On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 06-07-1498.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Rodríguez and Waugh.
Following a jury trial, defendant Reuben Dishan Sweet was convicted in absentia of third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and 35-10a(1); third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and third-degree possession of cocaine with intent to distribute, N.J.S.A. 35-5b(3). Because defendant failed to appear at a Miranda*fn1 hearing, pre-trial conference and trial, these were heard in absentia by Judge Bette E. Uhrmacher and a jury. Subsequent events revealed that defendant had fled to Georgia.
Two months after the trial concluded, defendant was extradited from Georgia. The judge granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f and imposed concurrent terms aggregating ten years with a five-year parole disqualifier. In addition, defendant was ordered to reimburse the Monmouth County Prosecutor's Office for extradition costs.
The arrest was based on the following facts. The State's proofs can be summarized as follows. Monmouth County Prosecutor's Detective Scott Samis gathered information from a confidential informant that numerous drug dealers were showing up at a house in Ocean Township. Subsequent investigations revealed this house to be where Jacqueline Colacchio resided. On November 30, 2005, at approximately 9:20 p.m., Samis and other officers arrived at Colacchio's home to set up a surveillance point in the bushes near the home. Monmouth County Prosecutor's Detective Butkoff and Ocean Township Detective Tongring were stationed in a vehicle about a block from the home.
An individual approached Colacchio's home and was arrested for possession of cocaine. Samis and the other officers knocked on the front door. Several minutes passed before Colacchio answered the door. Samis informed her that he had a warrant for her arrest. Following the arrest, Colacchio decided to cooperate with the police officers. She informed Samis of telephone calls she had made in search of drugs, and that she was expecting defendant to stop by her house in order to sell her crack cocaine. According to Colacchio, she had asked defendant for one or two hundred dollars worth of crack cocaine. Defendant replied, "I'll be there." Colacchio had purchased drugs from defendant on over twenty prior occasions.
At approximately 11 p.m. that night, the officers saw a taxicab pull up to Colacchio's home. Defendant exited the vehicle and walked up to the front porch. Samis, along with Ocean Township Detective Clancy, approached defendant once he arrived at the front door. Defendant had his hands in his pockets. Samis told him to show his hands. Defendant complied and dropped a plastic baggie from his right pocket onto the ground. Samis arrested defendant. A search of defendant's right pocket, made subsequent to arrest, revealed a plastic baggie, similar to the one discarded on the ground, containing an off-white rock-like substance. According to Samis, defendant tried to swallow something at the time of his arrest.
At headquarters, Samis advised defendant of his Miranda rights orally and on a written form. Defendant gave a written statement, admitting that he had sold drugs to get by and that the drugs in his possession at the time of arrest were his.
On January 29, 2007, defendant received written notice, in the form of a pretrial memorandum, scheduling his trial for April 30, 2007. By signing the memorandum, defendant acknowledged notice of his trial and notice of his right to be present during trial. Furthermore, the pretrial memorandum put defendant on notice that if he failed to appear on the scheduled trial date, the court had the right to conduct the trial in his absence. It is undisputed that defendant did not appear in court on April 30, 2007.
There were attempts to reach defendant at his last known address, his sister's home and his ex-girlfriend's home. The sister and girlfriend indicated that they had not been in contact with defendant for some time. During lunch recess on the day of the pretrial hearing, May 2, 2007, defendant telephoned defense counsel to inform that he had a doctor's appointment and would not be attending. Counsel informed defendant that if he did not appear by 1:30 p.m. the trial would proceed in his absence.
Defendant also called the court clerk and said he was at the Jersey Shore Medical Center. He was told again that the trial was set for May 3, 2007. The judge directed a court officer to the Medical Center in order to escort defendant to court. Within twelve minutes of the telephone call, the officer arrived at the Medical Center. However, defendant was not found. The judge decided to proceed in absentia with the Miranda hearing. However, the judge stated on the record that if defendant voluntarily appeared or was produced and if defense counsel requested, upon a good faith showing, the judge would reopen the Miranda issue on the following court date.
On the date of trial May 3, 2007, defense counsel informed the judge that defendant was once again not present. Counsel had attempted to reach defendant. The judge reiterated the findings that defendant's absence was voluntary and ...