STATE OF NEW JERSEY v. KYLE RUFUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4905-08T44905-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE RUFUS,

Defendant-Appellant.

 

Submitted May 10, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0990.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kyle Rufus appeals his conviction by a jury for certain drug distribution offenses. For the reasons that follow, we affirm.

The following facts were adduced during the trial. On October 23, 2006, Officer Noberto Sanchez of the Newark Police Department was conducting street surveillance, with the aid of binoculars, from an unmarked police car when he observed defendant reach down and remove an object from his sock. Defendant then exchanged the object for currency with codefendant Ben Allen. As Allen walked away, the take-down unit was alerted and he was arrested. A glass vial of cocaine with a red top was found on Allen's person.

Defendant was simultaneously arrested and police seized thirteen additional red-topped vials of cocaine from inside defendant's sock and $53 in cash from defendant's pocket. The $53 consisted of a twenty-dollar bill, two ten-dollar bills, a five-dollar bill, and eight one-dollar bills. Although Sanchez had not seen the dollar amounts of the paper currency Allen exchanged for the object, he saw that the items were indeed "paper currency."

Detective Michael Alexandre, a second surveillance officer, also testified. Like Sanchez, Alexandre said there were several operating street lights illuminating the area where the transaction occurred, including a light stanchion located fifteen to twenty feet in front of the undercover vehicle.

When Detective Macchia of the Newark Police Department testified, he described the field testing of the cocaine confiscated from defendant, Allen, and a second drug dealer, Quincy Lewis. Additionally, the State introduced into evidence laboratory reports substantiating the subsequent testing of the contents of the remaining vials found in defendant's sock, which also proved to be cocaine.

Defendant was found guilty of the following: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count seven); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) (count eight); and third-degree cocaine distribution, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (count ten). The school zone charges contained in the ninth count and eleventh count were dismissed.

The judge merged the drug possession offense, count seven, with count eight, drug possession with intent to distribute, for purposes of sentencing. On count eight, as well as count ten, the charge of drug distribution, defendant was sentenced to extended concurrent terms of nine years with four and one-half years of parole ineligibility. Defendant was sentenced to extended terms because he was a prior drug distributor, pursuant to N.J.S.A. 2C:43-6(f). Fees and penalties on the various offenses were also imposed.

Defendant's trial was conducted in absentia. We have only been supplied with copies of the transcripts of the trial and the sentence hearing. References to defendant's absence were scant. The court gave the appropriate instruction relevant to defendant's absence. See Model Jury Charge (Criminal), "Defendant's Absence From Trial" (2004). It bears noting that defendant's trial ended on April 17, 2008, and he was not sentenced until November 12, 2008, after he had been arrested on the warrant issued for his failure to appear at trial.

Defendant first contends that it was error to conduct the trial in his absence. On appeal, it is the responsibility of the moving party to provide us with sufficient information "to make unnecessary an independent examination of the record by the court . . . even though the court inevitably undertakes to review the record for itself." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (citing R. 2:6-9). It is the appellant's burden to provide us with the facts and the record references in support thereof, as well as the legal argument which flows from the facts, in order for us to be able to independently assess the merits of the arguments being made. Ibid. We do not even know if any transcripts of proceedings prior to the trial and sentence were reviewed before defendant formulated his legal argument. In this case, we have not been provided with the record necessary to engage in any review.

Typically, a defendant is advised of his trial date and the fact that trial will proceed even in his absence pursuant to Rule 3:16(b) and State v. Hudson, 119 N.J. 165 (1990). The key question when a trial is conducted despite a defendant's absence, is whether a defendant has "received adequate notice of the date, time and place of trial, and the right to be present," as well as the "consequences of the failure to appear." Hudson, supra, 119 N.J. at 180, 182. This ensures that a defendant's waiver of his right to a trial was made knowingly, voluntarily, and intelligently. Id. at 183-84.

Defendant has not borne his burden of proof to show that he was not properly noticed of his trial date. Providing us only with the transcripts of the trial and the sentence do not adequately address the factual question of whether, prior to the commencement of the trial, he was provided with notice. Without transcripts of prior proceedings to prove the negative, we cannot find there is any merit to this argument as there is no record support for the claim being made. Defendant cannot merely assert there is no proof of notice without providing us with the record to support the claim.

Incredibly, in his reply brief, defendant contends that it is the State which bears the burden of establishing that "defendant was on notice of his trial date." To the contrary, the appellant bears the burden of providing us with the facts, and the appropriate record support, from which a determination can be made as to whether the defendant was properly noticed and whether he made a knowing, intelligent, and voluntary waiver of that notice. As we have said, it is standard practice the norm for trial courts to advise defendants of their trial dates and the consequences of a failure to appear, at a minimum, during the pretrial conference. In the usual case, a defendant signs at least one document acknowledging receipt of the trial date and notice of the consequences of his failure to appear on the pretrial memo pursuant to Rule 3:9-1(e). But it is impossible to reach any actual conclusion on the subject without record support.

In his reply brief, defendant states that "there is no record evidence of actual notification of the trial date or proof defendant was not available for trial for legitimate reasons." Defendant's claim is not tenable in any event because, among other reasons, during sentencing his trial counsel explained his failure to appear as motivated by the fear of incarceration because of "threats that have been made against him. . . ." Counsel did not argue that defendant's absence at trial was due to the fact he was unaware of the trial date. It is unlikely he would have omitted mention of this crucial point if there was a basis for the argument. That defendant most likely failed to appear knowing the date he was supposed to return is bolstered by the fact defendant was not apprehended for several months subsequent to trial. But again, this discussion is based on nothing more than sheer speculation as we have not been supplied a record from which to make an assessment. We will therefore not consider the argument further. R. 2:11-3(e)(2).

Defendant also contends that his sentence was manifestly excessive and was an abuse of discretion. The basis for this argument is that the court should have accorded aggravating factor three, N.J.S.A. 2C:44-1a(3), less weight because, although defendant has an extensive prior criminal history including juvenile offenses, he was "plagued by addiction." We do not agree. Defendant's claimed drug addiction does not lessen the weight of this aggravating factor, the risk that he will reoffend. Similarly, we do not agree with defendant's argument that his drug addiction should have mitigated the weight accorded to aggravating factor six, N.J.S.A. 2C:44-1a(6), his "prior criminal record" as it is contrary to established law. See State v. Ghertler, 114 N.J. 383, 390 (1989). Defendant also objects that mitigating factor eleven, N.J.S.A. 2C:44-1b(11), was not found despite the fact that he advised the court of his responsibilities to his wife and children. The court declined to find this mitigating factor, as the representation alone was not a sufficient basis to justify the factor.

At the time of sentence, defendant was thirty-one years old. He had been arrested many times as an adult and convicted of seven other indictable charges, including third-degree possession with intent to distribute within 1000 feet of school property in 2001. This mandated his sentence as an extended-term offender.

A sentence should only be disturbed when the trial court fails to follow the sentencing guidelines, when the aggravating and mitigating factors are not supported by the evidence, or when application of the guidelines renders a sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Unless the facts and law show "such a clear error of judgment that it shocks the judicial conscience," a sentence will not be disturbed on appeal. Id. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). No deviation from the sentencing scheme has been established and the sentence does not shock the judicial conscience.

 
Affirmed.

The trial transcript does not contain Detective Macchia's first name.

(continued)

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A-4905-08T4

June 25, 2010