Before Judges Collester and Arnold.
The opinion of the court was delivered by: Arnold, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendant Christopher Robertson appeals the denial of his motion to suppress evidence seized during the warrantless search of a motor vehicle which the police stopped for speeding on the New Jersey Turnpike. We reverse and remand for a new suppression hearing because defendant was not present at the hearing, did not receive actual notice in court of the date of the hearing, and the waiver of his presence by counsel was ineffective.
The material facts are as follows. A substantial quantity of cocaine was seized during a warrantless search of a motor vehicle following a stop for speeding and weaving from lane to lane on the New Jersey Turnpike. A motion to suppress evidence was originally scheduled for August 9, 1996. The three defendants who were the occupants of the motor vehicle and their lawyers were present. The New Jersey State Trooper who made the motor vehicle stop and seized the evidence failed to appear so the motion was adjourned.*fn1 The motion judge told counsel and the defendants to come back on August 15, 1996. Apparently, sometime before August 15, 1996, the motion was rescheduled for August 29, 1996 because the Trooper and two of the defense attorneys were unavailable on August 15th. They were notified, by telephone, of the August 29th date. Counsel for defendant wrote to him informing him that the hearing was scheduled for August 29, 1996.
On August 29, 1996, the Trooper was present. Neither defendant nor his two co-defendants were present. One defense attorney, Mr. DeBlis, was also absent apparently because he had not been notified. Initially, it appears that the trial court believed that all defendants and defense counsel had been given notice. The following colloquy took place at the beginning of suppression hearing.
THE COURT: Matter of State versus Dedrick Robertson and Chris Robertson, et al, 96-1-49. Counsel note your appearance please.
MS. ROTHSTEIN: Nancy Rothstein on behalf of the State.
MR. WHITE: Louis White for Dedrick Robertson.
MR. CASALE: Mike Casale on behalf of defendant Chris Robertson.
THE COURT: For the record, defense attorney for Judith Anderson is not here, nor is his client. Both had notice of this date for the motion to suppress.
Beyond that, Mr. Christopher Robertson is not here and Dedrick Robertson are not here. Both again had notice of the motion to suppress.
Counsel, on behalf of Christopher Robertson and Dedrick Robertson, do you waive their appearances for the purposes of proceeding further?
MR. CASALE: Yes, your Honor.
THE COURT: All right. All right, is the State ready to proceed?
MS. ROTHSTEIN: Yes, your Honor.
THE COURT: All right, let's call your witness.
MS. ROTHSTEIN: The State calls Trooper Castellani to the stand. [Emphasis added.]
Later in the suppression hearing the issue of notice was again discussed. The following colloquy took place:
MR. CASALE: [counsel for defendant]
Can I address the legal point concerning - - I know the Court will be briefed why he wasn't here last time, as I understand it, the trooper told somebody, correct me if I'm mistaken, it's difficult to hear with the noise, that he told somebody that Thursday morning from the Essex County Prosecutor's Office at 9 a.m. that he wasn't going to show up.
My problem, if that's the case, in other words, if there was a communication from the trooper to the Essex County Prosecutor's Office at 9 a.m. on Thursday, why wasn't the Court advised and counsel advised at 9:30, ten o'clock to avoid us coming at 1:30, hanging around till 4:30?
I know obviously the Prosecutor wasn't told because he was here waiting along with us. So among all the other reasons, we want to add that for what it's worth as a basis for granting the motion.
MS. ROTHSTEIN: [Prosecutor]
Your honor, can I respond to that briefly?
MS. ROTHSTEIN: I think I have a little bit of a misscommunication about dates because the two weeks ago date is the date the trooper was testifying to, that was the date when we did contact everybody in the morning to schedule for today to prevent them from coming the second ...