On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication February 24, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
Tried in absentia defendant was convicted of burglary, N.J.S.A. 2C:18-2 (count one), and attempted theft, N.J.S.A. 2C:5-1, 2C:20-3 (count two). He was sentenced to two consecutive five-year terms in the custody of the Commissioner of Corrections and to pay monetary assessments for those offenses and two non-indictable convictions entered by the trial Judge as fact-finder. On this appeal, defendant argues, among other things, that "the trial court erred in trying the defendant in absentia by depriving him of his due process and common law right to fair proceedings and violating R. 3:16." We agree that the convictions must be reversed because of the trial in absentia and remand for a new trial.
It is undisputed that defendant, then an inmate of the Union County Jail, was in court on March 13, 1995 and notified at that time of the June 12, 1995 trial date. According to defense counsel's uncontested certification in support of his unsuccessful motion for leave to appeal filed on June 6, 1995:
3. During the week prior to June 5, 1995, [the trial j]udge rescheduled Mr. Mahone's trial from June 12, 1995 to June 5, 1995, one week earlier. [The Judge] discussed the matter with myself and ASSISTANT PROSECUTOR CAROL BERGER (hereinafter Ms. Berger). At the time, I was under the impression that Mr. Mahone was still incarcerated in the Union County Jail.
4. On Friday, June 2, 1995, I attempted to visit Mr. Mahone in the Union County Jail and determined he was not housed there. I informed [the Judge] and Ms. Berger that Mr. Mahone was no longer in the Union County Jail. That same day I asked my secretary, DEBRA KACHNOWSKI (hereinafter Ms. Kachnowski) to determine whether Mr. Mahone was incarcerated and, if not, to contact him by telephone and inform him of the new court date.
5. Later that day, Ms. Kachnowski informed me that Mr. Mahone was not incarcerated and that she had informed him by telephone of the court date.
6. On Monday, June 5, 1995, Mr. Mahone did not appear in Court. I requested that this matter begin trial as originally scheduled [on June 12, 1995]. [The Judge] informed me that he intended to conduct Mr. Mahone's trial in absentia.
The secretary of defendant's attorney further certified:
2. On Friday, June 2, 1995, Douglas T. Kabak, Assistant Deputy Public Defender, an attorney employed in the Union Region, requested that I call the Union County Jail and State Classification to determine whether or not the above defendant, Shawn Mahone, was incarcerated. He also informed me that if Mr. Mahone was not incarcerated, I should try to reach him by using two phone numbers listed on our file jacket and advise him to be in court on Monday, June 5, 1995 before [the trial Judge] at 9:00 a.m. dressed and ready for trial.
3. Mr. Mahone was not, in fact, incarcerated and I was able to reach him by telephone on Friday afternoon, June 2, 1995. A male answered the phone and identified himself as Shawn Mahone. I identified myself and advised him that he was required to appear in court on June 5, 1995 and not on June 12, 1995. Mr. Mahone asked why he had to appear in court on June 5, 1995 and I advised him that the Judge wanted to move his trial up. I ...