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State v. Dellisanti

April 27, 2010


On appeal from and certification to the Superior Court, Appellate Division.


(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).

The Court determines whether defendant Frank Dellisanti is entitled to a new trial because his right to be present throughout his criminal trial was violated when, during jury deliberations, he was arrested for an unrelated probation violation. The Court also considers whether certain questions posed by the prosecutor during the cross-examination of Dellisanti were improper.

Dellisanti was on trial in Bergen County Superior Court on charges of fourth-degree presentation of a false motor vehicle insurance identification card and third-degree aggravated assault on a firefighter. While the jury was deliberating, the judge informed Dellisanti and his attorney that sheriff's officers would be arriving from another county to arrest him and take him into custody for an unrelated probation violation. Dellisanti was not present in the courtroom for the remainder of the trial, including when the court brought the jury into the courtroom to answer two of its questions relating to the evidence. The judge informed the jury that Dellisanti was not present because he was not feeling well and needed to seek medical attention. The jury resumed deliberations and shortly thereafter returned with a verdict, again without Dellisanti's presence. The jury found Dellisanti guilty of the charges concerning the insurance card, but acquitted him of aggravated assault. At defense counsel's request, the jurors were polled. Thereafter, Dellisanti was sentenced to ninety days in the county jail as a condition of serving one year of probation. There is no indication in the record that Dellisanti voluntarily waived his right to be present during the concluding stages of his criminal trial.

On appeal, Dellisanti argued that the court erred in continuing the trial after he was taken into custody on a warrant for a violation of probation. In a split decision, the majority of the Appellate Division panel affirmed Dellisanti's convictions, finding that his absence from the trial did not cause him prejudice because the questions posed by the jury during deliberations concerned the aggravated assault charge, of which he was acquitted, and the record did not disclose any objection by defense counsel to Dellisanti's absence. The dissenting judge regarded Dellisanti's nonconsensual removal from the courtroom before the completion of his trial to be an error of constitutional dimension that warranted a new trial. Because of the dissent, the issue was before the Supreme Court as of right, pursuant to Rule 2:2-1(a). The Court also granted Dellisanti's petition for certification, which argued that it was reversible error for the trial court to allow prosecutorial questioning of defendant that compelled him to comment on the credibility of the State's witnesses. 200 N.J. 504.

HELD: The arrest of defendant Frank Dellisanti for a probation violation during jury deliberations in his unrelated criminal trial violated his right under Rule 3:16(b) to be present through the trial's conclusion and the rendering of the verdict. Because the record does not establish that the Rule's conditions for waiver were satisfied, the Court reverses Dellisanti's convictions and remands for a new trial.

1. The right of a defendant to be present at trial is protected by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, and by Article I, paragraph 10 of the New Jersey Constitution. In some circumstances that do not involve the confronting of witnesses or evidence against a defendant, the right is protected by the due process clauses of the Fifth and Fourteenth Amendments. The right is so vital to the proper and fair functioning of the criminal justice system that it is protected by a specific court rule. Rule 3:16(b) states that absent a defendant's waiver, he or she has a right to be present at every stage of a trial, including the return of the verdict and the polling of the jury. Under the rule, a waiver may be found either from the defendant's express written or oral waiver placed on the record, or the defendant's conduct evidencing a knowing, voluntary, and unjustified absence. (Pp. 10-12).

2. The Court reviews the history of Rule 3:16(b) and notes that its affirmative protection of the right to presence has been embedded in both our criminal practice rules and in the federal rules of criminal procedure since their respective inceptions. Notwithstanding amendments to the Rule over the years, what has not changed has been the existence of a robust right for a defendant to be present at every stage of the trial, including at the return of the verdict and the imposition of sentence. (Pp. 12-15).

3. Next, the Court reviews prior opinions evaluating the circumstances under which a trial in absentia is permissible, the significance of a defendant's absence during a portion of a proceeding, and whether a defendant's absence was prejudicial to his right to participate in the evidential proceedings, to confront the witnesses and evidence against him, or to his ability to assist with his defense. The Court explains that these decisions reflect a sensitivity to the prejudicial effect of the violation of an individual's interests that are protected by the right to presence, as well as the potential for harm to the judiciary's institutional interest in demonstrating to the public the fairness of criminal proceedings. The Court notes, however, that the cases do not reflect a per se approach. When the absence deprives a defendant of confrontation rights, prejudice can be readily assessed; when confrontational interests are not in play and participation in one's defense is the issue, prejudice is more critically examined. However, no prior decisions have confronted a fact pattern in which a seemingly unwilling defendant was taken from the courtroom by another vicinage's law enforcement officers while awaiting the jury's return from deliberating on his verdict. (Pp. 15-22).

4. What was done to Dellisanti by law enforcement officers of another county of this state, with the seeming cooperation of the court presiding over the ongoing trial on criminal charges, was neither just nor fair. The record does not demonstrate that Dellisanti waived his right to be present, or that his right to presence was forfeited due to his own action or inattention, and his removal from the courtroom deprived him of the psychologically significant opportunity to confront the jurors with his presence when they rendered their verdict and were polled. This defect in the proceedings was not harmless or de minimus for defendant, who was prevented, involuntarily, from facing the jury when it issued its fact-finding conclusions synthesizing the evidence that was presented in the pitched battle over credibility that lay at the heart of this criminal proceeding. Furthermore, defendant's loss of his right to be present had the clear capacity to diminish the public's perception of the integrity, fairness, and justness of the hearing. In sum, the clear promise contained in Rule 3:16(b) was breached and that breach was prejudicial to defendant and to the institutional interests that the Rule is designed to foster. (Pp. 22-24).

5. The Court holds further that trial courts must ensure that a warrant from another jurisdiction does not prevent a defendant from being present during his or her trial. If a defendant wishes to waive his or her presence mid-trial due to the intercession of law enforcement officers of any jurisdiction, the defendant's waiver must be on the record. A trial court must not cede control over the courtroom. Because the record contains no demonstration that Dellisanti's absence in this matter was voluntary in these exceptional circumstances, the Court concludes that he was impermissibly denied his right under Rule 3:16(b) to be present through the return of the jury's verdict. The Court reverses Dellisanti's convictions and remands for a new trial. (P. 24).

6. Finally, the prosecutor's cross-examination of Dellisanti with regard to the assault charge was improper. The prosecutor's questioning compelled Dellisanti to comment starkly on the credibility of the witnesses against him. If during the retrial the State seeks to emphasize to the jury a lack of believability in Dellisanti's conspiracy theory, it must do so without asking him to comment on whether another testifying witness was lying. (Pp. 25-27).

The Court REVERSES defendant's convictions and REMANDS for a new trial.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued January 20, 2010

Defendant Frank Dellisanti was on trial in Bergen County Superior Court when sheriff's officers from another county arrived to arrest him for an unrelated probation violation. The sparse record regarding the circumstances of his removal, which took place during the jury's deliberations, provides limited information. We do know that the record is barren of any indication that defendant voluntarily waived his right to be present during the concluding stages of his criminal trial. Defendant's absence caused him to miss the jury's return to the courtroom on two occasions: first, when the trial court responded to two questions the jury had posed during deliberations, and, second, when the jury announced its verdict and was polled.

Rule 3:16(b) codifies a defendant's significant right to be present throughout his criminal trial. That Rule's underpinnings are drawn from the confrontation clauses of the federal and state constitutions as well as from due process considerations. See State v. Hudson, 119 N.J. 165, 171-72 (1990) (reinstating convictions of defendants who voluntarily absented themselves after trial commenced). Our court rules promise criminal defendants that, absent their explicit waiver, presence at trial encompasses "every stage of the trial" including "the return of the verdict." R. 3:16(b). Thus, in protecting an accused's right to be present at his criminal trial --- to confront the witnesses against him and to participate in the presentation of his defense -- Rule 3:16(b) incorporates a defendant's concomitant right to face the jury when it issues its verdict.

We hold, in the exceptional circumstances presented here, that the wishes, preferences, or convenience of sheriff's officers acting to arrest defendant during jury deliberations cannot be permitted to trump defendant's right under Rule 3:16(b) to insist on being present through to the trial's conclusion and the rendering of the verdict. Because the record does not establish that the Rule's conditions for waiver were satisfied, we must conclude that defendant's right to presence under Rule 3:16(b) was violated, unfairly, through no action of his own. We therefore reverse and remand for a new trial because the proceedings that were allowed to occur here were defective and unjust. We reach that conclusion having considered the deprivation to defendant as well as the harm to the public's institutional interest in a judiciary that provides fair, public trials for those accused of criminal offenses.


It is unnecessary to the issues on appeal to recount in detail the circumstances that led to the three charges on which defendant was tried in Bergen County. Suffice it to say that, following a disagreement and alleged physical altercation between defendant and a firefighter who was responding to a fire, defendant allegedly produced for law enforcement officers a motor vehicle insurance card that appeared to be fake. Defendant was charged with the fourth-degree offense of knowingly exhibiting or displaying to a law enforcement officer a falsely made, forged, altered, counterfeited or simulated motor vehicle insurance identification card, N.J.S.A. 2C:21- 2.3(b) (count one); the fourth-degree offense of uttering a writing or record knowing that it contains a false statement or information, with the purpose to deceive or injure anyone or to conceal any wrongdoing, N.J.S.A. 2C:21-4(a) (count two); and third-degree aggravated assault for purposely, knowingly, or recklessly causing bodily injury to a firefighter, N.J.S.A. 2C:12-1(b)(5)(b) (count three).

Defendant's trial commenced on October 30, 2007, and continued through November 1, 2007, when the jury began deliberations. While the jury deliberated, an exchange occurred among the court, counsel, and defendant concerning the arrival of Morris County sheriff's officers to arrest defendant on a violation of probation. We recite the exchange, and the ensuing discussions with the jury, in full.

The Court: [Defense counsel] can I have your attention?

[Defense Counsel]: Yes.

The Court: I've been informed that they want [defendant] for violation of probation. It's a good warrant. They will come and pick him up when we are done with this, with our case. Bail wouldn't change. He has $50,000. No matter what happens I'm not going to remand him to jail.

[Defense Counsel]: He's got to be remanded on our case, right?

The Court: No. Not on our case. It's a third degree. He has $50,000 bail. But he's going to be put in custody now until Morris County wants him and picks him up.

[Defendant]: Violation of probation?

The Court: Yes.

Court Officer: Failure to appear on SLAP.

[Defendant]: My case was on appeal. I understand that. My case is on ...

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