December 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ORLANDO A. RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 56-09-P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Fisher and Nugent.
In this appeal of a driving-while-intoxicated (DWI) conviction, N.J.S.A. 39:4-50, defendant contends there was a "structural rift" in the municipal proceedings because he was not present nor afforded the right to be present when the judge rendered an oral opinion finding defendant guilty. Because that oral opinion was lost and because the municipal judge rendered a new oral opinion -- while defendant and his counsel were present -- to replace it, we answer negatively what could be said to be the legal version of the metaphysical cliche: "if a tree falls in the woods and no one is present, does it make a sound?"
On July 23, 2009, during summations in municipal court, the judge acceded to defense counsel's request to submit a memorandum of law on a particular point of law no longer relevant. The judge suggested and counsel agreed as follows as to how the matter would thereafter proceed:
THE COURT: All right. Okay. So you'll [submit a memorandum of law]?
PROSECUTOR: I -- he'll [defense counsel] do it, not me.
DEFENSE COUNSEL: Yeah. I could provide that.
THE COURT: Right. Yeah. That's what I mean. You'll provide it to each of us. And then that's it, then the case is over. DEFENSE COUNSEL: Yes, sir.
THE COURT: The case is closed.
PROSECUTOR: As far as I know.
THE COURT: That's it, and then I -- then I issue my opinion.
PROSECUTOR: That's fair.
DEFENSE COUNSEL: Yes, sir.
On September 8, 2009, the municipal judge wrote to both attorneys, advising that a decision, which explained the basis for a finding that defendant was guilty of DWI and careless driving, "has been placed on the record"; the letter also advised the parties of the date scheduled for sentencing. A few days later, defense counsel wrote to the municipal judge, expressing that he was "troubled" that the decision was placed on the record without notifying defendant or giving him an opportunity to be present. Counsel asserted that, as a result, it was "incumbent upon the [c]court, sua sponte, to order a transcript of its opinion for distribution to counsel free of charge" in advance of sentencing so he could review it with defendant and reach an informed decision as to how defendant might wish to proceed. The judge responded a few days later, explaining that the decision on the merits had been delayed by defense counsel's request to submit a memorandum of law and that, after considering the memorandum, the judge had placed his decision on the record "after court one evening." The judge added that he was not "aware of any authority that would permit [him] to provide [defendant] with a transcript of the decision" and advised defense counsel that if he wanted a transcript he would have to order it.
The record next reveals that the judge entered an order on January 28, 2010, which "suspended" the proceedings pending the Supreme Court's disposition of an appeal regarding a defendant's absence during deliberations and the jury's rendering of its verdict. State v. Dellisanti, 203 N.J. 444 (2010).
Once the Supreme Court rendered its first opinion in Dellisanti, id. at 448,*fn1 the matter was brought back before the municipal judge on May 6, 2010. At that time, defendant first sought a new trial, arguing there was a structural defect in the proceedings because he was not given notice or an opportunity to appear when the judge rendered his oral opinion. The judge disagreed, finding Dellisanti distinguishable for a number of reasons we need not now explore.*fn2 The judge also concluded that because the recording of the oral opinion was lost, it was as if that prior event had never occurred. As a result, the judge denied defendant's motion for a new trial, rendered an oral opinion explaining why he had found defendant guilty of DWI and careless driving, and sentenced defendant, who, as a sixth time DWI offender, was not only fined but also received a ten-year suspension of his license and a one-hundred-and-eighty day jail sentence.
Defendant filed an appeal to the Law Division, again arguing his entitlement to a new trial due to what he claimed was a structural defect in the proceedings. For reasons thoroughly expressed in a written opinion, the Law Division judge rejected defendant's claim of a right to a new trial and imposed the same sentence.*fn3
In appealing to this court, defendant again reprises his claim of a structural defect, posing the following two arguments:
I. THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL PREMISED ON THE TRIAL COURT'S VIOLATION OF R. 3:16(b).
II. THE LAW DIVISION ERRONEOUSLY APPLIED A "HARMLESS-ERROR" ANALYSIS TO DENY THE DEFENDANT A NEW TRIAL, RATHER THAN RECOGNIZING THAT A "STRUCTURAL RIFT" IN THE TRIAL OCCURRED WHICH COULD ONLY BE REMEDIED BY GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL.
We find these arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
In essence, we reject defendant's arguments on a very narrow ground. That is, we find it is not necessary to consider the weighty question of whether defendant had a right to be present when the municipal judge rendered his initial oral opinion in this non-jury matter. And we need not consider whether what transpired between the municipal judge and counsel during the colloquy quoted above amounted to a waiver of a right to be present when the judge's decision was ultimately placed on the record. Our rejection of defendant's appeal rests on the simple fact that the proceeding which occurred in defendant's absence was either never actually recorded or was recorded but lost before transcription.*fn4 The point is that regardless of what occurred with the judge's initial oral decision, what then occurred is no longer available and, more importantly, never played a role in the adjudication. We, thus, examine the issues presented as if that particular event never occurred, and, consequently, we conclude that the municipal judge's failure to give defendant the opportunity to be present on that earlier occasion does not constitute a structural error. We reach that conclusion not because the judge did not err in proceeding in defendant's absence -- a question we do not decide -- but because the event did not form part of the structure utilized to find defendant guilty.
Affirmed. The stay of the jail sentence portion of the judgment is hereby vacated.