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State v. Cole

Decided: October 24, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES COLE, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

O'Brien and Simpson. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Defendant appeals from his conviction of receiving stolen property in violation of N.J.S.A. 2C:20-7 a upon which he was sentenced to a term of five years and assessed an appropriate penalty payable to the Violent Crimes Compensation Board. We affirm.

On July 31, 1983, defendant and June Callahan, wife of defendant's then-employer, entered into a written agreement*fn1 under which Mrs. Callahan loaned her motor vehicle to defendant for a period of two weeks while she was on vacation. The agreement restricted use of the vehicle to Pinellas County, in the State of Florida, although it was the intention of the parties that defendant use the vehicle to commute to work and, according to defendant, he resided in another county. It is clear that defendant was not given permission to remove the vehicle from the State of Florida. Thereafter, defendant was found in possession of the vehicle in New Jersey on October 3, 1983. The vehicle displayed the same Florida license plate which had been issued to Mrs. Callahan who had reported her vehicle stolen when defendant failed to return it to her as required by the agreement.

On this appeal, defendant raises the following appellate arguments:

POINT I THE DEFENDANT DID NOT HAVE A FAIR OPPORTUNITY TO REVIEW THE DISCOVERY MATERIALS AND SHOULD HAVE BEEN GRANTED A CONTINUANCE.

POINT II THE DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL GUARANTEED HIM UNDER THE FEDERAL AND STATE CONSTITUTIONS.

POINT III THE PROOFS SUBMITTED AND THE REASONABLE INFERENCES WHICH CAN BE DRAWN THEREFROM FAIL TO SHOW MORE THAN CIVIL CONVERSION.

We first address defendant's second point. Defendant was indicted on November 17, 1983 and arraigned on November 28, 1983. A representative of the public defender's office appeared for defendant at the arraignment and received a copy of the discovery. At his arraignment, defendant stated that he had submitted a motion for the assignment of counsel through the court. Thereafter, defendant refused to complete the form 5A, required by the public defender to ascertain defendant's eligibility for representation. We are told that defendant based his refusal to complete the form 5A on constitutional grounds, but nothing has been argued in support of that contention.

On the day of trial, January 31, 1984, extensive colloquy ensued between the trial judge and defendant concerning representation by counsel. At that time, defendant stated:

Your Honor, I read the form, the form as to what you're talking about, and it specifically states that if a representative from the Public Defender's Office was to help me as guidance or whatnot, that that person would have the right to use any strategies or any ways of law that I would deem right or wrong, you know, and they would waive my rights thereto.

At that time, defendant read the following from a form:

He has the opinion [ sic ] of being represented by the office of the Public Defender, not receiving all of the services and facilities provided by the Public Defender's Office.

If he elects not to accept our representation, but to waive counsel and proceed pro se, then he must understand that he is voluntarily relinquishing the benefit that goes with such representation.

The case is cited is State v. Docking [ sic ], and under such circumstances, he may have the assistance of a legal advisor in the courtroom, but beyond that he cannot expect resources of the office of the Public Defender to be at his command.

The public defender appointed counsel to appear at trial as legal advisor for defendant. Defendant told the court "I just cite those cases, your Honor, ...


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