On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-04-0274 and 04-04-0354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne and Hayden.
Defendant Tomiko S. Floyd appeals from two February 2, 2003 judgments of conviction on one count of receiving stolen property, Indictment No. 04-04-0354, and four counts of possession and intent to distribute controlled dangerous substances (CDS), Indictment No. 04-04-0274. For reasons that follow, we reverse his conviction for Indictment 04-04-0354 and affirm his conviction under the second indictment.
Tried in absentia on Indictment No. 04-04-0354, defendant was convicted by a jury on May 17, 2005 of third-degree receiving stolen property, an automobile, N.J.S.A. 2C:20-7. The next day, with defendant present, the trial commenced on Indictment No. 04-04-0274, and defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-7.1.
On indictment No. 04-04-0274, after the requisite mergers, the judge sentenced defendant to ten years in prison with a three-year parole disqualifier. On Indictment No. 04-04-0354, the judge sentenced defendant to a concurrent five-year term with two years of parole ineligibility. The judge also imposed the appropriate fines and penalties. This appeal followed.
We glean from the record that on December 20, 2004, the trial judge, in the presence of defendant, set a March 21, 2005 trial date for both indictments. The judge informed defendant that if he did not show up for the scheduled trials, the trials would proceed and he would be bound by the verdicts. Apparently, the March 21 trials did not occur, but the record does not contain an explanation. Defendant represented that he had appeared for the March 21 trial but his attorney was unavailable so he received a new trial date in April. Prior to the April trial date, defendant received a call from his attorney's office that the trial was postponed but he was not informed of the new trial date.
On May 16, 2005, both cases were again scheduled for trial but defendant did not appear. His defense counsel told the judge that he had been unable to reach defendant by phone as his cell phone had been disconnected and his home number went to an answering machine. Counsel did not indicate that he left a message. Defense counsel further stated that he had written defendant a letter on the previous Friday, telling him to appear for trial the following Monday. The judge decided to hold the trial without defendant being present because he had supposedly received actual notice. The trial began in the morning and the jury returned a guilty verdict that afternoon.
The following day, having been arrested on the warrant issued the previous day, defendant appeared in court. Defendant told the judge that he had not received any notice of the scheduled trial date as he had been verbally notified of the April trial adjournment without being informed of the new trial date. The defendant also stated that his attorney had sent the letter to the wrong address, where he had not lived in two years. Defendant explained to the trial judge that when he first appeared in court in reference to the two indictments, he had informed the court, on the record, of his current address, where he still lived. Defendant pointed out that when the sheriff's officers came that morning to arrest him on the warrant, they came to his correct address, which was in the court record.
The State produced Officer Davis Conrad of the Elizabeth Police Department, who was in court to appear at the trial on the second indictment. According to the officer, three weeks earlier he had arrested defendant on open warrants. At that time defendant stated, without giving a specific date, that he was due to appear in court, not the coming week but the following week, which, based upon the date of the conversation, Conrad took to mean the week of May 16.
Before sentencing, defendant, through new counsel, moved for a new trial. He produced a certification*fn1 from Officer Donnelly of the Elizabeth Police Department, showing that defendant was arrested by Officer Conrad on the warrant on Monday, May 9, only one week prior to the trial. Counsel had subpoenaed Officer Donnelly, who was available to testify. Additionally, counsel pointed out that there was no record in the court's file or the prior defense attorney's file of the court or defense counsel having sent any notice to defendant about the May trial dates. The assistant prosecutor did not disagree with the certification or request the officer appear for testimony. The prosecutor agreed that there was no record of defendant having been given notice of the May trial date, but argued that the absence of a record did not mean notice had not been given.
The trial judge denied defendant's motion for a new trial, on the basis that once a defendant had been given notice of a trial date, failure to appear on the trial date or any adjourned trial date was a waiver of the right to be present at trial. The judge stated he was satisfied that defendant had ...