On appeal from the Superior Court, Law Division, Essex County.
Antell, O'Brien and Keefe.
Defendant appeals from his conviction of two counts of first degree aggravated sexual assault (N.J.S.A. 2C:14-2), first degree armed robbery (N.J.S.A. 2C:15-1), second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), fourth degree possession of a weapon (a letter opener) under circumstances not manifestly appropriate for a lawful purpose (N.J.S.A. 2C:39-5d), and second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a), upon which he received an aggregate sentence of 45 years with a 22 1/2 year period of parole ineligibility. We reverse and remand on condition, because the trial judge failed to determine whether defendant had knowingly and intelligently waived his constitutional right to counsel.
After he was indicted on December 4, 1980, defendant became a fugitive. He was finally located in and extradited from Texas in 1986. He was convicted on December 17, 1987, and sentenced on March 7, 1988. On this appeal, defendant raises the following legal arguments:
POINT I The defendant was denied his right to counsel when the court failed to determine he had knowingly and intelligently waived that right.
POINT II The prosecutor's reference to the defendant's pro se representation was improper.
POINT III The court erroneously limited the defense cross examination of the state's key witness, [the victim].
POINT IV The state failed to prove that the defendant's prior convictions were admissible to affect his credibility and should have been excluded by the court.
POINT V The court's failure to charge the jury on the lesser included offenses of criminal sexual contact and sexual assault was erroneous.
POINT VI The court's failure to excuse the juror who admittedly knew a witness in the case was error.
POINT VII The sentence imposed on the defendant was both improper and manifestly excessive.
In a supplemental pro se brief, defendant raises the following additional legal arguments:
Point I DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION AND THE PRODUCTION OF WITNESSES.
Point II POSSESSION OF A HANDGUN FOR UNLAWFUL PURPOSES AND POSSESSION OF A LETTER OPENER FOR UNLAWFUL PURPOSES REQUIRE SEPARATE VERDICTS.
Point III DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE COUNTS ONE AND TWO WERE NOT MERGED WITH COUNT FOUR.
In an addendum to his supplemental pro se brief, defendant raises as a fourth point:
Point IV DEFENDANT'S SENTENCE IS EXCESSIVE AND IT WAS NOT IMPOSED ACCORDING TO PROPER SENTENCING.
We agree with defense counsel's first legal argument since the trial judge failed to determine whether defendant knowingly and intelligently waived his right to counsel. In spite of the substantial evidence of defendant's guilt and the unfortunate circumstance that reversal of the convictions will necessitate retrial of an event which occurred more than ten years ago and again put the victim through the horror of the event, we are obliged to reverse and remand for a new trial based upon applicable state court precedents and opinions of the United States Supreme Court.
Since reversal is required, it is unnecessary to detail the facts which gave rise to the charges. Suffice it to say that according to the evidence the victim was subjected to substantial aggravated assault, aggravated sexual assault, and other offenses at the hands of defendant. However, we detail the circumstances leading up to defendant's trial as they relate to representation by counsel.
After extradition from Texas, defendant entered a not-guilty plea on March 13, 1987. On that date, he was represented by Mr. Fullilove, an attorney from the public defender's office, although he argued some motions pro se. Defendant next appeared before the trial judge on April 10, 1987, again accompanied by Mr. Fullilove, who advised the court that defendant had presented a letter stating that Mr. Anthony Blasi had been appointed as his pool attorney, but apparently Mr. Blasi chose not to represent defendant.
On May 22, 1987, defendant and Mr. Fullilove again appeared before the trial judge and the following exchange took place:
THE COURT: Mr. Crisafi, we have Mr. Fullilove who, I understand, has been designated to represent you.
THE DEFENDANT: I decline representation of this counsel at this time. I have --
THE COURT: You mean you want to represent yourself?
THE DEFENDANT: No, not really. I would like representation, and if it's necessary, I will go in pro se rather than --
THE COURT: It's up to you, but I'm not going to allow you to make a choice as to who is ...