On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0085.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
Defendant was convicted, after a bench trial, of murder and various other offenses. On appeal, defendant's sole argument is that the trial court erred in granting his motion to waive his right to a jury trial. Defendant claims that the court misapplied the factors set forth in State v. Dunne, 124 N.J. 303 (1991) in granting his motion.
The record supports the trial court's finding that defendant's waiver of his right to trial by jury was voluntary and knowing. The other factors Dunne requires a trial court to consider in determining whether to grant a defendant's motion to waive a jury trial are not designed to protect the rights of the defendant, but rather to assure that a trial before a judge rather than a jury does not undermine the public's confidence in the criminal justice system. Therefore, we conclude that even if a trial court misapplies those other factors in granting a defendant's motion to waive the right to a jury trial, the defendant may not rely upon such error to obtain a new trial before a jury.
Defendant was indicted for murder, in violation of N.J.S.A. 2C:11-3(a)(1) or (2); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b); hindering his own apprehension, in violation of N.J.S.A. 2C:29-3(b)(1); endangering an injured victim, in violation of N.J.S.A. 2C:12-1.2; and certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
Before the start of jury selection, defense counsel notified the court that defendant wished to waive his right to a jury trial. Defense counsel told the court he had advised his client not to waive his right to a jury trial but that defendant had insisted upon a bench trial.
The court then addressed defendant regarding the charges against him and the sentences he could receive if convicted. The court also confirmed that defendant had discussed his desire to waive a jury trial with his attorney. In addition, the court confirmed that defendant understood that a jury would be comprised of twelve persons, that he and his attorney would be able to participate in jury selection, and that any jury verdict would have to be unanimous. Defendant also indicated in response to the court's questions that he was not under the influence of any alcohol, drugs, medications, or other substance that could interfere with his ability to understand the proceedings, and that he had not been forced, threatened or coerced into waiving his right to a jury trial. Based on these answers, the trial court found that "defendant understands his constitutional right to a jury trial, and I am satisfied that this is a knowing and voluntary waiver."
Before the beginning of the trial, the court indicated that it had additional questions for defendant "to supplement the proceedings in accordance with State v. Dunne... in order to make [a] complete finding." The following colloquy between the trial court and defendant then took place:
THE COURT: The first question I have is to ask you why, in your own words, you wish to waive a jury trial. Would you please advise the court?
THE DEFENDANT: Because I seen like-like, at somebody else's case, I seen, like, as though one jury convinced the rest of the juries to find this man guilty and I feel as though that's, like, unfair, and, I mean, I feel as though I will have a fair trial with ...