On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-09-01179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 1, 2010 - Decided Before Judges Fisher and Simonelli.
Defendant James Rippy was charged with second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The charges stemmed from his and co-defendant David Rivera's assault and robbery of the victim in the victim's apartment. Defendant was tried in absentia and convicted on all charges. He was sentenced to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In this appeal, defendant contends that the trial judge committed plain error by failing to sua sponte instruct the jury on his absence from the trial and by giving an erroneous instruction on coconspirator liability for the robbery. Because we agree with these contentions, we are constrained to reverse and remand for a new trial.
It is improper for a trial court to instruct "the jury that it could consider defendant's voluntary absence from the trial as evidence of flight, that is, evidence of consciousness of guilt . . . . " State v. Ingram, 196 N.J. 23, 44 (2008). "In the case of an absentee defendant . . . the facts relating to the absence are unknown. The absence from trial is not necessarily probative of guilt at all, but is highly prejudicial under any circumstance." State v. Horne, 376 N.J. Super. 201, 213 (App. Div.), certif. denied, 185 N.J. 264 (2005). To prevent prejudice, the court should instruct on the defendant's absence from trial. At the time of the trial in this case, the model charge on the defendant's absence from trial was combined with the model charge on the defendant's election not to testify:
As you know, (defendant) elected not to testify at trial. It is his/her constitutional right to remain silent[.]
You must not consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.
(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent even if he/she chooses not to testify.
As you know, (defendant) was absent from the trial. You should not speculate about the reason for his/her absence.
You are not to consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) was not present at trial. That fact should not enter into your deliberations or discussions in any manner, at any time.
(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent ...