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State v. Dellisanti

SUPREME COURT OF NEW JERSEY


April 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK G. DELLISANTI, DEFENDANT-APPELLANT.

On appeal from and 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).

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.

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

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.

I.

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 appeal from Morris.

The Court: All I know.

Court Officer: Appeal denied. Letter sent.

[Defendant]: That's not true. Whatever.

The Court: They'll pick you up.

[Defendant]: I'm telling you.

The Court: All right.

[(Emphasis added).]

The court recessed for lunch, and jury deliberations continued at 1:30 p.m. Defendant was not present in the courtroom for the remainder of the trial. The record resumes with the court addressing with counsel two questions posed by the jury:

The Court: I will mark this as C-2. You all have a copy. "When was the aggravated assault charge made"? I guess it was made by the Grand Jury. The Grand Jury returned its indictment, it was made.

[Defense Counsel]: Okay.

The Court: "Is there an EMT report"? Yes. But it wasn't marked into evidence. Don't tell me there was an ambulance report. Your client is not here. I will tell them he got a medical problem. The Court excused him so he could take care of it. Any objection to that?

[Defense Counsel]: No.

The Court: He's not feeling well. He had medical problems. The Court excused him to take care of it.

[Defense Counsel]: Right.

The Court: Okay. Let's bring the jury out.

(Jury enters courtroom at 1:44 p.m.)

The Court: All right. You want to call the roll and make sure everybody is here. Would you stipulate that everybody is present?

[Defense Counsel]: Yes.

[Prosecutor]: Yes.

The Court: The first item. [Defendant] is not here. He wasn't feeling well. He asked to be excused to seek medical attention. That's why he's not here. Now, the first, we have I [sic] marked C-2. Your question. "When was the aggravated assault charge made"? Actually that was made by the Grand Jury. When they heard the case they returned an Indictment with that charge in it. There was no complaint signed prior to the Grand Jury action. And question, the second part. "Is there an EMT report"? There was a Lodi ambulance report. No one moved it into evidence. So, you don't get it. Rely upon your collective recollection, what the testimony was. Go, and go over it, and resolve it that way. The report was not marked by anyone. Therefore, you don't receive it. That takes care of your questions. I'm sorry for the delay. It takes time to gather things together when it comes from different places. Thank you. All twelve of you have to agree to stay beyond five. If you have something important, don't stay. If you stay beyond five let us know so we can tell the staff and they can make their arrangements.

(Jury and alternates leave courtroom at this time.)

The Court: Any objection?

[Defense Counsel]: No.

[Prosecutor]: Nothing.

(Jury deliberates.) (Jury and alternates enter the courtroom at 2:08 p.m.)

The Court: She'll call the roll. Respond here when your name is called.

(Alternates are present at this time also.)

The Court: Everybody have those papers.

All right. Now, you want to stand up. Has the jury reached a verdict?

The Foreperson: Yes.

[(Emphasis added).]

The jury found defendant guilty of the two fourth-degree charges concerning the insurance card, but acquitted him of aggravated assault. At defense counsel's request, the jurors were polled. At sentencing, the court merged the two convictions and sentenced defendant to ninety days in the Bergen County jail as a condition of serving one year of probation. The court also ordered fines, fees and applicable penalties.

Defendant appealed, citing various trial errors, one of which brought this matter to us on an appeal of right. See R. 2:2-1(a). Defendant claimed that the court erred in continuing the trial in his absence after he was taken into custody on a warrant for a violation of probation. Defendant asserted a violation of his constitutional right to be present at trial. In a split decision, the Appellate Division affirmed defendant's convictions.

The majority opinion found it "readily apparent that defendant's absence caused him no prejudice" because questions posed by the jury to the court during deliberations concerned the aggravated assault charge, of which he was acquitted. The majority reasoned that the jury's questions were "straightforward, did not involve any arcane or sophisticated legal principle, or involve a disputed fact issue" and that, therefore, defendant's presence would have brought no consequential benefit to his defense. It conceded that "it would have been beneficial if the record contained an explanation of the necessity to remove defendant from the courtroom at the start of deliberations rather than following the return of the jury verdict." That said, because the record did not disclose any objection by defense counsel, the majority evaluated defendant's absence under a harmless-error standard and concluded: "[w]e are mindful that some argue that constitutional error can never be harmless. Where as here, defendant has not identified any harm occasioned by his absence, and we can discern no harm, the error is harmless and does not require a new trial."

The dissenting judge, pointing to Rule 3:16(b), regarded "[t]he nonconsensual removal of defendant from the courtroom before the completion of his trial [to be] an error of constitutional dimension," and argued that a structural-error analysis applied. Under such an analysis, the dissent explained, it is irrelevant whether overwhelming evidence exists against the accused; the analysis focuses on the constitutional deprivation. The dissenting judge concluded that "defendant's removal from the courtroom prior to the completion of his trial caused a rift in the structure that produced the judgment which can only be repaired by a new trial." Even if a harmless-error analysis were appropriate, the dissent disagreed with the majority's conclusion, commenting that "it cannot be said beyond a reasonable doubt that the jury's sense of responsibility remained undiminished once told that defendant had left because he 'wasn't feeling well.'" Defendant was deprived of the psychological influence that he could have exerted over the jury by being present and, also, was potentially harmed by the "concocted reasons" and "lame excuse" that the trial judge gave to the jury to explain defendant's absence.

Because of the dissent in the Appellate Division, the issue is before us as of right. R. 2:2-1(a). We also granted defendant's petition for certification, which raised the same issue and one other: whether the Appellate Division was mistaken to have found no reversible error in the trial court's allowance of prosecutorial questioning of defendant that compelled him to comment on the credibility of the State's witnesses. 200 N.J. 504 (2009).

II.

A.

The right 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. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed. 2d 486, 490 (1985); Hudson, supra, 119 N.J. at 171-72 (reviewing constitutional and earlier common law roots of right to presence). 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. Gagnon, supra, 470 U.S. at 526, 105 S.Ct. at 1484, 84 L.Ed. 2d at 490; Hudson, supra, 119 N.J. at 171. In combination, those constitutional protections provide a defendant with the right to be present at every stage of trial "whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934); see State v. Auld, 2 N.J. 426, 433-35 (1949) (following Snyder's approach to claimed due process deprivation of right to presence).

In Hudson, supra, Justice Stein, writing for our Court, traced the essential nature of the defendant's personal right to confront the witnesses against him and to assist in the presentation of his defense during the trial's proceedings, and explained that it also serves larger due process considerations, including protection of the public's interest in the provision of fair and just criminal proceedings. 119 N.J. at 171 (citations omitted). Thus, the right operates on two planes; presence at trial affords a defendant the ability to communicate with counsel during trial, assist in presentation of a defense, and in the process of cross-examination. It includes the independent right of a defendant to represent himself or herself at all stages of a criminal proceeding, if he or she elects to do so. Institutionally, the defendant's right to be present at trial ensures public confidence in the courts as instruments of justice. [Id. at 172 (citations omitted).]

The right is so vital to the proper and fair functioning of the criminal justice system that it is protected by a specific rule. New Jersey's Rule 3:16(b) provides in pertinent part:

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 acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

The Rule's 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. See R. 2:10-2 (1949) (current version at R. 3:16); see also Fed. R. Crim. P. 43 (1946). Ever since the modern New Jersey court rules first were adopted following passage of the 1947 Constitution,*fn1 a variant of present Rule 3:16(b) has existed, although its history precedes even the development of formal rules of criminal practice.

The first set of court rules under the 1947 Constitution, the result of a cooperative effort overseen by the justices of the first New Jersey Supreme Court, were drafted by a team drawn from the members of the bar and aided by suggestions and commentary from judges and lawyers throughout the State. George S. Harris, Foreword, Rutgers L. Rev. (Special Number) iii (1948). As rules of procedure were proposed, revised, and finalized, the drafters acknowledged that they drew inspiration from existing law and custom, including the newly adopted federal rules governing criminal practice.*fn2 See Duane E. Minard, Jr., The Rules of Criminal Practice in the Superior Court and County Courts, Rutgers L. Rev. (Special Number) 138 (1948) ("[T]hese rules are marked less by innovation than by their recognizable restatement of law and practice as it previously existed in New Jersey. This, plus the fact that they are patterned after the Rules of Criminal Practice in the Federal Courts, practically robs them of any novelty.").

Like the United States Supreme Court's criminal practice rules, New Jersey's newly formed criminal practice rules highlighted a defendant's right to presence throughout the trial proceedings against him, taking pains to detail the parts to which the right attached. The initial rule, Rule 2:10-2,*fn3 provided:

The defendant shall be present at the arraignment, at the pretrial conference if any, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.

[R. 2:10-2 (1948) (current version at R. 3:16).]*fn4

Notwithstanding adjustments made to the rule along the way, 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 the impaneling of the jury and the return of the verdict, and at the imposition of sentence . . . ." R. 2:10-2 (1948); and R. 3:16(b) (2010) (with comma after "trial").

B.

In the more than sixty years since the adoption of the criminal practice rules and their inclusion of an express protection of a defendant's right to presence at trial, this Court has been called upon, on numerous occasions, to determine whether a defendant's right to presence under the court rule has been violated and, if so, what remedy should flow from the violation. Many of our cases have explored the circumstances under which a trial in absentia is permissible,*fn5 see, e.g., State v. Grenci, 197 N.J. 604, 619-21 (2009); State v. Luna, 193 N.J. 202 (2007); State v. Whaley, 168 N.J. 94, 103-05 (2001); Hudson, supra, 119 N.J. 165. Others have evaluated the significance of a defendant's absence during a particular portion of the proceedings. See Hudson, supra, 119 N.J. at 176 (collecting examples of cases in which defendant's absence was determined not to constitute reversible error). The latter category of cases is the more relevant to the present matter.

The earliest case to assess a defendant's absence from a portion of his trial proceedings following adoption of the court rules was handed down the same year that the rules took effect. See Auld, supra, 2 N.J. 426. The Court was asked to consider whether the new rule protecting presence had "the force and effect of law, and assume[d] the status of a constitutional provision." Id. at 434. Our predecessors concluded that the rule was "procedural" and examined the defendant's claimed violation to his right to presence under due process considerations and under the rule. Ibid.

In Auld, the defendant alleged two violations of his right to presence at every stage of trial, neither of which implicated confrontation interests: first, that he was not in the courtroom when the judge responded, in writing, to a written jury request for clarification of the potential verdicts; and second, that he was excluded from the courtroom when motions on questions of law were argued by counsel. Id. at 431-34. Conceding that "[u]nfortunate, inexcusable and irregular incidents amounting to bad procedural practice occurred during the course of the trial of the case," the Court nevertheless rejected defendant's due process arguments that sought the reversal of his conviction. Id. at 431-33. In doing so the Court relied, in part, on Snyder, supra, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674,*fn6 for the propositions that due process requires only that a defendant be able to contribute to his defense and that a violation of defendant's due process right to presence must be assessed from the perspective of whether a fair and just hearing was thwarted by defendant's absence. See Auld, supra, 2 N.J. at 434. With respect to defendant's right to be present to contribute to his defense, our Court held that "the sole test is whether such irregularities prejudice the defendant in maintaining his defense on the merits." Id. at 434-35.*fn7 In the absence of a showing of such prejudice in the case before it, the Court declined to reverse defendant's conviction. Id. at 439-40. The Court found that the lack of prejudice to defendant was fatal to his claim of a due process deprivation and to his claim that the violation of the express provision of Rule 2:10-2, guaranteeing him a right to be present at "every stage of the trial," entitled him to a reversal of his conviction. Id. at 434-35.

Since Auld, claims of error where a defendant was absent from a stage of trial are examined for prejudice. Specifically our decisions have examined whether the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense. See, e.g., State v. Byrd, 198 N.J. 319, 353-57 (2009); State v. Colbert, 190 N.J. 14, 21-24 (2007); State v. W.A., 184 N.J. 45, 64-67 (2005); State v. Morton, 155 N.J. 383, 444-45 (1998). The case law reflects our 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. In that regard, the cases do not demonstrate 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. Compare Byrd, supra, 198 N.J. at 353-57 (affirming reversal of conviction on constitutional and procedural grounds where trial court made credibility determinations following in camera evidentiary hearing with witness from which defendant and his counsel were excluded), and W.A., supra, 184 N.J. at 64-67 (remanding for new trial where defendant was excluded from sidebar conferences during voir dire and denied meaningful ability to challenge potentially unsympathetic juror), with Colbert, supra, 190 N.J. at 23-24 (reinstating conviction where satisfactory lawyer-shuttle system was used to communicate details of sidebar conferences with defendant who was present in courtroom, but not physically at sidebar), and Morton, supra, 155 N.J. at 444-45 (1998) (finding no reversible error where defendant was absent from pretrial motions limited to questions of law).

That said, no decision of our Court has confronted a fact pattern akin to the present case, where a seemingly unwilling defendant was hauled from the courtroom by another vicinage's law enforcement officers while awaiting the jury's return from deliberating on his verdict, and thereby was deprived of the right, clearly granted him under Rule 3:16(b), to be present and face his jury when it returned its verdict. The closest to the point was a matter bearing strong similarities to the present one, but which arose prior to adoption of the court rules, in which then-Judge William J. Brennan, Jr., writing for the Appellate Division, found no constitutional basis for the defendant's contention that the return of a privy verdict*fn8 in his absence due to incarceration required the voiding of the verdict on a habeas corpus application. In re Graham, 13 N.J. Super. 449, 453 (App. Div.), certif. denied, 7 N.J. 582 (1951), cert. denied sub nom., Graham v. Warden, N.J. State Prison, 342 U.S. 930, 72 S.Ct. 372, 96 L.Ed. 692 (1952).

In Graham, the court distinguished the defendant's offense, incest, a non-felony under the common law, from those which at common law required the defendant's presence at the time of the verdict's rendering, which included treason, felonies, and crimes punishable by death or dismemberment. Id. at 451.*fn9 The court further distinguished the defendant's constitutional right to be present "when testimony is presented or the jury is instructed . . . because he is entitled . . . to confront the witnesses against him and to make his defense upon the merits with the assistance of counsel," id. at 454, but found that "such reasons for his presence do not obtain after the jury has concluded its deliberations and . . . the verdict is reported." Ibid. Importantly, however, then-Judge Brennan noted, but did not decide, whether a different result should apply in view of the new rule's mandate that the defendant was entitled to be present through the return of the verdict.

Although several courts in other jurisdictions have addressed arguments about the constitutional dimensions of the right to be present through the rendering of a verdict,*fn10 we see no reason to enter that thicket when Rule 3:16(b) offers our courts such a clear directive that a defendant's right to presence includes the right to be present at the delivering of the verdict. See, e.g., Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation."). The sole question as we see it is to determine what import to give to the type of interference with Rule 3:16(b)'s prescriptive terms that occurred involuntarily to defendant here.

III.

Rule 3:16(b) provides all defendants, no matter the level of the offense at common law, with the right to be present through the return of the verdict and the polling of the jury. See Graham, supra, 13 N.J. Super. at 451-53 (describing common law approach to right to presence). The Rule's clear requirement renders untenable what was allowed to occur at defendant's trial. There is no way to reconcile the Rule's direct requirements and an affirmance of defendant's convictions based on the proceedings below. Simply put, we cannot and will not abide the proceedings that occurred here, for what was done to defendant by law enforcement officers of another county of this state, with the seeming cooperation of the court presiding over defendant's ongoing Bergen County trial on criminal charges, was neither just nor fair.

While one can only speculate on the likely effect defendant's absence from the courtroom had on the jury, we do not view defendant's absence, lamely and falsely explained to the jury by the court, to have been insignificant. Unless the record had revealed that defendant waived his right to be present, or it was otherwise shown that defendant's right to presence was forfeited due to his own action or inattention, we cannot tolerate a law enforcement agency's removal of defendant from his trial courtroom, thereby forcibly preventing him from being able to confront the returning jury, with its verdict, by his presence. We hold that those circumstances rendered defendant's trial defective and unjust and require the reversal of his convictions. To hold otherwise on these facts, would render Rule 3:16(b) a hollow promise indeed.

The barren record provides no measure of assurance that defendant voluntarily agreed to skip the ultimate stages of his trial, which included the psychologically significant opportunity to confront the jurors with his presence when they rendered their verdict and were polled. We agree with the dissent below that this defect in the proceedings was not harmless, or de minimis, in any respect for defendant. Defendant 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. Defendant's loss of his right to be present through the rendering of the verdict under Rule 3:16(b) also had the clear capacity to diminish the public's perception of the integrity, fairness, and justness of the hearing that was being provided on the criminal charges brought against defendant. In sum, Rule 3:16(b)'s clear promise to defendant was breached and we hold that the breach was prejudicial to defendant and to the institutional interests that the Rule is designed to foster.

Moreover, to promote compliance with the Rule's salutary purposes and promises to criminal defendants in particular and to the public at large, we further hold that the trial court must ensure that a warrant from another jurisdiction does not prevent a defendant from being present during his 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. The trial court must not cede control over his or her courtroom. A defendant's right to insist on continued presence through the completion of his or her own trial depends on the trial court's exercise of its authority over the judicial proceedings. Because we have no such demonstration that defendant Dellisanti's absence was voluntary in these exceptional circumstances, we conclude that he was impermissibly denied his right under Rule 3:16(b) to be present through the return of the jury's verdict. Accordingly, we reverse and remand for a new trial.

IV.

For completeness, we note that in addition to the appeal as of right concerning the construction of Rule 3:16(b), we granted defendant's petition for certification, which also alleged trial court error in allowing certain questions posed by the prosecutor when cross-examining defendant. 200 N.J. 504 (2009). Because we are remanding for a new trial, we only briefly address the issue in order that the claimed error can be avoided at the retrial.

During trial, defendant testified on his own behalf. Not surprisingly, his version of events differed dramatically from the version presented by the State through the testimony of two police officers and a firefighter. In an apparent attempt to portray defendant's defensive testimony as suggestive of a conspiracy among the State's witnesses to "get him," on cross-examination, the prosecutor pursued the following line with defendant:

It's your testimony [that the firefighter] is making all this up to get back at you? . . . .

So, if we accept your version of events, [the firefighter] is either lying or completely mistaken about who hit him . . ., correct? . . . .

So, [the firefighter] is either mistaken or lying about what he testified to? Regarding getting hit by your truck, right? . . . .

And also if we accept your version of the events, [the police lieutenant] was outright lying, you never said anything to him about . . . the insurance certificate? . . . . [The police lieutenant] is also lying? . . . .

In your investigation of the events [the police lieutenant] is simply not telling the truth . . . ? . . . .

[The police sergeant and lieutenant] is [sic] lying? . . . .

[The lieutenant] is lying, [the sergeant] is lying, [the firefighter] is lying, correct?

Defendant contends that, through this line of questioning, he was forced to assess the credibility of the witnesses against him. The State counters that the prosecutor's questions were directed at defendant's claims of a conspiracy against him and, nevertheless, were harmless if erroneous. The Appellate Division found that the line of questions was improper, but concluded that defendant was not denied a fair trial as a result of that questioning because he was acquitted of the aggravated assault charge, and because the trial court provided proper instructions to the jury regarding its duties concerning credibility determinations.

"[C]redibility is an issue which is peculiarly within the jury's ken and with respect to which ordinarily jurors require no expert assistance." State v. Frisby, 174 N.J. 583, 595 (2002) (internal quotation marks and citation omitted). Like the facts presented in Frisby, the State's case against defendant involved a "pitched credibility battle" between defendant and the police officers and firefighters. See id. at 596. We agree with defendant and with the Appellate Division that the prosecutor's line of questioning compelled defendant 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 the defendant's conspiracy theory, it must do so without asking the defendant repeatedly to comment on whether another testifying witness or witnesses are lying.

V.

We reverse defendant's convictions and remand for a new trial.

CHIEF JUSTICE RABNER and JUSTICES LONG, ABLIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LaVECCHIA's opinion.

Chief Justice Rabner PRESIDING


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