation for an attorney’s duty of loyalty is codified in the

Rules of Professional Conduct, specifically RPC 1.7. Under RPC 1.7(a),

(a) . . . [A] lawyer shall not represent a client if the

representation involves a concurrent conflict of

interest. A concurrent conflict exists if

(1) the representation of one client will be

directly adverse to another client; or

(2) there is a significant risk that the

representation of one or more clients will be

materially limited by the lawyer’s15responsibilities to another client, a former client,

or a third person, or by a personal interest of the

lawyer.

“The paramount obligation of every attorney is the duty of loyalty to his

client.” Cottle, 194 N.J. at 463. A criminal defendant places their fate in the

hands of an attorney taking responsibility for their matter. The right to counsel

is not merely the right to have an attorney present, but the right to effective

assistance of counsel: counsel who provides the “client with undivided loyalty

and representation that 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)). Put simply, that duty requires the attorney’s

exclusive loyalty to the client, without diversion of that loyalty in favor of

another person or the lawyer’s own self-interest. Id. at 23-24.

In the context of PCR, a defendant may challenge their conviction on the

ground that a conflict of interest deprived them of the effective assistance of

counsel. R. 3:22-2(a). A hallmark of the right to counsel is that “[t]here is no

greater impairment of a defendant’s constitutional right to counsel than that

which can occur when his attorney is serving conflicting interests. The

resulting representation may be more harmful than the complete absence of a

lawyer.” Bellucci, 81 N.J. at 538. Thus, a defendant who demonstrates that

counsel’s loyalty was divided and that he suffered corresponding prejudice

16may establish a violation of the right to effective assistance of counsel,

warranting post-conviction relief.

In Norman, this Court adopted a two-tier framework for addressing

conflict-of-interest allegations. 151 N.J. at 24-25. Under that framework,

courts first consider whether the alleged conflict at issue constitutes a per se

conflict. Ibid. A per se conflict of interest arises in those rare circumstances

in which the nature of the conflict is so inherently fraught with divided

loyalties that prejudice to the defendant is presumed, and reversal is required

unless the defendant has knowingly and intelligently waived the conflict. See

ibid.; Cottle, 194 N.J. at 472.

The per se conflict rule is formulated as such to maintain “public

confidence in the integrity of the bar” and the constitutional guarantee of

effective assistance of counsel, Bellucci, 81 N.J. at 541, and it has been limited

to those instances of conflict that create an “overriding concern of divided

loyalties” so significant that the risk of prejudice is intolerable, see Cottle, 194

N.J. at 467 n.8. Examples of the limited application of the per se conflict rule

include “simultaneous dual representations of codefendants,

” Norman, 151

N.J. at 24-25, and when an attorney is simultaneously “under indictment in the

same county as his client” and is prosecuted by the same prosecutor’s office,

Cottle, 194 N.J. at 473.

17In light of the serious nature of a per se conflict, a defendant may waive

this type of conflict only if the defendant receives notice “in court and on the

record” of their counsel’s “predicament that may be adverse to the best

interests of the client.” Id. at 472. Once the situation is fully disclosed,

“the

defendant must knowingly, intelligently, and voluntarily agree to proceed with

a conflict-tainted attorney,” followed by their counsel’s declaration “that

despite the conflict[, they] ‘reasonably believe[] that [they] will be able to

provide competent and diligent representation’” to the client. Ibid. (quoting

and citing RPC 1.7(b)(2)).

If a per se conflict is not found, courts next consider whether the alleged

potential conflict is an actual conflict, and, if so, whether “a great likelihood of

prejudice” resulted. Norman, 151 N.J. at 25. If such a showing is made, a

“presumption of both an actual conflict of interest and actual prejudice will

arise, without the necessity of proving [specific] prejudice.” State v. Bell, 90

N.J. 163, 171 (1982).

The actual conflict standard is a flexible, fact-sensitive inquiry. The

court examines the specific facts of the case to determine whether the

attorney’s representation was “materially limited” by responsibilities to

another client, a third party, or by the lawyer’s own interests. Cottle, 194 N.J.

at 466; see also State v. Harvey, 176 N.J. 522, 529 (2003) (noting that the

18Court’s evaluation of an actual or apparent conflict must be “directed to

‘something more than a fanciful possibility’” (quoting In re Op. No. 653 of the

Advisory Comm. on Pro. Ethics, 132 N.J. 124, 132 (1993))). Thus, to seek

disqualification of a conflicted attorney, “the asserted conflict ‘must have

some reasonable basis,

’” id. at 529 (quoting In re Op. No. 653, 132 N.J. at

132); a bald assertion will be insufficient.

This Court has “recognized that when an ‘attorney cannot or may not be

able to pursue an unrestrained course of action in favor of a defendant because

[of a conflict], his effectiveness as counsel has been hampered.’” Cottle, 194

N.J. at 468 (quoting State v. Land, 73 N.J. 24, 30-31 (1977)). If the limitation

on decision-making is determined to be significant and there is a great

likelihood that prejudice will result, the court may find an actual conflict.

Norman, 151 N.J. at 25 (citing Bell, 90 N.J. at 171). The rationale for this

approach ensures that defendants are not deprived of effective assistance of

counsel due to conflicts that, while not per se, still pose a substantial risk to

the fairness of the proceedings.

Nevertheless, the right to conflict-free counsel, though fundamental, is

not absolute. Defendants may “surrender their constitutional rights to

independent counsel,” but there is a “strong presumption against waiver of

fundamental rights.

”

. Bellucci, 81 N.J. at 544 (quoting Land, 73 N.J. at 32

19first and citing Glasser v. United States, 315 U.S. 60, 70 (1941) second). Just

as with per se conflicts, a defendant may consent to an actual conflict,

provided the waiver is knowing, intelligent, and voluntary. Cottle, 194 N.J. at

472. But, under no circumstances should waiver be inferred from a silent

record. See ibid.

In the context of third-party payment of legal fees, the RPCs require that

the client provide “informed consent,” which is defined as “the agreement by a

person to a proposed course of conduct after the lawyer has communicated

adequate information and explanation about the material risks and reasonably

available alternatives to the proposed course of conduct.

” In re State Grand

Jury Investigation, 200 N.J. 481, 495 (2009). The concept of “informed

consent” under the In re State Grand Jury Investigation standard refers to a

prerequisite for ethically permitting a third-party payment arrangement: the

client must be adequately informed of the material risks and alternatives before

agreeing to the arrangement. Ibid. This is one of several factors that must be

satisfied to avoid a violation of the RPCs. See id. at 495-96.

By contrast, once an actual conflict of interest has been established, the

standard for waiver is more stringent. In that context, waiver requires a

knowing, intelligent, and voluntary relinquishment of the right to conflict-free

counsel, and must be made on the record with the trial court ensuring that the

20defendant fully understands the potential hazards of the conflict. See Norman,

151 N.J. at 35 (citing Bellucci, 81 N.J. at 544-45); Cottle, 194 N.J. at 472.

Thus, while informed consent is a factor to be considered in evaluating the

propriety of a third-party payment arrangement, a valid waiver of an actual

conflict -- once established -- demands a higher level of judicial scrutiny and

procedural formality. Each form of consent must be analyzed according to the

specific context and stage of the case.

B.

A criminal defendant’s ability to retain private counsel is unique among

attorney-client relationships, particularly due to the barriers created by

detention. Attorneys from the Office of the Public Defender can typically

establish attorney-client relationships directly, without intervention of third

parties. By contrast, for those members of the private bar, the assistance of

family or friends may be the only means available to connect an attorney to a

detained defendant. This dynamic introduces the potential for a conflict of

interest as soon as a third party becomes involved in the attorney-client

relationship. At the same time, however, a per se rule excluding all such

arrangements would be both impractical and unfair, particularly for defendants

in custody who must often rely on family, friends, or others to secure private

counsel on their behalf.

21Recognizing this, our case law requires careful scrutiny of third-party

arrangements to ensure that the attorney’s loyalty remains undivided and that

the defendant’s right to effective assistance of counsel is not compromised.

In re State Grand Jury Investigation provides the governing framework

for analyzing conflicts arising from third-party payment of legal fees. 200 N.J.

at 481. The case involved a grand jury investigation of a corporation and three

employees for fraud. Id. at 486. The corporation hired counsel for the three

employees and paid their legal fees. Ibid. We expressly rejected a per se rule

of disqualification in all third-party payer situations. See id. at 494. Instead,

we harmonized RPCs 1.8(f), 1.7(a)(2), and 5.4(c),5 and articulated a fact-

5 Under RPC 1.8(f),

(f) A lawyer shall not accept compensation for

representing a client from one other than the client

unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer’s

independence of professional judgment or with

the lawyer-client relationship; and

(3) information relating to representation of a

client is protected as required by RPC 1.6

[(confidentiality of information)].22specific six-part test to assess whether a third-party payer’s relationship with

counsel led to a material limitation resulting in an actual conflict. See id. at

491, 494-97. The factors are as follows:

(1) The informed consent of the client is secured. . . .

(2) The third-party payer is prohibited from, in any

way, directing, regulating, or interfering with the

lawyer’s professional judgment in representing [the]

client.

(3) There cannot be any current attorney-client

relationship between the lawyer and the third-party

payer.

(4) The lawyer is prohibited from communicating with

the third-party payer concerning the substance of the

representation of [the] client. . . .

(5) The third-party payer shall process and pay all such

invoices within the regular course of its business,

consistent with [the] manner, speed[,] and frequency it

pays its own counsel.

(6) Once a third-party payer commits to pay for the

representation of another, the third-party payer shall

Separately, under RPC 1.7(a)(2), “[a] concurrent conflict of interest

exists if . . . there is a significant risk that the representation of one or more

clients will be materially limited by the lawyer’s responsibilities to another

client, a former client, or a third person or by a personal interest of the

lawyer.”

And lastly, RPC 5.4(c) states that “[a] lawyer shall not permit a person

who recommends, employs, or pays the lawyer to render legal services for

another to direct or regulate the lawyer’s professional judgment in rendering

such legal services.”

23not be relieved of its continuing obligation to pay

without leave of court brought on prior written notice

to the lawyer and the client. . . .

[Id. at 496 (citations omitted).]

So long as the six conditions are satisfied, including informed consent and the

absence of interference with the lawyer’s professional judgment, no automatic

conflict arises and a third-party payer is permissible. Id. at 494-95.

IV.

Against that legal framework, we turn to defendant’s case. The potential

conflict in this case arises from the fact that Boone, a State witness, hired and

paid the legal fees for defendant’s attorney, Duffy.

The record here demonstrates that Boone’s involvement with Duffy was

limited to the payment of legal fees, and that she had no substantive contact

with Duffy regarding the case, had not visited his office since 2014, and

retained her own attorney, unaffiliated with Duffy, to prepare for her trial

testimony. There is no evidence that Duffy’s representation of defendant was

materially limited by Boone’s payment, nor is there any evidence of divided

loyalty or impaired advocacy.

To the contrary, Duffy zealously cross-examined Boone and challenged

her credibility at trial. Duffy’s cross-examination was effective and raised

points that could have resonated with the jury, including highlighting the

24contradictory statement “[Sharp] got cut,” rather than the statement highlighted

by the State, “I poked [Sharp].” Any suggestion that Duffy’s strategy was

compromised, or that he failed to pursue alternative lines of questioning due to

a conflict, is speculative and unsupported by the record.

Moreover, Boone confirmed that her interaction with Duffy was limited

and remote, and no question was raised about whether the financial

relationship created any bias in her testimony. If anything, the State prompted

the inquiry with Boone to highlight her possible motive to protect defendant

through her testimony. In fact, Boone’s re-cross examination culminated in

her testimony that she and her family were aware of who killed her cousin, and

that it “was not Dana Kearney.” As the Appellate Division found, the alleged

division of counsel’s loyalties was “purely hypothetical,” and Duffy’s conduct

throughout the trial reflected undivided loyalty to his client.

Admittedly, the record does not contain documentation of defendant’s

informed consent to the fee arrangement and, as we have previously stated,

mere knowledge of the arrangement is not equivalent to informed consent. See

In re State Grand Jury Investigation, 200 N.J. at 495. However, a violation of

the RPCs, while relevant, is not dispositive, see Baxt, 155 N.J. at 197-98,

especially where the defendant has failed to establish the existence of a

conflict; accordingly, we do not reach the question of informed consent.

25We therefore hold that defendant has failed to establish that his attorney

provided ineffective assistance of counsel by virtue of a conflict of interest. A

third party paying the legal fees of a defendant’s counsel does not create a per

se conflict, and under the facts presented, defendant has failed to establish an

actual conflict.6

V.

Defendant’s claim that he is entitled to an evidentiary hearing is likewise

unavailing. Defendant acknowledges that an evidentiary hearing would be

“unlikely to shed meaningful light on whether the fee arrangement or Duffy’s

potential ethical violation affected his strategic decisions, nor on the question

of whether Kearney gave informed consent to the arrangement.” Even when

the facts are viewed in the light most favorable to defendant, the record is

devoid of any evidence that would support a prima facie showing of

6 We note that, although the standards for an actual conflict of interest and for

ineffective assistance of counsel under Strickland v. Washington, 466 U.S.

668, 692-96 (1984), and State v. Fritz, 105 N.J. 42, 52-53, 60 n.2 (1987), are

closely related when the alleged deficiency arises from a conflict, they remain

distinct legal inquiries. Here, defendant’s Strickland/Fritz argument is little

more than a fallback position, consisting of a recitation of the bare standard

and relying solely on the fact that Boone paid his legal fees. Defendant offers

no additional facts, evidence, or substantive arguments to support a claim of

ineffective assistance of counsel beyond this third-party payment arrangement.

Defendant offers no specific facts or evidence to establish a prima facie case of

ineffective assistance. Because these contentions are neither developed nor

substantiated in any significant way, we decline to address them further. See

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).26ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462-63

(1992). Defendant’s allegations amount to nothing more than unsupported

assertions, which are insufficient to warrant an evidentiary hearing. See

Cummings, 321 N.J. Super. at 170 (“A petitioner must do more than make bald

assertions that he was denied the effective assistance of counsel.”).

VI.

We recognize that third-party payment of legal fees is a common and

often necessary feature of criminal defense practice, particularly for detained

defendants who may not have direct access to private counsel. However, as

this case demonstrates, such arrangements present unique risks of conflict and

divided loyalty, especially when the payer is, or may become, a witness in the

case. To address these risks and to provide clarity and protection for both

counsel and client, we recommend the following best practices for all criminal

cases involving third-party payment of legal fees:

1. Separate disclosure and consent document

Whenever an attorney accepts payment from a third party for a

defendant’s legal fees, the attorney should prepare a standalone

document, separate from the retainer agreement, memorializing the

identity of the payer and the nature of the payment arrangement.

272. Client acknowledgement and informed consent

The defendant should be provided with the name of the payer and

should sign the separate document to acknowledge having been informed

of the identity of the payer and consenting to the arrangement. That

acknowledgement should make clear that the attorney’s loyalty is owed

solely to the defendant, and that the payer has no authority to direct the

representation or influence strategy.

3. Ongoing duty to update

Because the fee structure and identity or status of the payer

may change over the course of the representation, the attorney

should update and re-execute this disclosure and consent document

if there is any change in the identity, or status of the payer, such as

the payer being designated as a witness for the State or otherwise

becoming involved in the proceedings.

4. Filing and confidentiality

The Court does not require that this document be filed with the

court in every case. However, in the event of a dispute or post-

conviction challenge, the existence of such a document will be highly

relevant. The document should be maintained in counsel’s file and

produced as needed, with appropriate safeguards for confidentiality.

285. Designation of a Primary Payer

To avoid confusion and administrative difficulties when multiple

individuals wish to contribute to the defendant’s legal fees, best practice

is for the attorney to work with the defendant and their supporters to

designate a single individual as the primary payer. This person will be

responsible for collecting and forwarding payments to the attorney, and

will be identified in the disclosure and consent document as the payer of

record. While others may contribute funds to the primary payer, the

attorney’s relationship and payment arrangement will be memorialized

with the designated individual. This approach ensures clarity, simplifies

record-keeping, and maintains the integrity of the disclosure and consent

process.

The existence of a signed, up-to-date disclosure and consent document will

serve as evidence of the defendant’s awareness and consent to the third-party

payment arrangement. This protects both counsel and client by providing a clear

record of disclosure and consent, thereby reducing the risk of later claims of

undisclosed conflict.

In adopting these best practices, the Court seeks to balance the practical

realities of criminal defense with the need to safeguard the defendant’s right to

conflict-free counsel. However, an attorney’s failure to adopt these best practices29does not, by itself, establish a conflict of interest or entitle a client to relief for

ineffective assistance of counsel.

We recommend that the Criminal Practice Committee review and develop a

model form for this purpose and consider whether, in certain circumstances (such

as when the payer is a known witness), additional steps, such as an in-court

colloquy or filing under seal, should be required.

VII.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-

LOUIS, WAINER APTER, FASCIALE, and HOFFMAN join in JUSTICE

NORIEGA’s opinion.

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