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State v. Kordower

Decided: January 12, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SYLVIA KORDOWER, DEFENDANT-APPELLANT



On appeal from the Superior Court.

Shebell, Gruccio and Landau. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendant appeals her jury convictions, as well as four contempt convictions, following the lengthy trial of an indictment against her, during which she represented herself.

Defendant was arrested on July 8, 1983, immediately after she stabbed her attorney at his law office. On August 18, 1983, the Union County Grand Jury returned an indictment charging her with second-degree aggravated assault (N.J.S.A. 2C:12-1b(1)); third-degree aggravated assault (N.J.S.A. 2C:12-1b(2)); attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3); unlawful possession of a weapon (N.J.S.A. 2C:39-5d), and possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d). Defendant entered a plea of not guilty to the indictment on September 16, 1983.

On September 30, 1983, an assistant deputy public defender, assigned to represent defendant, filed a notice of insanity defense and a notice of mental disease or defect. The attorney also filed motions for a change of venue, for additional discovery and to compel the prosecutor to allow defendant to be interviewed by the pretrial intervention (PTI) program. The case was pretried on October 3, 1983, and on October 21, 1983 an order requiring the prosecution to furnish additional discovery was entered. On November 4, 1983, the motions for change of venue and for a PTI interview were withdrawn.

On July 30, 1984, defendant filed pro se motions for substitution of attorney, for acquisition of the transcripts of all hearings and for a "mistrial" based on the grand jury proceedings. The motions were heard on August 9, 1984. The motion judge relieved the public defender as counsel for defendant but directed counsel to act as defendant's legal advisor. He denied defendant's other motions, including her request for an adjournment of the trial date set for September 4, 1984. On August 31, 1984, the criminal assignment judge heard and denied defendant's subsequent motion for an adjournment.

Trial was held beginning on September 4, 1984 and ending on October 23, 1984. The first jury selected was dismissed when the court granted the State a one week adjournment from September 10 to September 17, 1984 to prepare to meet defendant's psychiatric defenses. Defendant appeared pro se with her assigned legal advisor. The jury found defendant guilty on all charges except the attempted murder. Defendant was held in contempt by the trial judge on four occasions, specifically on October 5, 10, 16 and 17, 1984.

On March 15, 1985, the trial judge merged the third-degree aggravated assault into the second-degree aggravated assault conviction and sentenced defendant to seven years' imprisonment on that conviction. He also merged the unlawful possession of a weapon conviction into the possession of a weapon for an unlawful purpose conviction and sentenced defendant to a concurrent term of four years on that conviction. Violent Crimes Compensation Board penalties totaling $2,100 were imposed.

On April 12, 1985, defendant, represented by counsel, appeared before the trial judge for sentencing on the contempt charges. The judge sentenced her on the first contempt to a $100 fine. On the second and third contempts he sentenced her to 60 days imprisonment on each to run consecutively to each other and consecutively to the sentence imposed on the jury convictions. He dismissed the fourth contempt charge.

Defendant now alleges:

POINT I: DEFENDANT WAS DENIED THE RIGHT TO COUNSEL.

A. THE DEFENDANT DID NOT WAIVE THE RIGHT TO COUNSEL.

B. DEFENDANT DID NOT HAVE EFFECTIVE ASSISTANCE OF COUNSEL.

1. THE COURT SHOULD HAVE APPOINTED A LAWYER TO REPRESENT DEFENDANT.

2. THE LEGAL ADVISOR DID NOT SATISFY THE REQUIREMENT OF EFFECTIVE ASSISTANCE OF COUNSEL.

C. THE COURT SHOULD HAVE GRANTED THE DEFENDANT AN ADJOURNMENT TO SEEK SUBSTITUTE COUNSEL.

POINT II: THE COURT ABUSED ITS DISCRETION IN EXCLUDING AND/OR LIMITING RELEVANT EVIDENCE WHICH WAS CRUCIAL TO THE DEFENSE.

POINT III: THE DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL.

A. THE JUDGE WAS NOT IMPARTIAL DURING THE TRIAL.

B. THE PROSECUTOR'S CONDUCT THROUGHOUT THE TRIAL WAS IMPROPER AND PREJUDICIAL.

POINT IV: THE COURT ERRED IN ITS DETERMINATION AND IMPOSITION OF A CUSTODIAL SENTENCE.

A. THE COURT IMPROPERLY FOUND THAT THE AGGRAVATING FACTORS OUTWEIGHED THE MITIGATING FACTORS.

B. THE IMPOSITION OF A CUSTODIAL SENTENCE CONSTITUTED A SERIOUS INJUSTICE.

POINT V: DEFENDANT WAS DENIED DUE PROCESS IN THE ADJUDICATION OF AND SENTENCING FOR CONTEMPT.

A. DEFENDANT WAS ENTITLED TO NOTICE AND A HEARING BEFORE BEING ADJUDGED IN CONTEMPT.

B. DEFENDANT WAS ENTITLED TO A HEARING ON MENS REA EVEN IF SHE WAS IN DIRECT CONTEMPT OF COURT.

C. THE COURT ACTED ARBITRARILY AND ABUSED ITS DISCRETION IN IMPOSING EXCESSIVE SANCTIONS FOR CONTEMPT.

A detailed recitation of the facts surrounding the indictment is unnecessary in light of our determination that defendant was denied her constitutional right to counsel. Suffice it to note that defendant interposed an insanity defense and at trial produced a psychiatrist, who testified that at the time of the incident defendant was suffering from depression, and was in a vulnerable state of mind as a result of years of having been subjected to extreme mental and physical stress. Defendant also suffered from various health ailments, which the psychiatrist believed contributed to her stress. The psychiatrist maintained that defendant's condition was further aggravated by several adverse rulings in her protracted matrimonial litigation which she received during the days preceding the attack upon her attorney. These events precipitated "an acute psychotic breakdown." The psychiatrist asserted that defendant had no intent to harm her attorney and that at the time of the acute psychosis she could not differentiate between right and wrong

or understand the nature and quality of her acts. He did not believe that she was even aware of what she was doing.

THE RIGHT TO COUNSEL

Defendant contends that she was denied her Sixth Amendment right to counsel when, after she became dissatisfied with her assigned public defender, the court refused to appoint another lawyer and refused her request for an adjournment to obtain substitute private counsel. She insists that her decision to proceed pro se was not a waiver of her right to counsel and that the appointment of a legal advisor did not satisfy the requirement of effective assistance of counsel.

Following the pretrial proceedings of October 3, 1983, the assistant public defender assigned to defendant's case communicated to defendant a plea offer made by the State. Defendant rejected the offer and stated she wanted to go to trial. A trial date of December 5, 1983 was set. However, nothing further transpired to defendant's knowledge until she received a mailgram, possibly sometime in July 1984, in which the public defender indicated that she had tried to call and that defendant should call her. Upon contacting her attorney, defendant was informed that a peremptory trial date of September 4, 1984 had been set.

On August 9, 1984, defendant appeared before the motion judge seeking a substitution of attorney. She explained that the public defender had not found out the names of witnesses or done anything to prepare the case for trial. Defendant stated that the public defender's "only goal, which was way back in September, was that there was one doctor in the State of New Jersey and only one doctor who was fit to examine me or who would." Defendant objected to being examined by "any doctor who has any connection with the State of New ...


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