On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. I-1664-05-99.
Before Judges Pressler, Ciancia and Lesemann.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2001
Following a jury trial, defendant Forrest Smith was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35- 10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3); and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. For sentencing purposes, the two third-degree offenses merged into the second-degree offense. Defendant was sentenced to a ten-year term and appropriate fees and penalties were imposed.
On appeal, defendant raises the following issues:
POINT I IT WAS ERROR FOR THE COURT TO CONDUCT THE TRIAL IN DEFENDANT'S ABSENCE.
POINT II TESTIMONY OF POLICE OFFICER RAMOS AND INVESTIGATOR NICHOLAS WAS IMPROPER AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT III IT WAS ERROR FOR THE COURT TO COMPEL THE ONLY DEFENSE WITNESS, KIM HOUSTON TO TESTIFY IN HANDCUFFS[.] (Not raised below)
POINT IV IT WAS ERROR FOR THE COURT TO REFUSE DEFENDANT'S REQUEST TO INSTRUCT THE JURY REGARDING PRIOR INCONSISTENT STATEMENTS OF A WITNESS.
POINT V THE DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR A NEW TRIAL PURSUANT TO R. 3:20-2. (Not raised below)
POINT VI THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND SHOULD BE REDUCED. (Not raised below)
The first issue raised is meritorious and requires reversal of defendant's conviction. Defendant's trial was originally scheduled to begin on January 25, 2000. Defendant was aware of that and had apparently received appropriate notice. See State v. Hudson, 119 N.J. 165 (1990). He had not, however, been told what would occur in the event of an adjournment or cancellation. As it turned out, the courts were closed on January 25 because of a snow storm.
On the morning of January 26, defendant was not in court and the trial judge decided to go forward without him. The judge acknowledged that defendant had no actual notice that a trial postponed from the 25th would begin on the 26th, but she believed defendant should have assumed that or, at least, should have inquired about how the court planned to proceed. Defense counsel had not attempted to reach defendant because, based on what she knew of the judge's schedule, she thought the trial would not start on the 26th. She also said that typically it took her about twenty-four hours to get in touch with the defendant. The ...