On appeal from the Superior Court of New Jersey, Law Division, Essex County, 01-11-04566-I.
The opinion of the court was delivered by: Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted December 1, 2004
Before Judges Axelrad, R. B. Coleman and Holston, Jr.
Defendant Alquan Dwight, who was tried twice in absentia, appeals from his conviction of first degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one), second degree aggravated assault, N.J.S.A. 2C:12-1b (count two), third degree possession of a weapon, N.J.S.A. 2C:39-5b (count three) and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). We affirm.
In his appeal, defendant raises the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED DEFENSE COUNSEL'S MOTION TO ADJOURN THE SECOND TRIAL WITHOUT DATE.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE'S MOTION FOR EXTENDED TERM SENTENCING.
We have carefully considered defendant's arguments in light of the facts and applicable law, and we are not persuaded by defendant's assertions of error.
The matter arose out of a shooting in the early morning hours of December 18, 2000. The second jury obviously accepted the State's proofs that after a fight between Warren Comer a/k/a Shariff Drake and several other patrons of the Chaz Lounge in Newark, Comer grabbed defendant by the shirt and someone hit defendant in the head with a beer bottle. Defendant initially became furious and demanded that Comer tell him who had hit him. Comer said he did not know and defendant seemed to calm down. Later, defendant and Comer, who had known each other for about ten years, walked with several others to defendant's sister's house, and defendant yelled for someone inside to call a cab for Comer. After waiting a brief time, defendant went inside, ostensibly to get a jacket, and when he returned, he pulled a gun and shot the unarmed Comer in the neck, paralyzing him from the chest down. He dragged Comer down the street and left him in front of a different residence on that block.
Defendant concedes he had notice of the first trial date and was informed in the pretrial memorandum that if he failed to appear, the trial could be conducted in his absence and he would be bound by the jury's verdict. We note specifically the pretrial memorandum, signed by defendant, included the following provisions:
1. I have been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for trial, the Court has the right to conduct the trial in my absence. If my case is not reached for trial on that date the judge will schedule a new date for trial. If I am not present on the original trial date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.
2. I further understand that if I do not appear for trial on the date fixed above or any adjourned trial date thereafter, I will lose any bail that has been posted and a ...