On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication April 10, 1997. As Corrected June 17, 1997.
Before Judges Michels, Kleiner and Coburn. The opinion of the court was delivered by Michels, P.j.a.d.
The opinion of the court was delivered by: Michels
The opinion of the court was delivered by
Tried to a jury in absentia, defendant Ruel Ellis was found guilty of (1) attempted murder in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (First Count); (2) three counts of aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (Second, Fifth, and Eighth Counts); (3) three counts of aggravated assault in violation of N.J.S.A. 2C:12-1b(2) (Third, Sixth, and Ninth Counts); (4) three counts of aggravated assault in violation of N.J.S.A. 2C:12-1b(4) (Fourth, Seventh, and Tenth Counts); and (5) possession of a handgun with the purpose to use it unlawfully against the person of another in violation of N.J.S.A. 2C:39-4a (Eleventh Count).
Defendant's motion for a new trial on the ground that his constitutional rights were violated by virtue of his absence from the trial was denied by the trial court. The trial court then merged defendant's convictions for aggravated assault under the Second, Third, and Fourth Counts and his conviction for possession of a weapon with the purpose to use it unlawfully against the person of another under the Eleventh Count into his conviction for attempted murder under the First Count. The trial court also merged defendant's convictions for aggravated assault under the Sixth and Seventh Counts into his conviction for aggravated assault under the Fifth Count and merged defendant's convictions for aggravated assault under the Ninth and Tenth Counts into his conviction for aggravated assault under the Eighth Count. For defendant's attempted murder conviction under the First Count, the trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for twenty years with a ten-year period of parole ineligibility and imposed a $30 Violent Crimes Compensation Board (VCCB) penalty on defendant. In addition, for defendant's aggravated assault convictions under the Fifth and Eighth Counts, the trial court committed defendant to the custody of the Commissioner for concurrent terms of ten years and assessed defendant with VCCB penalties totaling $60. Defendant appealed.
Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds:
THE TRIAL COURT ERRED BY RULING THAT THE TRIAL SHOULD COMMENCE AND PROCEED TO ITS CONCLUSION IN THE DEFENDANT'S ABSENCE.
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III : THE JURY'S VERDICTS WITH RESPECT TO COUNTS I THROUGH XI WERE INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE AS A RESULT OF ITS NOT GUILTY VERDICT WITH RESPECT TO COUNT XII.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant raises the following additional issue:
THE TRIAL JUDGE ABUSED ITS DISCRETION BY FAILING TO QUESTION THE JURY AS TO WHETHER OR NOT THEY HAD THE OPPORTUNITY TO REVIEW ANY OF THE MATERIALS PLACED ON THE EVIDENCE TABLE.
We have carefully considered these contentions and all arguments advanced in support thereof by defendant through counsel and in his pro se supplemental brief and find that they are without merit and warrant only the following Discussion in a written opinion. R. 2:11-3(e)(2).
Defendant contends that the trial court erred in permitting the trial to proceed in his absence since his absence was not knowing, voluntary, and unjustified. Defendant also claims that, for the same reason, the trial court erred in denying his motion for a new trial. Defendant argues that he was never expressly informed on the day of trial that if he was not present, the trial would proceed in his absence. In addition, defendant asserts that, during the motion for a new trial, the prosecutors's statement that Judge DiGisi warned defendant what could occur if he did not appear and the trial court's recollection that such warnings were standard for Judge DiGisi, were not definitive proof that he (defendant) was so warned because both the prosecutor and the trial court could have erred. Finally, defendant claims that he did not deliberately absent himself from the trial because he would not have wasted his time preparing the case for trial with his attorney and he would never have appeared in court on September 30, 1991, if it had been his intention to absent himself from the trial.
The record shows that at defendant's arraignment on June 7, 1991, the following exchange took place between Judge DiGisi and defendant:
The Court: I further advise you that you have an absolute right to be present at every stage of the proceeding.
If you do not appear at any subsequently established trial date, your case can proceed without you being present or may proceed without you being present. A warrant will be issued for your arrest and your bail will be canceled and forfeited. Do you understand that?
At the calendar call of defendant's case on the morning of September 30, 1991, the following exchange took place among Judge DiGisi, defendant, and the prosecutor:
The Court: Is your lawyer here, Mr. Ellis?
The defendant: No, I don't see him.
[The prosecutor]: Judge, he called. . . . and told me he would be here at around ten o'clock. He told me he called your chambers.
[The prosecutor]: I am ready Judge.
The Court: Good. I'm ready for you too. We'll get you out right away at ten o'clock.. . .
[The prosecutor]: Tony Fusco is ...