On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-02-328.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2007
Before Judges Skillman, Winkelstein and Yannotti.
This appeal involves the constitutionality of the section of the Code of Criminal Justice that proscribes a defendant's failure to appear either in court or for service of a sentence. This section, N.J.S.A. 2C:29-7, provides in pertinent part:
A person set at liberty by court order, with or without bail, or who has been issued a summons, upon condition that he will subsequently appear at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration, commits an offense if, without lawful excuse, he fails to appear at that time and place. It is an affirmative defense for the defendant to prove, by a preponderance of evidence, that he did not knowingly fail to appear.
This appeal presents two issues regarding the constitutionality of N.J.S.A. 2C:29-7: first, whether this section violates the requirement that the State prove every element of an offense beyond a reasonable doubt by imposing a burden upon a defendant to prove that (a) there was a "lawful excuse" for his failure to appear and (b) his failure to appear was "not knowingly"; and second, whether the requirement that the State prove that a defendant's failure to appear was "without lawful excuse" is unconstitutionally vague.
We conclude that N.J.S.A. 2C:29-7 does not impose a burden upon a defendant to prove that there was a lawful excuse for his failure to appear. We also conclude that even though a jury instruction in the language of the second sentence of N.J.S.A. 2C:29-7 would impose an unconstitutional burden upon a defendant to disprove the "knowing" mental culpability element of the offense, this constitutional defect can be avoided by a jury instruction that omits any reference to a defendant having the burden to prove that his failure to appear was "not knowingly." In addition, we conclude that the "without lawful excuse" element of N.J.S.A. 2C:29-7 is not unconstitutionally vague. Therefore, we uphold the constitutionality of N.J.S.A. 2C:29-7.
Defendant was indicted for aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), and various other offenses. He failed to appear on the scheduled trial date and was not apprehended until a year later. Defendant was subsequently indicted for the failure to appear, in violation of N.J.S.A. 2C:29-7.*fn1
A jury found defendant guilty of aggravated assault and the other offenses charged in the original indictment. Defendant then pled guilty pursuant to a plea agreement to the failure to appear charge.
The trial court sentenced defendant for the aggravated assault to a ten-year term of imprisonment, subject to the 85% parole ineligibility period mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a concurrent sentence for one of the other offenses charged in the original indictment and merged the rest. The court also imposed a concurrent four-year sentence for the violation of N.J.S.A. 2C:29-7.
On appeal, we affirmed defendant's convictions and sentences on the charges in the original indictment in an unreported opinion. State v. Emmons, No. A-0706-04 (App. Div. Dec. 27, 2005). However, we vacated defendant's conviction and sentence for the violation of N.J.S.A. 2C:29-7 because defendant had failed to provide an adequate factual basis for his plea. Specifically, we concluded that defendant failed to provide any factual basis for finding that his failure to appear was "without lawful excuse." Accordingly, we remanded the case to the trial court so that defendant could either re-plead and provide an adequate factual basis for the plea or proceed to trial.
Following the remand, defendant moved to dismiss the indictment on the grounds that the evidence presented to the grand jury was insufficient to support the indictment and that N.J.S.A. 2C:29-7 is unconstitutional because it shifts the burden of proving the "without lawful excuse" and "knowing" mental culpability elements of the offense to defendant. At the argument on the motion, the trial court also raised the question whether N.J.S.A. 2C:29-7 is unconstitutionally vague because it does not define the term "without lawful excuse."
The trial court granted defendant's motion to dismiss the indictment on the ground that N.J.S.A. 2C:29-7 is unconstitutional. In an oral opinion, the court stated:
[W]e all know, and we can say it a hundred times over, that the State has the burden of proof that he failed to appear without lawful excuse beyond a reasonable doubt.
. . . But I believe that what happens when the prosecution is permitted, by the plain language of the statute, to have the jury speculate as to what would be a lawful excuse, and infer that he's got to come forward, what we are doing in the body of the statute is we are creating an inference that a defendant must say what his lawful excuse was. Otherwise, he is going to be found guilty. And that . . . runs afoul of the Constitution.
The court did not address defendant's argument regarding the sufficiency of the evidence to support the indictment.
The State appeals from the trial court's dismissal of the indictment based on its conclusion that N.J.S.A. ...