February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REUBEN DISHAN SWEET, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 unjustified and thus the trial would also proceed in absentia.
Defendant appeals, contending:
IT WAS ERROR TO CONDUCT PRE-TRIAL MOTION HEARINGS AND TRIAL WITH APPELLANT IN ABSENTIA.
Defendant argues that the judge erred because he provided the court with proof of treatment for a medical condition as the reason for his absence from trial. However, the record belies that contention. Moreover, this argument is procedurally barred.
Rule 3:20-2 provides that "[a] motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing." At a hearing on the motion, the State does not have the burden of proving that a defendant's absence is unjustified, rather the burden lies with the defendant. State v. Finklea, 147 N.J. 211, 220 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed. 2d 63 (1997). Where the record reflects that defendant had actual notice of the time and place of trial, and failed to appear and also failed to file a motion challenging the waiver, the failure to make the appropriate motion constitutes a second waiver pursuant to Rule 3:16(b). Id. at 220-21. If a defendant does not properly move for a new trial as required by the court rules, the appellate court may still choose to address defendant's contention if the interest of justice so provides.
Here, defendant did not move for a new trial prior to sentencing. Such a failure is a waiver of defendant's right to be present at trial.
Nonetheless, we will address the merits. Defendant's informed and inexcusable absence from trial is itself sufficient to justify the denial of an adjournment and proceed in absentia. State v. Hudson, 119 N.J. 165, 183-84 (1990). Therefore, the judge need not balance factors such as the ease of rescheduling, the availability of witnesses and counsel, and the effect on the court's calendar in deciding whether to proceed with trial. Id. at 183. This decision to forego adjournment and proceed in absentia may be reversed pursuant to appellate review only upon a showing of an abuse of judicial discretion. Id. at 184.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant "the right . . . to be confronted with the witnesses against him." A critical component of this guarantee is the right of the accused to be present in the courtroom at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed. 2d 353, 356 (1970) (citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)); State v. Luna, 193 N.J. 202, 209 (2007); State v. Whaley, 168 N.J. 94, 99 (2001); Finklea, supra, 147 N.J. at 215; Hudson, supra, 119 N.J. at 171. The right of the accused to be present at his or her trial is also protected by the due process clause of the Fourteenth Amendment "to the extent that a defendant's absence would hinder a fair and just hearing."
Luna, supra, 193 N.J. at 209 (quoting Finklea, supra, 147 N.J. at 216).
This right to be present at trial, however, is not absolute. Rather, the rules governing the court provide that a trial may be held in abstentia when a defendant explicitly or implicitly waives his right to be present. The pertinent Rule, R. 3:16(b), provides:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgement of the trial date, or (2) trial has commenced in defendant's presence.
[R. 3:16(b) (emphasis added).]
In the case where a defendant does not provide an express waiver, the standard is whether a defendant's conduct reveals a knowing, voluntary, and unjustified absence. Luna, supra, 193 N.J. at 210. Moreover, prior to considering the right waived on the basis that the accused has failed to appear on the trial date, "[t]he trial judge should attempt to learn where the defendant is and why he is absent and make appropriate factual findings." State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996). The "[i]mplementation of R. 3:16(b) [however] must be done carefully, in strict adherence to its terms and with sensitivity to the importance of the right being denied." State v. Givens, 353 N.J. Super. 280, 287 (App. Div. 2002) (quoting State v. Sellars, 331 N.J. Super. 110, 122 (App. Div. 2000)). The right to be present should thus not be weakened in order to punish the defendant for the disruption of the court calendar or in the interest of moving cases.
In order to sustain a waiver of the right to be present, it must be shown that the trial date was actually communicated to the defendant. Hudson, supra, 119 N.J. at 182. See also Davis, supra, 281 N.J. Super. at 416. The notice provided to the defendant regarding the trial date should additionally be reasonable. See State v. Mahone, 297 N.J. Super. 524, 529-30 (App. Div.), aff'd o.b., 152 N.J. 44 (1997) (defendant's failure to appear on short notice did not constitute a waiver of the right to be present). Rule 3:16(b), however, does not require a defendant to receive actual notice of the rescheduled trial date where a case has been rescheduled. The Supreme Court has found that "once a defendant has been given actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver of the right to be present during the trial absent a showing of justification by the defendant." Finklea, supra, 147 N.J. at 213.
From the record, we conclude that defendant's conduct amounted to a knowing, voluntary, and unjustified absence from trial. See Luna, supra, 193 N.J. at 210. Defendant's argument that his absence was justified because at the time of trial the judge should have believed defendant's absence was due to treatment for a medical condition is without merit. The judge's determination in fact was validated when defendant later admitted to fleeing to Georgia because he "was nervous about [his] court date." Therefore, the judge did not abuse her discretion in finding defendant's absence knowing, voluntary and unjustified and in proceeding with the Miranda hearing and trial in absentia.
Rule 3:16(a) addresses the defendant's presence at pretrial proceedings. The rule provides that "[t]he defendant must be present for every scheduled event unless excused by the court for good cause shown." R. 3:16(a). When the hearing involves "oral testimony on material issues of fact of which defendant had personal knowledge," this court has held that the waiver provisions of Rule 3:16(b) apply. State v. Robertson, 333 N.J. Super. 499, 510 (App. Div. 2000). Therefore, as with trial proceedings, for the determination of whether pretrial proceedings may be held in absentia, the standard is whether defendant's conduct relays a knowing, voluntary, and unjustified absence after the defendant received actual notice of the hearing date. Ibid.
A Miranda hearing involves oral testimony on material issues of fact. Thus, here, the trial court, prior to proceeding in absentia, was required to apply the R. 3:16(b) standard of a knowing, voluntary, and unjustified absence after having received actual notice. As discussed previously, the record reflects a knowing, voluntary, and unjustified absence on the part of defendant and thus the judge did not abuse her discretion.
Defendant also contends:
IMPOSITION OF MAXIMUM TERMS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
We are not persuaded by this argument.
Defendant was twenty-eight years old at the time of sentencing. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law.
The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (11) the imprisonment of defendant would entail excessive hardship to himself or his dependents.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The aggravating factors preponderate and justify imposition of a sentence at the top of the range. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).