STATE OF NEW JERSEY v. CHRISTIAN RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1878-05T21878-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTIAN RODRIGUEZ,

Defendant-Appellant.

___________________________________________________

 

Argued November 9, 2006 - Decided November 29, 2006

Before Judges Stern and Collester.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Indictment No. 03-11-0750.

John R. Klotz argued the cause for appellant.

Nicole Colucci, Assistant Prosecutor, argued

the cause for respondent (Wayne J. Forrest,

Somerset County Prosecutor, attorney; James L.

McConnell, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant was tried in absentia and convicted of eluding. N.J.S.A. 2C:29-2(b). He was sentenced to probation for three years with 364 days imprisonment as a condition thereof.

On this appeal, defendant argues that his "constitutional right to a trial by jury was violated when he was tried in absentia in violation of the Federal and New Jersey State Constitutions [U.S. Const. amend. VI and N.J. Const. art. 1, para. 10] [and] the defendant's conviction must be reversed."

This contention is raised as plain error because the issue was not raised on a motion for new trial pursuant to R. 3:20-2. That rule permits defendant to give an explanation as to why he did not appear for trial and seek a new trial based thereon. The motion can be made at any time prior to sentencing. See State v. Whaley, 168 N.J. 94, 105 (2001).

Under our Rules, a warrant may be issued for a defendant if he does not appear for a pre-arraignment conference, R. 3:9-1(a); one of the purposes of the conference is to give defendant a date for the next appearance. Once an arraignment-status conference is conducted and all pre-trial issues are resolved, a pre-trial conference is conducted at which the final plea offer is accepted; after this, the plea cutoff rule applies. R. 3:9-3(g). At the pre-trial conference "the court shall [] inform the defendant of the right to be present at trial, the trial date set, and the consequences of the failure to appear for trial, including the possibility that the trial will take place in defendant's absence." R. 3:9-1(e).

Such advice was appropriately given in this case because on February 25, 2005, defendant appeared for a pre-trial conference at which he was advised that the trial would commence on April 18 or 25, 2005, and would proceed without him if he was absent. He stated that he so understood. Defendant also signed a pretrial memorandum which included the following acknowledgement:

1. I have been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for trial, the Court has the right to conduct the trial in my absence. If my case is not reached for trial on that date the judge will schedule a new date for trial. If I am not present on the original trial date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.

2. I further understand that if I do not appear for trial on the date fixed above or any adjourned trial date thereafter, I will lose any bail that has been posted and a bench warrant will be issued for my arrest.

On that same day, defendant signed an acknowledgement that his trial was scheduled for April 18 or 25, 2005, and that if he failed "to appear on that date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict."

There is no transcript of April 18, but defendant does not contend he appeared that day. As defendant also failed to appear on April 19, 2005, trial proceedings properly commenced in his absence on that date. See State v. Finklea, 147 N.J. 211 (1996) (trial in absentia appropriate when defendant did not appear on adjourned date after receiving notice of original trial date). Compare State v. Whaley, supra, 168 N.J. at 103-07 (conviction reversed where defendant did not receive actual notice of trial date).

In his brief and at argument before us, defendant relied on State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996), in which we held that:

in order to sustain a waiver of the right to be present, it must be shown the trial date was actually communicated to the defendant and the accused unjustifiably failed to appear. Moreover, the right cannot cursorily, and without inquiry, be considered waived by the trial judge simply because the accused does not appear on the date set for trial. The trial judge should attempt to learn where the defendant is and why he is absent and make appropriate factual findings.

[Citations omitted.]

In this case, inquiry was made on April 19, 2005 as to defendant's presence. Sheriff's officers were sent to his home, jury selection was adjourned until the afternoon of April 19, and the trial was delayed until late the next morning in an effort to locate defendant. On April 19, it was also acknowledged that defendant had received actual notice of the trial date, and that defense counsel "made a number of efforts to contact" defendant. Further, the attorneys were well aware of ongoing federal proceedings and the impact thereof on the disposition of this case.

On the morning of April 20, 2005, further efforts were made to call defendant through defense counsel's "contact number for Mr. Rodriguez[,]" and commencement of the trial was delayed in an effort to find defendant. Moreover, efforts were made to locate defendant through federal authorities.

Defendant appeared at sentencing and made no effort to excuse his non-appearance at trial. It was also clear that he was "pending sentencing" on the federal charges, but was not then in custody. There was no suggestion he was in federal custody at the time of his trial in this matter thereby affecting his ability to appear.

Accordingly, the judgment of conviction is affirmed.

 

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A-1878-05T2

November 29, 2006