STATE OF NEW JERSEY v. ABDUL PRICE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1019-07T41019-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDUL PRICE,

Defendant-Appellant.

________________________________

 

Submitted: June 3, 2009 - Decided:

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1487.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan E. Love, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Abdul Price was tried in absentia and convicted of third-degree receiving a stolen vehicle, N.J.S.A. 2C:20-7. He was sentenced as a persistent offender, N.J.S.A. 2C:44-3a, to a custodial term of seven years with a three-year parole disqualifier. Appropriate fees and penalties were also imposed. Defendant asserts the following arguments on appeal:

POINT I:

THE STATE DID NOT PROVIDE SUFFICIENT EVIDENCE TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT (NOT RAISED BELOW).

POINT II:

DEFENDANT INSISTED HE WAS NEVER NOTIFIED OF HIS NEW TRIAL DATE. LACK OF ADEQUATE NOTICE DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AND HIS FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS (NOT RAISED BELOW).

POINT III:

DEFENDANT'S SENTENCE WAS EXCESSIVE AND PARTIALLY BASED ON UNFAIR JUDICIAL COMMENTS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

After being indicted on one count of receiving a stolen motor vehicle, defendant was arraigned on June l2, 2006, given Hudson warnings and trial was scheduled for July 10, 2006. Whether or not defendant appeared on that date is disputed. Nevertheless, trial was adjourned to August 29, 2006, and it is undisputed counsel spoke with defendant by phone late in the afternoon the day before and defendant assured him he would report to court for trial. Defendant failed to appear at trial without excuse, nor has one been raised to this day.

Judge Joseph Isabella concluded that defendant chose not to be present at trial, and at 10:15 a.m. commenced trial and issued a bench warrant for defendant's arrest. The court instructed the jury it was defendant's constitutional right to decide whether or not to be present at his trial, defendant chose not to be present and that fact was not to be considered for any purpose or to detract from defendant's presumption of innocence. The State presented the testimony of Officer Brian Berrigan and George Redding, the owner and driver of the subject Jeep, respectively, who testified they had not given permission to defendant to operate the vehicle. Officer Rod Simpkins, who followed the car in response to a dispatch report of a stolen vehicle, observed defendant parking and exiting the vehicle, and arrested him twenty-five yards from the Jeep. The officer explained that the vehicle had a broken steering column and wires hanging from the ignition, types of damage indicative of a stolen vehicle. The officer also stated there was no key found in the car or on defendant's person.

The defense presented no witnesses. Defendant was convicted of receiving a stolen motor vehicle. Defendant was sentenced on June 4, 2007. This appeal ensued.

Although acknowledging the State proved the Jeep was stolen, defendant first contends the State failed to prove beyond a reasonable doubt he knowingly received the movable property of another, knowing it was stolen. According to defendant, he was merely present in the area at the same time the stolen Jeep was discovered and such presence near the crime scene is insufficient to satisfy the elements of receiving a stolen motor vehicle. Defendant neither moved for a judgment of acquittal, nor made a motion for a new trial. Rule 2:10-1 requires a new trial motion to have been made in the trial court as a prerequisite to an appellate challenge to a jury verdict on weight-of-the-evidence grounds. State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, l5l N.J. 470 (1997). Nevertheless, that mandate is subject to relaxation and we can proceed to the merits if we choose based on considerations of substantial justice. State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). We are satisfied, however, there is no "miscarriage of justice under the law," R. 2:10-1, as the "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (citations omitted).

We are also satisfied defendant knowingly waived his right to be present at the trial by absenting himself after receiving his Hudson warnings and being contacted by his attorney the day before trial. There is no merit to defendant's challenge to the waiver based on his claim that he was never properly informed of his rescheduled court date, having only been notified the afternoon before, which was too short to be considered adequate. The record clearly demonstrates that defendant's "conduct evidenc[ed] a knowing, voluntary, and unjustified absence after (l) the defendant has received actual notice in court or has signed a written acknowledgement of the trial date . . . ." R. 3:16(b)(1). Defendant was provided with actual notice, as he received his Hudson warnings at arraignment and admitted to being present in court on the initially scheduled trial date and not waiting to find out the rescheduled date. See State v. Finklea, 147 N.J. 211, 213 (1996) (holding that once defendant has been given actual notice of a scheduled trial date, absent a showing of justification, nonappearance on the adjourned date is deemed a waiver of the right to be present during trial). Defendant also received actual notice of the new trial date when he spoke with his attorney by phone around 4:30 p.m. the day before trial, during which he assured his attorney he would be present in court the next day. See State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995). This was not a situation where defendant had another commitment on the trial date that could not be changed because of the late notice. Defendant simply failed to contact anyone or appear in court and has never provided an excuse or justification for his absence on the trial date.

In addition, Judge Isabella did not cavalierly begin trial when defendant failed to appear but rather first made an appropriate inquiry and factual findings. See ibid. Defense counsel relayed to the court his conversation with defendant the day before. He further explained he called defendant's phone that morning and identified himself and stated the reason he was calling; however, an unknown person, who could have been defendant, informed him defendant was not there. The court thus knew defendant was not incarcerated and under the circumstances of the case it was clear defendant had no justification for his absence. Accordingly, Judge Isabella concluded defendant had voluntarily waived his constitutional right to be present at trial, gave the proper jury instruction and appropriately tried defendant in absentia.

Lastly, defendant challenges his sentence as excessive. He acknowledges he was extended-term eligible as a persistent offender, N.J.S.A. 2C:44-3a, but argues the court improperly double counted factors used to invoke the extended term statute to impose the term of imprisonment. Defendant contends a five-year term, the low end of the extended term range, would have been sufficient for this non-violent property crime.

Our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). We will not substitute our judgment for his. State v. O'Donnell, ll 7 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). Modification is only necessary if the judge mistakenly exercised his broad discretion and imposed a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 364.

The present offense is defendant's eighth indictable adult conviction. He also had numerous juvenile adjudications. Fifteen of his adjudications and convictions were for receiving stolen property. The trial judge found the three applicable aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6) and (9), substantially outweighed the non-existent mitigating factors to warrant imposition of a seven-year term with a three-year parole disqualifier. The record does not support defendant's challenge of double counting of aggravating factors. Nor does the length of the extended term or imposition of the parole disqualifier period shock our conscience.

Affirmed.

 

State v. Hudson, 119 N.J. 165 (1990).

According to the assistant prosecutor, defendant's brother told her in court that day that defendant was in the hospital, although no proof was provided at any time. Officer Simpkins later told her he had bumped into defendant afterwards and defendant said he was not sick and just wanted to give his attorney more time to prepare. At sentencing, defendant claimed he was sitting in the back row, did not hear his name called on roll call, and was then told someone was not ready and a new date would be set. Despite this, defendant left before a new trial date was provided because of a claimed emergency.

(continued)

(continued)

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A-1019-07T4

 

June 19, 2009