NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 ...