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State v. Grenci

February 24, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGELO A. GRENCI, JR., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must decide whether the trial court erred in trying defendant in absentia on new charges in a superseding indictment; whether the trial court improperly directed a verdict on an element of a burglary charge; and, if the instruction on the burglary charge was erroneous, whether the appropriate relief is the granting of a new trial.

On August 10, 2002, defendant Angelo A. Grenci, Jr., attended a party in Manchester Township. At that party, co-defendant Henry Fallas got into a fight with Roy Piazza and knocked him unconscious. After Piazza recovered, he went to Fallas's home and told his parents that he wanted to talk to their "scumbag" son and ended by saying, "I'll be home." Grenci was on his way to Atlantic City when he heard of Piazza's visit and, apparently enraged, changed directions and headed to Piazza's residence in Berkeley Township. Grenci and his friends pushed their way into Piazza's apartment and a melee ensued. Grenci and co-defendant William Germann pursued Piazza into the kitchen where Grenci picked up empty beer bottles and used them to strike Piazza's head and body. On hearing that the police were on their way, everyone left the apartment. As Grenci was leaving in his car, he observed Piazza in the parking lot and attempted to run him down -- without success.

Grenci and co-defendants were each charged in one count of an Ocean County indictment with committing second-degree burglary. At a pretrial conference on April 28, 2003, Grenci rejected a plea offer. That same date, Grenci signed a pretrial memorandum acknowledging that if he failed to appear on the trial date or any rescheduled trial date, the trial would proceed in his absence and that he would "be bound by the jury's verdict." The court scheduled a June 9, 2003 trial date. On June 9, 2003, the court conducted a status conference and advised Grenci in person that the trial was adjourned until July 28 and that the trial would proceed on that new date even if he failed to appear. At that same conference the prosecutor told defense counsel that he intended to re-present the case to the grand jury and seek a superseding indictment that would include an additional count of aggravated assault.

On June 11, 2003 the grand jury returned a superseding indictment charging Grenci with one count of second-degree burglary, three counts of second-degree aggravated assault, and three counts of third-degree aggravated assault. Defense counsel forwarded a copy of the superseding indictment to Grenci at his last known address. Grenci failed to appear at a July 21 pretrial conference, resulting in the issuance of a bench warrant for his arrest. On July 29, the trial on the superseding indictment began with only Fallas present. The State presented its case. Grenci's counsel, in summation, argued that the violence in Piazza's apartment was a consensual fight, not burglary. With regard to the burglary charge, the court instructed the jury, in part, that "it's true with regard to [defendant and Germann] that they entered without license or privilege to be there." The jury convicted Grenci of second-degree burglary, two counts of second-degree aggravated assault, and one count of simple assault -- a lesser-included offense of aggravated assault -- related to Grenci's attempt to run down Piazza. After the verdict, Grenci was apprehended in Mexico and extradited to New Jersey.

Grenci moved for a new trial, arguing that the State could not try him in absentia on charges in an indictment on which he was never arraigned. The trial court denied the motion, finding that Grenci knew at the June 9 conference that the State intended to seek a new indictment that would include additional charges arising from the same events involving the burglary indictment. Grenci was sentenced to a twenty-four-year-aggregate-term sentence subject to an eighty-five percent parole disqualifier under the No Early Release Act.

In an unpublished per curiam opinion, the Appellate Division affirmed the burglary and simple assault convictions and reversed the two aggravated assault convictions. The panel determined that Grenci's trial on the superseding indictment violated neither Rule 3:16(b) nor principles of fundamental fairness because he had "adequate knowledge of the pending charges" and voluntarily waived his appearance. The panel further reasoned that although defendant was charged with six counts of aggravated assault in the superseding indictment that were not contained in the original indictment, "the assaultive nature of the charges was inherent in the original indictment." The panel also rejected defendant's argument that the trial court committed plain error in instructing the jury on the burglary charge.

The Supreme Court granted defendant's petition for certification and the Attorney General's motion to participate as amicus curiae.

HELD: Defendant's trial in absentia on the superseding indictment did not comply with Rule 3:16(b). Because defendant was never arraigned on the superseding indictment and never waived -- in writing or orally on the record -- his right to be present at trial on that indictment, the trial should not have proceeded in his absence. Therefore, no conviction arising from any of the additional charges contained in the superseding indictment can stand. In addition, the trial court's instructions to the jury directed a verdict on an element of the burglary offense and thereby improperly relieved the State of its constitutional burden of proving guilt beyond a reasonable doubt.

1. The right of a person accused of a crime to be present at his or her trial is among the most fundamental of constitutional rights. That right finds its source in the federal and state constitutional right of a criminal defendant "to be confronted with the witnesses against him." In appropriate circumstances, that right, like other constitutional rights, can be waived. Before turning to the current version of Rule 3:16, the Court considers the history and principles underlying the right of presence. (Pp. 13-17)

2. Although Rule 3:16(b) allows for waiving one's right to be present at trial, it nowhere suggests that an arraignment can be waived or that a trial can proceed when the defendant does not have actual notice of the charges. A defendant's knowledge that the prosecutor intended to seek additional charges is not a substitute for a defendant's right to receive and review the indictment. R. 3:9-1(c). The Court cannot presume that the prosecutor's announcement that he would re-present the case to the grant jury was tantamount to an arraignment on charges yet to be returned. Before a court can find that a "defendant's conduct evidenc[es] a knowing, voluntary, and unjustified absence" from trial under Rule 3:16(b), a defendant first must receive actual notice of the charges contained in the indictment at an arraignment or some other court proceeding. To satisfy the procedural prerequisites for conducting a trial in absentia pursuant to Rule 3:16(b), only after an indictment is returned and a defendant is arraigned o the charges may a court advise a defendant that he will be tried on a date certain or date thereafter. (Pp. 17-20)

3. In this case, defendant's failure to appear in court after the June 9 conference did not constitute a waiver of the right to receive actual notice of the charges brought against him. Quite simply, without an arraignment first, defendant could not be tried on the new charges alleged in the superseding indictment. Accordingly, the Court is compelled to reverse the simple assault conviction, which the jury found as a lesser-included offense of aggravated assault. (Pp. 20-22)

4. On the second-degree burglary charge, the court correctly instructed the jury on the elements of burglary. The court's instructions, however, directed the jury to find that defendant was not licensed or privileged to enter Piazza's apartment. Regardless of how seemingly overwhelming the proofs were against defendant on that issue, it was for the jury, not the judge, to decide. Defense counsel did not object to the court's charge, and therefore this issue comes before the Court as plain error. The Court doubts that directing a verdict on an element of an offense can ever be harmless. Here, the error was of such constitutional magnitude that it undermined the very integrity of the trial. The Court therefore reverses the second-degree burglary conviction and remands for a new trial. (Pp. 22-26)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, stating that he would affirm in all respects the judgment of the Appellate Division, substantially for the reasons it set forth.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

Argued November 3, 2008

JUSTICE ALBIN delivered the opinion of the Court. Defendant Angelo A. Grenci was tried and convicted by a jury in absentia on a superseding indictment alleging six counts of aggravated assault and one count of second-degree burglary.

The initial indictment charged defendant only with second-degree burglary. Defendant absconded after his arraignment on the initial indictment but before he could be arraigned on the superseding indictment. Both the trial court and the Appellate Division found that defendant had waived his constitutional right to be present at his trial on the superseding indictment because he received notice of the trial date on the first indictment and because he had actual notice that the prosecutor intended to return to the grand jury to seek additional charges.

We now hold that defendant's trial in absentia on the superseding indictment did not comply with Rule 3:16(b). Because defendant was never arraigned on the superseding indictment and never waived -- in writing or orally on the record -- his right to be present at trial on that indictment, the trial should not have proceeded in his absence. See Rule 3:16(b). Therefore, we conclude no conviction arising from any of the additional charges contained in the superseding indictment can stand.

We also reverse defendant's conviction on the burglary charge that was contained both in the original indictment and superseding indictment. We do so because the trial court's instructions to the jury directed a verdict on an element of the offense and thereby relieved the State of its constitutional burden of proving guilt beyond a reasonable doubt.

I.

A.

Defendant and co-defendants Henry Fallas and William Germann were each charged in one count of an Ocean County indictment with committing second-degree burglary, N.J.S.A. 2C:18-2.*fn1 The indictment arose from allegations that defendant and his co-defendants forced their way into an apartment where they engaged in a violent brawl. At a pretrial conference on April 28, 2003, defendant rejected a plea offer extended by the State. That same date, defendant signed a pretrial memorandum acknowledging that if he failed to appear on the trial date or any rescheduled trial date, the trial would proceed in his absence and that he would "be bound by the jury's verdict." The court scheduled a June 9, 2003 trial date.

On June 9, the court conducted a status conference instead of a trial. The court advised defendant in person that the trial was adjourned until July 28 and that the trial would proceed on that new date even if he failed to appear. At that same conference, the prosecutor told defense counsel that he intended to re-present the case to the grand jury and seek a superseding indictment that would include an additional count of aggravated assault.*fn2

On June 11, the Ocean County grand jury returned a superseding indictment charging defendant with one count of second-degree burglary, N.J.S.A. 2C:18-2, three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and three counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). Co-defendants Fallas and Germann were only charged in the burglary count of the superseding indictment.

Defense counsel forwarded a copy of the superseding indictment to defendant at his last known address, his parents' home, but had no further communication with defendant after the June 9 court conference. Defendant failed to appear at a July 21 pretrial conference, resulting in the issuance of a bench warrant for his arrest. On July 29, the trial on the superseding indictment began with only Fallas present. Neither defendant nor co-defendant Germann appeared during the three-day trial.

At the trial, the State presented testimony that, on the evening of August 10, 2002, defendant attended a party in Manchester Township. At that party, co-defendant Fallas got into a fight with Roy Piazza and knocked him unconscious. After defendant and his friends, including Fallas, left the party, Piazza recovered and then, apparently, wanted to go a second round with Fallas. Piazza went to Fallas's home, but did not find him there. He told Fallas's parents that he wanted to talk to their "scumbag" son and ended by saying, "I'll be home." Piazza, accompanied by his friends, then retired to his second-floor apartment in nearby Berkeley Township.

The news of Piazza's visit to Fallas's home was quickly transmitted to defendant, who was driving to Atlantic City with a group of friends. Apparently enraged, defendant changed directions and headed to Piazza's residence. Defendant and his friends entered Piazza's apartment building through an open door on the ground floor and climbed the stairs. Defendant knocked on the door to Piazza's apartment. Someone inside began to open the door, but immediately had second thoughts and tried to close it. Defendant and his friends pushed their way in and a melee ensued.

Defendant and Germann pursued Piazza into the kitchen where defendant picked up empty beer bottles and used them to strike Piazza's head and body. When Michael Ricciardella interceded to stop defendant's pummeling of Piazza, defendant turned on Ricciardella, breaking a bottle over his head and biting him in the chest. In return, Ricciardella stuck his thumb in defendant's eye. At about this point Fallas yelled that the police were on their way, and the combatants poured out of the ...


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