On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-08-0737.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013 - Before Judges Fisher, Waugh and St. John.
While conducting surveillance of an area near a Plainfield train station on May 5, 2008, two officers first observed and later pulled over and detained, on the basis of a moving violation, a vehicle in which defendant was a passenger. The officers detected a strong odor of marijuana and subsequently found marijuana while conducting a search of the vehicle. Defendant and the vehicle's driver were arrested.
The transporting officer observed defendant moving excessively in the backseat of the police vehicle, as if defendant was trying to place his hands inside the back of his pants. When defendant was removed from the vehicle at the police station, the officer searched the rear seat and found a sandwich bag containing twenty-one smaller plastic bags filled with crack cocaine. Once in the station, a search of defendant uncovered another sandwich bag containing eighteen smaller plastic bags containing crack cocaine.
Defendant was indicted and charged with: third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3) (count two); third-degree CDS possession with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree CDS possession with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).
Prior to trial, the judge conducted a hearing to consider defendant's request to represent himself at trial. The judge granted the request, appointed standby counsel, and established a May 26, 2009 trial date. Defendant acknowledged he understood the judge's warning that the trial would proceed without him if he did not appear on the trial date.
Defendant failed to appear for trial on May 26, 2009. The judge adjourned the matter until the next day. When defendant again failed to appear, the judge revoked defendant's right to represent himself and declared that the trial would proceed in defendant's absence. Standby counsel*fn1 requested a continuance until such time as defendant was taken into custody or otherwise appeared. The judge denied that request.
The trial occurred, without defendant, on May 27 and 28, 2009. The jury found defendant guilty of all charges except count three.
Defendant appeared for sentencing on September 10, 2010. After a merger of counts one and two into count four, the judge imposed a nine-year prison term subject to a four-year period of parole disqualification.
Defendant appeals, arguing:
I. THE TRIAL COURT ERRED IN DENYING TRIAL COUNSEL'S REQUEST FOR A CONTINUANCE BASED ON THE FACT THAT TRIAL COUNSEL HAD NEVER MET MR. MORGAN PRIOR TO HIS TRIAL IN ABSENTIA.
II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY NOT TO CONSIDER MR. MORGAN'S ABSENCE FROM TRIAL ...