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State v. Powell

April 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEVIN POWELL, DEFENDANT-APPELLANT.
IN THE MATTER OF THE SUMMARY CONTEMPT OF DEVIN POWELL.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-07-0502; 04-08-0617; 06-01-0012.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 16, 2008

Before Judges Cuff and Lihotz.

On June 8, 2007, defendant Devin Powell was sentenced in accordance with a negotiated plea agreement. Defendant had pled guilty to various offenses, including disarming a police officer and four counts of aggravated assault. On that day, the judge imposed a fourteen-year term of imprisonment subject to a No Early Release Act, N.J.S.A. 2C:35-7.2, 85% parole ineligibility term. Immediately following the sentencing, a verbal exchange occurred between the judge and defendant that led to a finding that defendant was in contempt of court and imposition of a six-month term of imprisonment consecutive to the fourteen-year term just imposed.

On appeal, defendant argues that the judge failed to follow the mandatory procedures of Rule 1:10-1 and defendant's conduct cannot be considered contemptuous. We agree and reverse.

As the sentencing proceeding was concluding, the judge explained to defendant his right to appeal. The following exchange then occurred:

THE COURT: * * * Do you understand your appeal rights and the notice which I have just given you regarding your driver's license suspensions, sir?

THE DEFENDANT: Yeah.

THE COURT: Is that a yes?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Powell, do you want to explain to me what you meant by that response?

THE DEFENDANT: Yes, sir.

THE COURT: Explain it ...


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