STATE OF NEW JERSEY v. BRIAN VAN ORDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5362-03T45362-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN VAN ORDEN,

Defendant-Appellant.

________________________________________________________

 

Submitted October 17, 2006 - Decided November 1, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey,

Law Division, Sussex County, I-03-06-0153.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Amira R. Scurato, Assistant

Deputy Public Defender, of counsel and on

the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Maura K. Tully, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury found defendant, Brian Van Orden, guilty on a one-count indictment, charging fourth degree criminal contempt for purposely or knowingly disobeying a judicial order, N.J.S.A. 2C:29-9a. The judge imposed a prison term of one year, to run consecutive to a recently imposed seven-year term, with parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, pursuant to defendant's plea of guilty to second degree robbery. Defendant appeals, and we affirm.

A brief summary of what led to defendant's conviction will suffice. After defendant pled guilty to the robbery, he was brought before a Sussex County Grand Jury to testify against his co-defendant in the robbery. Although reluctant, he did describe his part in the robbery, noting that afterwards he used a nearby pay phone to call his girlfriend. When asked for the name of his girlfriend, he asserted a Fifth Amendment privilege. Several days later, defendant was brought to court, where his own attorney stated to the judge that he had told defendant that the privilege asserted provided no basis for refusing to answer the prosecutor's question about the name of his girlfriend. The judge ordered defendant to answer the question before the Grand Jury, making clear to him that failing to do so could result in imprisonment for up to eighteen months. Defendant was immediately brought before the Grand Jury, where he conceded that he had been ordered to answer by the judge, but still refused to do so. The indictment and trial followed, and the State's proofs consisted of the reading of portions of the transcripts from defendant's two Grand Jury appearances and his in-between appearance before the judge. Defendant testified, admitting the failure to answer, but claiming that he believed he had a right to rely on the Fifth Amendment to the United States Constitution.

Defendant offers the following arguments:

POINT I

THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE STATE USED THE HEARSAY TESTIMONY OF DEFENDANT'S ORIGINAL COUNSEL TO CONVICT HIM. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

(A) Defendant's Attorney-Client Privilege was Breached by the Improper Use of the Information.

(B) Defendant's Right of Confrontation was Violated by the Use of Hearsay Testimony.

POINT II

THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN JUDGE CONFORTI ENTERED AN INVALID ORDER. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT III

THE DEFENDANT DID NOT UNDERSTAND THE COURT'S ORDER AND THEREFORE DID NOT PURPOSELY AND KNOWINGLY VIOLATE IT.

POINT IV

DEFENDANT'S SENTENCE IS EXCESSIVE AND SHOULD BE MODIFIED TO REFLECT A CONCURRENT SENTENCE.

Apart from the need for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137, 153-54 (2006), after careful consideration of the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant did not object to any of the evidence submitted against him; consequently, to prevail on his first point, defendant must show plain error. The above statement of defendant's prior counsel was not hearsay because it was not offered to prove the truth of the matter asserted, N.J.R.E. 801(c), and therefore also did not violate the principles explained in Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1369, 158 L. Ed. 2d 197 (2004). Nor did the introduction of this material impinge on the attorney-client privilege. See

State v. Savage, 120 N.J. 594, 630-31 (1990); Weingarten v. Weingarten, 234 N.J. Super. 318, 328-29 (App. Div. 1989).

Defendant's second point is equally without merit. He did not appeal the order directing him to testify, and thus he was obliged to comply. In re Mandell, 250 N.J. Super. 125, 129-30 (App. Div. 1991); Maness v. Meyers, 419 U.S. 449, 458, 95 S. Ct. 584, 591, 42 L. Ed. 2d 574, 583 (1975).

Defendant's third point raises a question of fact decided by the jury. In short, the jury rejected his claim that he did not understand the court's order to testify.

Convictions affirmed; remanded for resentencing.

 

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A-5362-03T4

November 1, 2006