On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication May 12, 1995.
Before Judges Gaulkin, Baime and Kestin. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
A jury found defendant guilty of third degree aggravated assault upon a police officer (N.J.S.A. 2C:12-1b(5)) and fourth degree resisting arrest (N.J.S.A. 2C:29-2a). The trial Judge imposed an extended term of seven years with a two year parole disqualifier on the conviction for aggravated assault and a concurrent twelve month sentence on the conviction for resisting arrest. This appeal followed.
We need not recount the facts at length. The jury could reasonably have found from the evidence that defendant assaulted Long Branch police officer Dennis Smentkowski as the officer attempted to arrest him on an outstanding warrant. Thomas Clancy, a taxi driver, summoned Smentkowski to assist him in a dispute with defendant about a fare. Smentkowski recognized defendant and knew there was an outstanding warrant for his arrest. The officer, who was in uniform and on patrol, attempted to follow defendant into a nearby convenience store. Upon observing Smentkowski, defendant kicked the door into the officer's body. After regaining his balance, Smentkowski grabbed defendant and announced he was under arrest. Defendant then struck the officer several times and attempted to reach for Smentkowski's gun. After a brief struggle, defendant escaped but was arrested the next day. It is against this factual backdrop that we consider defendant's contentions.
Defendant argues (1) he was deprived of his constitutional right to be present at trial, (2) plain error was committed by the trial Judge's failure to instruct the jury on "attempted" aggravated assault, (3) the trial Judge erroneously refused to charge the jury on simple assault, (4) the convictions for aggravated assault and resisting arrest should have been merged, and (5) the sentence was excessive. Only one of these contentions requires extended Discussion - that dealing with defendant's failure to appear at trial.
Unfortunately, the truncated record contains only scanty facts regarding the trial Judge's decision to proceed with trial in the defendant's absence. The case was apparently scheduled for trial on a Monday. Despite a written notice that was sent to defendant's address, defendant did not appear. Because defendant's attorney was engaged in another case, the trial was rescheduled for that Thursday. Again, defendant failed to appear.
On the morning of the trial, defense counsel told the trial Judge that he had spoken with defendant's mother the night before and she claimed he had never received the written notice. The attorney added that defendant's mother promised to convey the message to the defendant. He noted that defendant's girlfriend later confirmed to him that defendant had received the information and was on his way" to court.
Based upon these facts, the trial Judge decided to proceed in absentia. Defendant was arrested on a bench warrant and appeared on the last day of trial. No inquiry was made respecting his prior failure to appear. Defendant failed to move for a new trial, and thus Our knowledge of the circumstances surrounding his absence is gleaned from this brief and sketchy colloquy between the trial Judge and defense counsel.
The right of the accused to be present in the courtroom at every stage of the trial Is an essential ingredient of our organic law. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh'g denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934); Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1892); State v. Smith, 29 N.J. 561, 150 A.2d 769, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959). However, a defendant may knowingly and voluntarily waive his constitutional right to be present at trial. Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912); United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). In State v. Hudson, 119 N.J. 165, 574 A.2d 434 (1990), our Supreme Court held that "a defendant's inexcusable absence from trial, under circumstances demonstrating knowledge of the time and place of trial . . . constitutes a sufficient basis for a trial court's decision to proceed." Id. at 183; see also State v. Butler, 278 N.J. Super. 93, 650 A.2d 397 (App. Div. 1994).
Several rule changes followed in the wake of the Court's opinion in Hudson. See generally, Report of the Supreme Court's Criminal Practice Committee, 130 N.J.L.J. 558 (1992). R. 3:9-1 as amended requires the Judge to inform the defendant at arraignment of his right to be present at trial and the consequences of his failure to appear, including the possibility that the trial will take place in his absence. Other amendments relate to a defendant's express or implied waiver of his right to be present at trial. R. 3:16 originally distinguished between a defendant absent before trial has begun, and one who leaves after after commencement of the proceedings, permitting an implied waiver in the latter circumstance but not the former. Consistent with Hudson, that Rule was amended to permit a waiver both before and after the commencement of the trial. In its present form R. 3:16 reads as follows:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court that his or her trial will commence that day, or on the next court date, or (2) trial has commenced in ...