STATE OF NEW JERSEY v. VINCENT HEREDIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0305-04T40305-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT HEREDIA,

Defendant-Appellant.

___________________________

 

Submitted May 31, 2006 - Decided July 13, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, 03-07-0633-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Donald F. Cox, Jr., Designated

Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (G. Harrison Walters,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury in absentia, defendant Vincent Heredia was convicted of second-degree robbery and received a sentence of eight years subject to the provisions of No Early Release Act (NERA) requiring that he serve eighty-five percent of the term. On appeal he raises the following issues:

POINT I - THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT DID NOT INSTRUCT THE JURY TO CONSIDER MR. HEREDIA'S RENUNCIATION OF CRIMINAL PURPOSE. (Not Raised Below.)

POINT II - THE TRIAL COURT ABUSED ITS DISCRETION BY TRYING THE DEFENDANT IN ABSENTIA ON A TRIAL RECORD THAT DOES NOT REFLECT DEFENDANT'S ACTUAL NOTICE OF THE TRIAL DATE AND/OR CONDUCT ON HIS PART EVIDENCING HIS KNOWING, VOLUNTARY AND UNJUSTIFIED ABSENCE. (Not Raised Below.)

POINT III - THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE JURY HEARD WITHOUT ANY CURATIVE INSTRUCTION PREJUDICIAL TESTIMONY ABOUT THE DEFENDANT BEING BROUGHT TO THE POLICE STATION ON ANOTHER MATTER. (Not Raised Below.)

POINT IV - THE FACTORS UTILIZED AT SENTENCE WERE INCORRECTLY DETERMINED AND/OR THE SENTENCE IMPOSED WAS CLEARLY ERRONEOUS.

1. CORRECTNESS OF FACTUAL FINDINGS.

A. AGGRAVATING FACTORS.

B. MITIGATING FACTORS.

2. ERRONEOUS WEIGHING OF RELEVANT FACTORS.

POINT V - THE SENTENCING PROCEDURE UTILIZED BELOW IS NOT IN ACCORDANCE WITH THE MANDATE OF STATE V. NATALE.

We reverse and remand for a new trial since the record is barren of any showing or findings by the trial judge that defendant received actual notice of the trial date or that his absence was knowing, voluntary and unjustified. State v. Whaley, 168 N.J. 94, 104 (2001); State v. Smith, 346 N.J. Super. 233, 235-36 (App. Div. 2002).

At defendant's pre-trial conference on December 1, 2003, he was given a trial date of February 2, 2004, which subsequently was rescheduled for March 16, 2004. Defendant appeared on that date and was advised that the trial was rescheduled for March 30, 2004. A letter from the criminal division manager dated March 17, 2004, addressed to defendant and to his counsel corrected the date to March 29, 2004. Thereafter, on March 29, 2004, the judge adjourned defendant's trial to April 26, 2004, before a different judge. There is no indication that defendant was present on March 29 or that he received notice of the rescheduled date of April 26. The trial actually commenced on April 27, with the trial judge ordering that it proceed in defendant's absence.

 
Because of the insufficiency of the record before us and the absence of factual findings regarding notice to the defendant of the adjourned trial date, we reverse and remand for a new trial. State v. Davis, 281 N.J. Super. 410, 414-15 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996).

Reversed.

(continued)

(continued)

3

A-0305-04T4

July 13, 2006