Before Judges Kimmelman, Ciancia and Arnold.
The opinion of the court was delivered by: Kimmelman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
The issue on this appeal is whether defendant's constitutional right to a trial by jury was violated when he failed to appear for trial on his indictment for possession of a controlled dangerous substance (CDS) and his counsel (Office of the Public Defender) waived trial by jury. The waiver was accepted by the trial judge. Defendant was found guilty at the ensuing bench trial. He was sentenced to a five-year term concurrent with sentences aggregating fifteen years of incarceration with six years of parole ineligibility imposed with respect to four other pending indictments. Defendant had pled guilty to the other four indictments pursuant to the terms of a plea bargain agreement made with the county prosecutor's office.
Factually, defendant's indictment for possession of CDS was scheduled for trial on March 26, 1997. Defendant did not appear for trial on that date. In a pretrial colloquy between the judge and counsel, defendant's counsel objected to the judge proceeding with the case without defendant's presence. According to defendant's counsel:
I can . . . not say that I have had any contact with Mr. Mazza to confirm or deny or give any information to the court about whether his absence here is voluntary or not. However, Judge, I am going to put an objection on the record to proceeding in his absence. When these matters were cutoff, the March 24 date was set. However, it was made clear to Mr. Mazza in my discussions with him that I expected to be trying the arson case first, not the drug case. Unfortunately or fortunately for Mr. Mazza the plea form that was filled out on . . . December 3rd doesn't specifically refer to the fact that the trial can be tried without him if he did not appear, and I have no notes or recollection that that was ever said to Mr. Mazza.
The judge denied defendant's counsel's request to adjourn the proceedings stating that "it appears for all intents and purposes with no communication from Mr. Mazza that his not appearing here is an effort on his part to avoid prosecution."
Immediately after the judge's denial of the adjournment, defendant's counsel requested a trial without a jury. According to defendant's counsel, a bench trial was requested because:
. . . I'm going to be making dozens of decisions that I would normally be consulting my client about, and the decision to proceed without a jury is one of those decisions. If he was here I would be consulting him about it and I would most likely be recommending to proceed without a jury. There's no way for me to know what his decision would be concerning that, but I believe that under the circumstances of you making a decision [that] we can proceed without him and that he's voluntarily absented himself that he's basically allowing me to make those decisions for him. I believe this case should proceed without a jury, and that's what I'm requesting.
In granting the defendant's counsel's request for a bench trial, the court stated:
The rule certainly does provide that with respect to waiver of a jury trial that the - if a defendant is here he must waive it freely and voluntarily, and the waiver must be in writing.
We do not have the defendant here, and counsel for the defendant has stated that were the defendant here she would have recommended to him that he be tried without a jury. She is now in a position where she must make decisions alone, and I don't believe there are any cases at least in this state that deal with this issue as to whether a defendant who's going to be tried in absentia can be tried without a jury on an indictable charge, but under the circumstances here, the court will grant the application and the case will be tried without a jury.
At the bench trial the prosecution presented two witnesses. The defense presented none. After the presentation of the case, the judge stated that he "conclud[ed] beyond a reasonable doubt that [defendant was] guilty of possessing both the heroin and the cocaine." The judge did not set a date for sentencing because defendant was yet to be ...