Submitted: January 22, 1998
Before Judges Baime, Wefing and Braithwaite.
The opinion of the court was delivered by: Braithwaite, J.A.D.
Following a jury trial, defendant was convicted of two counts of terroristic threats, N.J.S.A. 2C:12-3b (counts one and two); two counts of aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts three and four); and one count of resisting arrest, N.J.S.A. 2C:29-2a(1) (count five). At sentencing, the Judge merged count five with counts three and four and imposed concurrent probationary terms of five years with conditions, including 364 days incarceration in the Passaic County Jail.
Defendant now appeals and contends:
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE COURT REFUSED TO DIRECT TIMELY ASSIGNMENT OF COUNSEL THROUGH THE OFFICE OF THE PUBLIC DEFENDER OR BY PRO BONO ASSIGNMENT.
A. Court Improperly Denied Defendant's Continuing Motion for Assignment of Counsel.
B. Court Improperly Ruled that the Defendant had Waived his Right to Counsel.
C. Court Denied Defendant Effective Assistance of Counsel When It Failed to Appoint Standby Counsel in a Timely Manner. [Not Raised Below]
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, A MEANINGFUL TRIAL BY JURY AND DUE PROCESS OF LAW DURING TRIAL HELD IN HIS ABSENCE WHEN COURT- APPOINTED STANDBY COUNSEL FAILED TO INTERPOSE ANY DEFENSE AND WHEN THE TRIAL COURT FAILED TO COMPEL STANDBY COUNSEL'S ACTIVE PARTICIPATION IN THE TRIAL [Not Raised Below]
PROSECUTORIAL MISCONDUCT DENIED THE DEFENDANT A FAIR TRIAL AND VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND PRIVILEGE AGAINST SELF INCRIMINATION. [Not Raised Below]
COUNTS ALLEGING TERRORISTIC THREATS SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY. [Partially Raised Below]
A. Claimed Victims Never Testified They Even Knew That the Alleged Threats Had Been Made.
B. Directed Verdict Should have Been Entered on Counts Alleging Terroristic Threats Since the State's Evidence Conclusively Established That There Was No Belief in the Immediacy of the Alleged Threats or in the Likelihood that They Would Be Carried Out.
TRIAL COURT COMMITTED PLAIN ERROR IN THE SENTENCE IMPOSED ON THE DEFENDANT. [Not Raised Below] In a Supplemental Brief defendant urges:
SEARCH SHOULD BE SUPPRESSED SINCE JUDGE WHO ISSUED SEARCH WARRANT IMPROPERLY FAILED TO RECUSE HIMSELF FROM ISSUING SEARCH WARRANT. [Not Raised Below]
We reject defendant's contentions and affirm.
On September 9, 1992, Mary Guynn, an employee of the Appellate Division Clerk's office, received a telephone call from defendant who was inquiring about the status of an unrelated appeal. Guynn informed him that his brief was overdue and that the court was prepared to dismiss his case for failure to file a brief. Defendant told Guynn that when the Appellate Division dismissed his case, he was
gonna take the law into my own hands. I'm going to start serving Sal's law against all the assholes that have violated my rights and who have committed a crime against my person . . . . I'm taking all my tapes, all the transcripts I have and all the motion papers that I have; I am sending those out to the media so when Sal Ortisi starts doing all these bad negative things which on the surface would appear to be criminal in nature, everybody will know why I did, what I did . . . .
I'm gonna go out and buy shotguns in New York State and 38 , 30's and 308's. I'm taking the law into my own hands now. I'm gonna start with those jackasses in the Prosecutor's Office, Fava and Murphy and that's who I'm gonna start with. . . . I'm not playing by the rules anymore. The Order is coming out next week; things are gonna start happening the week after that.
After the conversation, Guynn reported the incident to Emille Cox, the Appellate Division Clerk.
George Metzler, an investigator in the Passaic County Prosecutor's Office, was informed of the incident and was assigned to investigate. Metzler went to defendant's home, in Wayne, with two detectives from the Wayne police department, John Reardon and Edward Ruzicka. Defendant, who knew Metzler and Reardon from prior encounters, called them by name when they entered his home. Metzler told defendant that they had information that he made a telephone threat against Prosecutors Fava and Murphy. Defendant asked the investigators to accompany him upstairs to his bedroom, where they could speak without his parents hearing the conversation. In the bedroom, defendant admitted that he made the call and the threats. Metzler told him that if he made any more threats he would be arrested. Defendant informed the investigators that he taped the conversation, and asked if they would like to hear it. They agreed to hear the tape. Defendant sat in a chair at his desk and began rummaging through many cassette tapes in and around the desk. As he was looking for the tape, he again threatened to get a gun and "take care" of Fava and Murphy. Metzler then told defendant that he was under arrest for making terroristic threats. Defendant became upset and said that he would resist if they tried to handcuff him. He then lunged from his chair, yelled something in Italian, and attacked Reardon, tackling him to the bed. After Reardon pinned back defendant's hands, defendant bit Reardon on the left shoulder. Metzler was also injured in the scuffle. Defendant was handcuffed. On the way out of the house, he apologized to Reardon, saying that he "just wanted to make this case stick." Both Reardon and Metzler received medical treatment for their injuries.
Because defendant never produced the tape containing the threat, Metzler applied for a search warrant, which was issued by the Wayne Municipal Court Judge. Metzler and several other law enforcement officials searched defendant's home and recovered the ...