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In re Selby

August 22, 2007

IN THE MATTER OF KENNETH SELBY, APPELLANT.


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-10-01053.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Appellant, Kenneth Selby (Selby), appeals from a judgment of conviction entered on June 7, 2006 finding him in contempt for failure to appear when subpoenaed for a criminal trial and committing him to the Cumberland County jail for a period of 120 days, as well as assessing a $500 fine. The facts and procedural history are as follows.

Selby witnessed the homicide of Kenneth Kent and provided a written statement detailing his eyewitness account to the Cumberland County Prosecutor's office. On February 23, 2006, he met with representatives of the prosecutor's office for a pre-trial interview. While at the prosecutor's office, Selby was served with a "stand-by" subpoena to testify. This subpoena stated in bold letters, "[t]his is a stand-by subpoena. Do not come to court until you have called the prosecutor's office." The text of the subpoena advised Selby to "call the Prosecutor's Office on Friday, March 10, 2006, and ask for Detective George Chopek . . . You will then be told when to appear." During the pre-trial interview, he indicated that he did not wish to testify at the trial.

Selby contends that on March 10, 2006, he called the prosecutor's office, asked for Detective Chopek, and was told he was out. He stated that he did not make any effort to call back after the first call or let a representative in the office know who he was or why he was calling. The representatives of the prosecutor's office testified they received no messages from Selby that he had called on March 10.

The trial of Terrell Cornish, who was accused of killing Kenneth Kent, commenced and ended after a plea arrangement was reached between Cornish and the State. Selby did not appear at the trial despite efforts by the prosecutor's office to locate him and serve him with a second subpoena.

On April 3, 2006, the State asked that an Order to Show Cause be entered as to why Selby should not be found in contempt pursuant to Rule 1:10-2 for failing to comply with the stand-by subpoena. The application for the Order to Show Cause was accompanied by a certification from the First Assistant Prosecutor in Cumberland County outlining the facts relevant to the issuance of the stand-by subpoena and the failure of Selby to attend the trial. The trial court granted the Order to Show Cause setting April 28, 2006 as the return date. That date was postponed to allow Selby to retain counsel. The hearing was conducted on June 7, 2006. Following the hearing, the trial court found Selby guilty of contempt and sentenced him to 120 days in the Cumberland County jail, together with a fine of $500. This appeal ensued. We stayed the imposition of the judgment by order dated October 17, 2006.

On appeal, Selby presents the following arguments for our consideration:

POINT I: THE COURT COMMITTED ERROR BY IMPROPERLY SHIFTING THE BURDEN OF PROOF FROM THE STATE TO THE DEFENDANT IN A CRIMINAL CONTEMPT PROCEEDING AND OTHERWISE DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHTS INHERENT IN A CRIMINAL PROCEEDING.

POINT II: THE COURT'S RULING BELOW IS UNSUPPORTED BY THE RECORD AND MUST BE REVERSED UPON DE NOVO REVIEW BY THIS COURT.

Selby argues that in this contempt case, he was entitled to certain safeguards accorded to criminal defendants, including the presumption of innocence, the privilege against self-incrimination, the right of cross-examination, proof of guilt beyond a reasonable doubt, and the admission of evidence in accordance with the Rules of Evidence. Selby claims that he was essentially deprived of all these protections.

At the outset, we note that Selby received an adjournment so that he could retain counsel and, in fact, he did retain counsel for this hearing. The record indicates that the court utilized the Rules of Evidence with regard to the admissibility of evidence in conducting the hearing. ...


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