On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-09-0144.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Stern, Waugh and Newman.
This appeal requires us to decide whether a defendant found competent to stand trial must be afforded the constitutional right to self-representation generally granted to defendants under the Sixth Amendment of the federal constitution and Article I, paragraph 10 of the New Jersey Constitution. We hold that the fact-finding in this case justified the trial judge's decision to preclude self-representation, and affirm defendant's conviction.
Defendant, represented by counsel, was convicted at a non-jury trial of conspiracy, attempted theft by deception and theft by deception. He was sentenced to concurrent terms of ten years in the custody of the Commissioner of the Department of Corrections, with five years to be served before parole eligibility, for the second-degree theft by deception and conspiracy convictions, and to a concurrent sentence of five years on the conviction for third-degree attempt. Defendant does not argue merger applies, or that the conspiracy did not transcend the two substantive transactions alleged.
On this appeal defendant argues:
POINT I: IN VIEW OF THE FACT THAT THE TESTIMONY GIVEN BY THE STATE'S PSYCHIATRIC EXPERT WITNESS DURING THE SECOND COMPETENCY HEARING WAS NOT MADE TO WITHIN A REASONABLE DEGREE OF MEDICAL CERTAINTY OR PROBABILITY AND CONSTITUTED AN IMPROPER NET OPINION, PLUS THE TRIAL COURT'S FAILURE TO QUESTION THE DEFENDANT PERSONALLY AND THE DEFENDANT'S BEHAVIOR DURING THE TRIAL AND THROUGHOUT THE PROCEEDINGS, THE TRIAL COURT VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW BY FINDING THE DEFENDANT COMPETENT TO STAND TRIAL.
POINT II: HAVING DETERMINED THAT THE DEFENDANT WAS COMPETENT TO STAND TRIAL, THE COURT SHOULD HAVE CONDUCTED A "PAINSTAKING AND THOROUGH INQUIRY" IN ACCORDANCE WITH CRISAFI AND REDDISH TO THOROUGHLY EXPLORE THE ISSUE REGARDING THE DEFENDANT'S REQUEST TO PROCEED PRO SE, AND THE COURT'S FAILURE TO DO SO CONSTITUTES REVERSIBLE ERROR.
POINT III: USE OF THE DEFENDANT'S PRIOR SIXTEEN-YEAR-OLD CONVICTION WAS UNDULY PREJUDICIAL AND SHOULD HAVE BEEN EXCLUDED FROM THE TRIAL AS BEING TOO REMOTE AND THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT INTO THE DETAILS OF THE PRIOR CONVICTION WAS IMPROPER.
POINT IV: THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AND RECUSED HIMSELF FROM FURTHER PROCEEDINGS BECAUSE HE LOST CONTROL OVER THE PROCEEDINGS.
POINT V: THE SENTENCE IMPOSED WAS EXCESSIVE UNDER THE CIRCUMSTANCES AND MUST BE VACATED.
There is no contest to the sufficiency or weight of the evidence, and we need not detail the proofs at trial. The trial judge stated the elements of each offense in rendering his findings, and defendant challenges neither his statement of the elements nor the findings. See State v. Smith, 253 N.J. Super. 145, 147 n.1 (App. Div. 1992). See also R. 1:7-4(a). The sentencing point is without merit ...