The opinion of the court was delivered by: Justice LaVecchia
ON CERTIFICATION TO Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
This case involves a defendant who was tried and convicted in absentia on charges related to his alleged participation in drug trafficking. We must determine whether it was proper to have proceeded with trial in defendant's absence. In an unpublished opinion, the Appellate Division affirmed defendant's conviction. We granted certification, 164 N.J. 189 (2000), to review whether defendant waived his right to be present at trial.
Defendant was indicted in July 1995 for first-degree possession of a controlled dangerous substance with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), and third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10a(1). The indictment alleged that on April 14, 1995, defendant, an Ohio resident, and co-defendant Robert Lovejoy were transporting cocaine when New Jersey State troopers stopped and searched their vehicle and discovered the controlled dangerous substance.
Defendant pled not guilty at his arraignment on September 5, 1995. The trial court directed him to appear on October 16, 1995, for a pretrial status conference. Defendant signed the order entered on September 5, 1995, which stated in part:
The parties shall next appear and be ready for . . . another status conference on October 16, 1995. NO FURTHER NOTICE WILL BE PROVIDED. If you do not appear on the next scheduled date or on the trial date, you will lose any bail that has been posted; a bench warrant will be issued for your arrest; and the trial shall proceed without you.
Defendant appeared for that October 16, 1995, pretrial conference, and the trial court directed him to appear next at a hearing scheduled for November 17, 1995, on defendant's motion to suppress evidence. Defendant signed that pretrial conference order, which informed defendant in part:
The parties shall next appear and be ready for [a] Motion . . . on November 17, 1995. . . . If you do not appear on the next scheduled date or on the trial date, you will lose any bail that has been posted; a Bench Warrant will be issued for your arrest; and the trial shall proceed without you.
That October 1995 appearance is the last occasion clearly indicated in the record that defendant actually was present in court until September 1997, which was after defendant's trial in absentia. That no trial date was set at either of the two in- court appearances made by defendant in September and October 1995 is undisputed.
The progression of the case stalled immediately after that second in-court appearance by defendant in October 1995. Numerous dates for the motion to suppress were adjourned over the ensuing months at the request of either or both defendants. Defendant was never in court for any of those dates. The motion to suppress finally was heard on March 31 and April 1, 1997. The trial court proceeded on the basis that defendant's counsel had consented throughout to continue defendant's Hudson charge pursuant to Rule 3:16 and State v. Hudson, 119 N.J. 165, 181-82 (1990).
Prior to taking testimony on the motion to suppress, the trial court noted that "pursuant to Hudson Hall, the defendant . . . is not here and we're proceeding in his absence based on representation — [defendant] is not here and [defense counsel has] been unsuccessful in getting him here . . . ." Defendant's counsel then informed the court that counsel had been in contact with the person to whom [defendant] asked me to notify . . . of any court dates, and that person was advised by me and has been advised on several occasions of the trial dates in this matter, and she has attempted to contact [defendant]. As far as I know she hasn't been successful in doing that, but she was notified, and the letter that I sent to [defendant] was returned, no longer at the address that he [gave] . . . to me.
At that point, the prosecutor stated:
On October 16th, 1995, defendant Lawrence Whaley was given in writing at the pretrial/status conference an order, the date for the motion to suppress on November 17, 1995, and at that time, Judge, it's also listed on that order that if defendant did not appear on that date, that trial shall proceed in his absence, a warrant issue. Defendant did sign that form, subsequent to that there have been numerous adjournment dates, starting from November ?95 there were nine more adjournment dates ?till today's date, and on several of those occasions, [counsel for both defendants] had made representations that ...