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State v. Ciccolello

Superior Court of New Jersey, Appellate Division

July 24, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ALEXANDER J. CICCOLELLO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1342.

Diane Toscano, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Toscano, of counsel and on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, on the briefs).

Appellant filed a supplemental pro se brief.

Before Judges Parrillo, Sabatino and Maven.

PER CURIAM

Following a jury trial, defendant Alexander Ciccolello was convicted on both counts of the indictment, for second-degree eluding, N.J.S.A. 2C:29-2(b) (count one), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count two). The judge sentenced defendant to fifteen years of incarceration with a seven and one-half-year period of parole ineligibility, a concurrent eighteen-month term for resisting arrest, and mandatory fines and penalties.

Defendant raises the following points on appeal:

I. [DEFENDANT] DID NOT KNOWINGLY WAIVE HIS RIGHT TO COUNSEL BECAUSE, AFTER HE INDICATED HIS DESIRE TO REPRESENT HIMSELF, THE COURT GRANTED HIS REQUEST WITHOUT A THOROUGH INQUIRY INTO HIS ABILITY TO DO SO AND WITHOUT INFORMING HIM OF THE ELEMENTS OF THE OFFENSES CHARGED, THE MAXIMUM SENTENCE HE WAS FACING, AVAILABLE DEFENSES, OR OTHER FACTS CRITICAL TO A KNOWING AND INTELLIGENT WAIVER OF COUNSEL. U.S. CONST. AMEND. VI; N.J. CONST. ART. I, [¶] 1, 10.
II. THE IMPROPER ADMISSION OF OFFICER ELLMYER'S TESTIMONY REGARDING THE PROCESS BY WHICH A WARRANT WAS ISSUED FOR DEFENDANT'S ARREST, AND THE PROSECUTOR'S REPEATED COMMENTS ON THAT TESTIMONY IN HIS SUMMATION, WAS HIGHLY PREJUDICIAL AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
III.THE TRIAL COURT'S REFUSAL TO GRANT DEFENDANT'S MOTION FOR ANCILLARY SERVICES TO RETAIN AN EXPERT MEDICAL WITNESS INTERFERED WITH DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, [¶] 1, 10.
IV. THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. . . . ART. I, [¶] 1, 9 AND 10. (Not Raised Below).
V. IRRELEVANT [N.J.R.E.] 404(B) EVIDENCE, INCLUDING THE PROSECUTOR'S QUESTIONS TO DEFENSE WITNESS BAILEY, SUGGESTING THAT POLICE OFFICERS FROM TWO OTHER JURISDICTIONS CAME TO HER HOUSE LOOKING FOR DEFENDANT, DENIED DEFENDANT A FAIR TRIAL. (Raised In Part Below).
VI. ELLMYER'S TESTIMONY THAT BASED ON HIS INVESTIGATION, HE WAS SATISFIED THAT DEFENDANT WAS THE DRIVER OF THE CAR, CONSTITUTED IMPERMISSIBLE OPINION TESTIMONY, USURPED THE FUNCTION OF THE JURY, AND DENIED DEFENDANT A FAIR TRIAL.
VII.DEFENDANT'S EXTENDED TERM SENTENCE OF FIFTEEN YEARS WITH SEVEN AND ONE-HALF YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND MUST BE REDUCED.

Defendant filed a pro se supplemental brief. In that brief, he raises the following additional points:

VIII. THE IMPROPER ADMISSION OF OFFICER ELLMYER'S TESTIMONY REGARDING [N.J.R.E.] 803; HEARSAY EVIDENCE BETWEEN HIM AND LISTED STATE'S WITNESS DAVID CONNERS IN ATTEMPT TO CORROBOR[A]TE EVIDENCE TO STATE'S CASE; STATE FAILED TO PRODUCE EVIDENCE DAVID CONNERS AT TRIAL DENIED PETITIONER OTHER CONSTITUTIONAL RIGHTS TO PRESENT EVIDENCE IN HIS DEFENSE UNDER DUE PROCESS AND COMPULSORY PROCESS PROVISIONS OF THE STATE AND FEDERAL CONSTITUTION; THUS DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL.
IX. SEE STATE V. FEASTER, 184 [N.J.] 235 (2005); N.J. CONST. ART I[, ] [¶] 10; U.S. CONST. AMENDS. V[, ] VII AND XIV THE RIGHT TO PRESENT WITNESSES IN THE RIGHT TO DEFENSE. WASHINGTON V. TEXAS, 388 U.S. 14[, ] 87 S.Ct. 1920[, 18 L.Ed.2d 1019] (1967); STANDBY COUNSEL FAILED TO SUPPORT [DEFENDANT'S] DEFENSE WITH EXCULPATORY TESTIMONY, [DEFENDANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE[.] THIS REQUIRES VACATION OF THE GUILTY VERDICT AND SENTENCE. R. 3:22-2(a); STRIC[K]LAND V. WASHINGTON, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]; STATE V. FRITZ[, 105 N.J. 42 (1987)]. (Not raised below)[.] STATE V. ERNST, [230 N.J.Super. 238 (App. Div.), certif. denied, 117 N.J. 40 (1989)]. (Also not raised below).

We have considered these arguments in light of the record and the applicable legal standards. Because the trial court did not undertake the required colloquy and fully inform defendant of the risks of self-representation, we hereby vacate defendant's conviction and remand the matter for a new trial. However, we affirm the trial court's separate decision rejecting defendant's motion to compel payment for ancillary expert services.

I.

The relevant facts as adduced from the record are as follows. On June 4, 2008, Officer Daniel Ellmyer of the Sayreville Police Department observed a vehicle turning through a red light. Ellmyer activated his emergency lights to initiate a motor vehicle stop; however, the vehicle did not stop. After following the vehicle for several hundred yards, Ellmyer activated his car's siren. After a series of turns, the vehicle moved into the oncoming lane of traffic and, instead of pulling over, the driver moved the car to the side of the road as though he intended to stop. He then turned the car suddenly to the left, fled from the vehicle while it was still slowly moving and ran into the woods. As the vehicle continued rolling forward, the female passenger stopped the car by putting it into park.

Ellmyer asked the passenger the name of the individual who fled from the car, and she gave defendant's name. Ellmyer used his police vehicle's mobile data terminal to obtain a picture of defendant, and the passenger verified that the picture was of defendant.

At the arraignment on October 23, 2008, defendant indicated that he wished to represent himself with the assistance of standby counsel. The judge stated:

Now, Mr. Ciccolello[, ] you have every right to represent yourself. You obviously have been through the system quite a bit. So one might lead[] me further that you have a pretty decent working knowledge of how the system works.
On the other hand, you may apply for the services of the Public Defender. And if you don't like the way they're doing that which they do, you can have them as standby counsel as [counsel] did in this other case[1]so we can assure you get all the information, act almost as a liaison to make sure that you are kept up to speed and up to date. What's your preference sir?

Defendant replied that he wished to represent himself with the assistance of standby counsel.

The judge again discussed defendant's representation during a status conference on December 1, 2008:

THE COURT: All right. I am not suggesting that you not represent yourself. You have that right. Do you understand that?
[DEFENDANT]: Yes, sir.
THE COURT: Having said that, I strongly, most strongly urge you not to. While I understand you have, and I mean no disrespect, an extensive criminal record, you've been through the system many times. I understand that. You've not gone to law school. You've not studied the law. And the simple reality is you're not going to be prepared the way a lawyer would be prepared to represent you because you will be held by the same standards and requirements as if you were an attorney. Do you understand that?
[DEFENDANT]: Yes.
THE COURT: You don't get a break. You don't get any edge because you're representing yourself. Do you understand that?
[DEFENDANT]: Yes, sir.

In response to the judge's question regarding the extent of his education, defendant informed the judge that he had obtained a G.E.D. and had filed and argued eleven motions himself in a previous matter. The judge permitted defendant to represent himself and defendant subsequently obtained standby counsel for this case.

At the January 9, 2009 pretrial proceeding, the judge again advised defendant that self-representation is "not a good idea, " but that he would not stop defendant from exercising his right to represent himself. The judge told defendant that even if representing himself, defendant would be "bound by the same rules as anybody else appearing in court." Defendant reiterated that he had earned a G.E.D., as well as worked as a law clerk in the law libraries at Trenton State Prison and Rahway State Prison, and had been the defendant in a number of trials with a jury. Defendant also informed the judge that he had represented himself in a matter that ended with "a successful plea agreement" and had handled "several . . . pretrial motions" in relation to that case.

Once again, the judge advised defendant at the same proceeding:

[L]ook, I know that [if] you get convicted, you're doing the jail time. That's a heavy burden. . . .
You also [have] to understand, Mr. Ciccolello, that if you're convicted, you'll be sentenced consistent with the criminal code. And given your record, [it is] probably going to be . . . a serious hit.

The judge urged defendant to allow standby counsel to "lead by being the attorney[.]" The judge also informed defendant after defendant began to discuss the factual basis of a possible alibi defense:

[T]his is one of the problems I have with you representing yourself. If your lawyer said that, they can't use it against you. You're saying that, now I wouldn't be surprised if the prosecutor got a copy of the transcript. And if anything else came out, he'd use that admission or that statement[.] . . . You're not obliged to say anything, buddy.

Defendant ultimately decided to represent himself with the aid of standby counsel.

II.

Defendant asserts on appeal that he did not knowingly waive his right to counsel before trial because the trial judge did not properly inform him of the accordant consequences of self-representation.

A "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). In State v. Crisafi, 128 N.J. 499, 509, certif. denied, 130 N.J. 398 (1992), the Court explained that a defendant may "exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel." In State v. DuBois, the court also directed:

[W]hen determining whether a waiver of counsel is knowing and intelligent, trial courts must inform defendant of: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.
[Supra, 189 N.J. at 467 (citing Crisafi, supra, 128 N.J. at 311-12).]

The Court set forth additional requirements to the process, specifically that

(1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination. [Id. at 468 (citing State v. Reddish, 181 N.J. 553, 594-95 (2004)).]

In analyzing a defendant's responses to these concerns, the court should "indulge [in] every reasonable presumption against waiver." State v. King, 210 N.J. 2, 19 (2012) (alteration in original) (quoting State v. Gallagher, 274 N.J.Super. 285, 295 (App. Div. 1994)). "Only in the rare case can the record support a finding that, in the absence of such a searching examination, a defendant did indeed 'fully appreciate[] the risks of proceeding without counsel, and . . . decide[] to proceed pro se with his eyes open.'" Id. at 20 (alteration in original) (quoting Crisafi, supra, 128 N.J. at 513). The "ultimate focus" of this inquiry is on the defendant's "actual understanding of the waiver of counsel." Crisafi, supra, 128 N.J. at 512.

We review the judge's determination that defendant's waiver of his right to self-representation was knowing and intelligent pursuant to an abuse of discretion standard. See DuBois, supra, 189 N.J. at 475. Here, the judge did not follow the proscribed procedures to "ascertain whether [defendant] actually underst[ood] the nature and consequences of his waiver." King, supra, 210 N.J. at 19 (quoting Reddish, supra, 181 N.J. at 594). Although the trial court repeatedly advised defendant that self-representation is "not a good idea" and urged defendant to accept the services of counsel, the court did not inform defendant of everything required under Crisafi and Reddish. The court appears to have informed defendant of the charges against him, but did not discuss, as required, the statutory defenses to those charges or the possible range of punishment upon conviction. DuBois, supra, 189 N.J. at 468. Instead, the court less precisely advised defendant that if he was convicted, he would be sentenced to jail and that it would be a "serious hit" in light of defendant's criminal record.

Additionally, the court did not advise defendant, as required, of the technical problems associated with self-representation and the risks of an unsuccessful defense, nor the impact that the dual role of counsel and defendant may have on defendant's ability to represent himself. Ibid. This omission is perhaps mitigated by the court's discussion with defendant about the hazards of speaking on the record and the possibility that the State would use defendant's in-court statements against him even if defendant was not actually testifying. Nevertheless, this particularized warning was not comprehensive.

Moreover, the court did not tell defendant, as required, that if he proceeded pro se, he would not be able to later assert an ineffective assistance of counsel claim. Id. at 469. The court also failed to advise defendant of the possible range of punishment or the range of sentences, including the potential for an extended term. Id. at 468.

The court did, however, advise defendant of some of the required information. For instance, the court informed defendant that he would have to follow the same rules as anyone else. The court reminded defendant that he lacked a law degree and would not be as prepared as a lawyer would be. The court repeatedly insisted that it would be better for defendant to allow counsel to be in charge of the defense. Finally, the court informed defendant that self-representation would potentially jeopardize his right against self-incrimination and undermine his right to remain silent.

While defendant expressed a desire to represent himself, we conclude that the judge's inquiries, over several proceedings, into his abilities, and its efforts to advise defendant against self-representation fell well short of the searching inquiry required by Crisafi, Reddish and DuBois. Notwithstanding the magnanimous and respectful manner in which the trial judge treated defendant throughout the trial, he nevertheless misapplied his discretion in granting defendant the right to proceed pro se absent a full and thorough inquiry as required by law.

Accordingly, defendant's convictions are reversed and the matter is remanded to the trial court for further proceedings.

III.

We turn now to address one issue that may arise again on remand. Defendant contends that the trial court's refusal to grant his motion for ancillary services to retain an expert medical witness interfered with his right to present a defense and constituted reversible error. We disagree.

Defendant requested that the Office of the Public Defender (OPD) provide him with the funds to obtain an expert witness to support his defense that his physical condition, hernia and chronic joint disease of the knee, prevented him from running away from the scene, and that he therefore was not the man whom Ellmyer said ran away from the car. Defendant contends that following the OPD denial, he filed a motion with the court to obtain ancillary services, but the judge denied the motion without reviewing the decision of the OPD as he was required to do.

The circumstances regarding this issue are as follows. On May 20, 2009, defendant raised the issue of obtaining ancillary services from the OPD. The OPD had denied defendant's request for ancillary services.[2] Defendant and the judge engaged in the following conversation:

THE COURT: . . . . [The OPD] has denied it. You're getting no expert.
[DEFENDANT]: He told me that I had to make application before the [c]ourt in the form of a motion for ancillary services[, ] which I'm doing.
THE COURT: The [c]ourt is not providing any ancillary services to you.
[DEFENDANT]: How will I describe my injuries to a jury in just layman's terms where they understand?
THE COURT: You explain it to them yourself. The [c]ourt is not in the habit or custom of providing ancillary services. That's a decision made by the [OPD] who has decided for whatever reason they don't believe hiring an expert in your case is legally needed.
[DEFENDANT]: He said I'll have to file a motion.
THE COURT: You want to file a motion go right ahead. I am not going to give you an expert at the [c]ourt's direction. I accept [the Public Defender's] analysis. He makes the decision.

On June 18, 2009, defendant again raised the issue of ancillary services at a pretrial proceeding. The judge said that there was nothing in defendant's medical records to indicate that defendant could not run. The judge also said:

THE COURT: Your petition has been denied and I'm not changing their opinion. I have no control over them.
[DEFENDANT]: Your Honor, in the interest of justice that's why I have a motion for your reconsideration.
THE COURT: In the interest of justice I've read your motion and I do agree with the [OPD]. There's nothing in the records and now bolstered by the statements of [defendant's treating] doctors[3] that leads this [c]ourt to believe that an [independent medical examiner] would be beneficial to you.

At trial, defendant called two doctors to testify regarding his medical conditions. Dr. James Gervasoni, a surgical oncologist who had examined defendant in June 2007, testified that he had recommended that defendant undergo surgery for repair of an inguinal hernia. Gervasoni explained that an inguinal hernia is a "defect in the abdominal wall that has either fat or bowel contents coming out [that] needs to be repaired because it can incarcerate and obstruct." He also testified that such a condition could cause a lot of pain but should not affect a person's gait. While he had never known an inguinal hernia to prevent someone from running, Gervasoni did not entirely rule out that possibility.

Dr. Steven Hoey, an internist, testified that he saw defendant one time in March 2003 for "traumatic degenerative joint disease" of the knee. He referred defendant for an orthopedic consultation and ordered an MRI. He did not recommend a total knee replacement because that was beyond his medical expertise. Hoey recommended that defendant use a cane and a knee brace. This witness was not asked if defendant could run.

The OPD is mandated by statute to provide all necessary legal services, including investigation, to indigent persons who have been charged with an indictable offense. N.J.S.A. 2A:158A-5. "The factors of need and real value to a defense may be weighed against the financial constraints of the Public Defender's officer in determining what are the necessary services and facilities of representation." Ibid. The OPD is required to render such necessary services even if the defendant is represented by counsel other than the OPD. In re Cannady, 126 N.J. 486, 492 (1991).

Included in the right to receive these necessary services is the right to the assistance of expert witnesses. State v. DiFrisco, 174 N.J. 195, 244 (2002). Our Supreme Court advised that:

Should the OPD reject defendant's application, the reasons for doing so must be reduced to writing and a copy of that statement sent to defendant. Consistent with N.J.S.A. 2A:158A-15.1 that provides that "[a] determination to grant or deny the services of the Public Defender shall be subject to final review by the Assignment Judge or his designated judge, " the OPD's decision to grant or deny its services also shall be subject to review by the trial court, or if the case has not yet been assigned to a specific trial court, to the assignment judge or his designee. . . . (alteration in original).
[Cannady, supra, 126 N.J. at 497 (alteration in original).]

Here, defendant had been deemed indigent and had been assigned standby counsel from the OPD for the trial. The OPD, following a review of defendant's medical records, reports of his treating physicians, and proffered defense, decided not to furnish defendant the monetary resources to engage an expert witness to assist him in his defense. This determination by OPD not to delegate public resources where the "real value to a defense" [has been] weighed against the financial constraints" of the agency comports with their statutory authority pursuant to N.J.S.A. 2A:158A-5.

Although defendant told the judge that he needed assistance addressing the medical reports, and filed a motion[4] in that regard, the trial judge chose not to disturb OPD's determination. In denying the motion, the judge found that defendant had not proffered sufficient prima facie evidence of his defense - that he could not have run from the vehicle. We find nothing improper in the judge's determination of this aspect of the case.

The denial of defendant's motion did not impede his ability to pursue his defense. On the contrary, during the trial the court granted defendant's request to permit standby counsel to actively participate in the trial by conducting the direct examinations of the two doctors. During their testimony, counsel had ample opportunity to question the physicians regarding defendant's medical conditions, their respective diagnosis and treatment recommendations, as well as their opinions regarding any limitations on defendant's movements.

Upon our review of the record, we conclude that consistent with the discretion granted to the OPD in considering requests in these matters, the trial court's did not err in refusing to override their determination and direct the OPD to provide defendant ancillary services. We affirm the court's findings regarding this claim without prejudice, subject to a renewed request by defendant to OPD on remand.

We need not address defendant's remaining claims, as these claims are either without merit or unlikely to recur on remand. R. 2:11-3(e)(2).

Affirmed in part, reversed in part and remanded for a new trial.


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