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State v. Butler

Decided: December 20, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBIN W. BUTLER, DEFENDANT-APPELLANT.



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

Before Judges Michels, Keefe and Humphreys. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

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

Tried to a jury, defendant Robin W. Butler was convicted of possession of a handgun without having obtained a permit to carry the same, a crime of the third degree, in violation of N.J.S.A. 2C:39-5b (First Count) and possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1) (Second Count). The trial court denied defendant's motion for a new trial and committed him to the custody of the Commissioner of the Department of Corrections (Commissioner) for five years with a two and one-half year period of parole ineligibility and assessed a $30 Violent Crimes Compensation Board (VCCB) penalty for his conviction for unlawful possession of a handgun under the First Count. In addition, the trial court committed defendant to the custody of the Commissioner for a concurrent term of five years with a two and one-half year period of parole ineligibility, assessed a $30 VCCB penalty, a $1000 Drug Enforcement Demand Reduction penalty and a $50 laboratory fee, and suspended defendant's driver's license for twenty-four months for his conviction for possession of cocaine under the Second Count. On defendant's motion for a modification of his sentences, the trial court reduced the parole ineligibility periods imposed for each conviction from two and one-half years to two years. Defendant appeals and seeks a reversal of his convictions, or, alternatively, a modification of the sentences.

According to the State's proofs, on June 17, 1989, at approximately 12:30 a.m., Police Officers Stephen Chromanski (Chromanski) and William Sutera (Sutera) of the Fort Lee Police Department were on routine patrol in the vicinity of the Courtesy Motel situated on Route 4 eastbound in Fort Lee. Upon entering the parking area of the motel, they observed defendant sitting in a vehicle with its driver's side rear vent window broken and the engine running. At that time, the officers called police headquarters to report that they were about to investigate a suspicious vehicle.

Sutera approached the driver side of the vehicle while Chromanski proceeded to the passenger side. The officers asked defendant for his license, registration and insurance card. Defendant replied that he did not have proof of insurance or registration, and requested permission to exit the car so that he could remove his license from his jacket.

Before defendant could reach into his jacket, Sutera patted him down. During the pat-down Sutera felt what appeared to be a bullet proof vest. According to Sutera, it was unusual for him as a police officer, "to come across someone wearing a bullet proof vest," and this "made [him] fear for his safety." Sutera directed defendant to place his hands on top of the vehicle and Chromanski conducted a further search of defendant. Chromanski testified at trial that during the course of this search he felt a hard object in defendant's pocket which he believed to be a firearm speed loader. As a result, he searched defendant's pocket, finding and removing what was actually a plastic bag containing marijuana and a silver foil packet containing hashish.

Defendant was placed under arrest. Sutera then searched the area of the vehicle's glove compartment. While conducting this search, he discovered a blue .357 magnum Colt Python revolver loaded with six rounds of .357 magnum hollow point ammunition beneath the front passenger seat. Defendant was transported to the Fort Lee Police Station where he underwent a strip search, which exposed the bulletproof vest worn underneath his clothes.

Additionally, the search revealed a pack of "Easy Rider" rolling papers and a folded five-dollar bill containing cocaine.

I.

Defendant first contends that by conducting his criminal prosecution in his absence the trial court violated his rights under the Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution. Those provisions guarantee a criminal defendant "the right to be confronted with the witnesses against him." An essential element of this guarantee is the right of the accused to be present in the courtroom at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353 (1970); State v. Hudson, 119 N.J. 165, 171, 574 A.2d 434 (1990).

A defendant's right to be present at trial provides protections on both an individual and institutional level.*fn1 It affords a defendant the ability to communicate with counsel during trial, and assist in preparation of the defense and in the process of

cross-examination. Hudson, supra, 119 N.J. at 172. It includes the independent right of a defendant to represent himself or herself at all stages of a criminal proceeding if he or she elects to do so. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Institutionally, a defendant's right to be present at trial ensures public confidence in the courts as instruments of Justice. United States v. Peterson, 524 F.2d 167, 184 (4th Cir. 1975), cert. denied sub nom., Smith v. United States, 424 U.S. 925, 96 S. Ct. 1136, 47 L. Ed. 2d 334 (1976); Hudson, supra, 119 N.J. at 172.

However, as early as Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912), the United States Supreme Court concluded that a defendant's presence at every stage of a noncapital trial was not "indispensable." The Supreme Court in Diaz, supra, emphasized the potentially disruptive effect of a rule ...


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