On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Before Judges Baime, Kestin and A. A. Rodriguez.
[278 NJSuper Page 81] The opinion of the court was delivered by
At issue is whether the Law Division correctly dismissed with prejudice defendant's motion to suppress evidence because he escaped from prison and, although recaptured, was not available on the scheduled hearing date. We hold that defendant's unavailability did not warrant the sanction of a dismissal with prejudice. The Law Division should have either postponed the hearing or proceeded in absentia.
The facts are not in dispute. The Atlantic City police arrested defendant on May 14, 1991. A warrantless search of his person revealed cocaine, heroin and a knife. The grand jury returned an indictment charging defendant with possession of cocaine and heroin (N.J.S.A. 2C:35-l0a(1)), possession of the same drugs with intent to distribute (N.J.S.A. 2C:35-5a(l) and N.J.S.A. 2C:35-56-5b(3)), and possession of a weapon not manifestly appropriate for its lawful uses (N.J.S.A. 2C:39-5d). Defendant filed a timely motion to suppress pursuant to R. 3:5-7. While that motion was pending, defendant escaped from prison. Defendant was apprehended in New York two days before the scheduled hearing date and, on the day of the hearing, remained in the custody of New York authorities. At the hearing, defendant's attorney expressly waived defendant's right to be present. Without explanation and over defense counsel's objection, the Law Division dismissed with prejudice defendant's motion to suppress. Defendant later pleaded guilty to escape and to possession of cocaine with intent to distribute. He was sentenced to an aggregate term of eight years with a two year parole disqualifier.
On appeal, defendant contends that the Law Division erroneously dismissed with prejudice his motion to suppress evidence. We have found no reported opinion dealing with the precise issue. In a related context, both the federal and state courts have long "declined to review the convictions of escaped criminal defendants." Estelle v. Dorrough, 420 U.S. 534, 537, 95 S. Ct. 1173, 1175, 43 L. Ed. 2d 377, 380 (1975); see also Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970); Gov't of
the Virgin Islands v. James, 621 F.2d 588 (3d Cir. 1980); State v. Rogers, 90 N.J. 187, 447 A.2d 537 (1982); State v. Prince, 140 N.J. Super. 418, 356 A.2d 428 (App. Div. 1976); State v. Clerk of Bergen, 25 N.J.L. 209 (Sup. Ct. 1855); Comment, The Disposition of Writ of Certiorari When Petitioner Flees Jurisdiction, 18 Geo. Wash. L. Rev. 427 (1950). In most jurisdictions, courts will dismiss a fugitive's appeal. State v. Rogers, 90 N.J. at 189.
This well-settled policy rests on several bases. First, there can be no assurance that any judgment rendered by an appellate court can be enforced against an escaped defendant. Ortega-Rodriguez v. United States, 507 U.S. ____, ____, 113 S. Ct. 1199, 1203, 122 L. Ed. 2d 581, 591 (1993); see also Eisler v. United States, 338 U.S. 189, 69 S. Ct. 1453, 93 L. Ed. 1897 (1949); Bonahan v. Nebraska, 125 U.S. 692, 8 S. Ct. 1390, 31 L. Ed. 854 (1887); Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876). Second, defendant's escape from custody may be considered an abandonment of his right to appeal, thus "disentitling" him from calling upon the court's resources. Molinaro v. New Jersey, 396 U.S. at 366, 90 S. Ct. at 498-99, 24 L. Ed. 2d at 588; State v. Rogers, 90 N.J. at 190; State v. Prince, 140 N.J. Super. at 420. Third, a dismissal "serves an important deterrent function and advances an interest in efficient dignified appellate practice."Ortega-Rodriguez v. United States, 507 U.S. at ____, 113 S. Ct. at ____, 122 L. Ed. 2d at 593.
We decline the State's invitation to extend this rule to authorize the dismissal with prejudice of an escaped defendant's motion to suppress evidence. The policies that underlie our practice of dismissing a fugitive defendant's appeal are less compelling in this context.
An order granting or denying a motion to suppress is fully enforceable notwithstanding the defendant's failure to appear. In appropriate circumstances, "a defendant's knowing, voluntary, and unjustified absence before or after trial has commenced does not prevent trial ...