STATE OF NEW JERSEY v. MICHAEL RUGGIERI

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6474-04T46474-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RUGGIERI,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 31, 2006 - Decided December 1, 2006

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-01-0030-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Michael Ruggieri, appeals his June 24, 2005 judgment of conviction on count one of Somerset County Indictment No. 04-01-0030-I for second-degree robbery, contrary to N.J.S.A. 2C:15-1, and on count two, for disorderly persons resisting arrest, contrary to N.J.S.A. 2C:29-2a(1). Defendant was sentenced on count one to eight years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, defendant was sentenced to a concurrent six month term of imprisonment. We affirm defendant's conviction but remand for resentencing.

On June 25, 2004, the trial court conducted a pretrial hearing in the presence of defendant and defendant's counsel. The trial court established two trial dates. The first date was for the week of September 13, 2004. The court indicated defendant's case on that date would be a back-up case to a murder trial already scheduled for that date. The alternate date was for the week of October 18, 2004.

Defendant signed a written acknowledgment dated June 25, 2005, which reads: "I hereby acknowledge that I have been advised that I am to appear for trial on the weeks of September 13 and October 18, 2004 at 9:00 a.m. . . . and if I fail 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." The acknowledgment indicates that a copy was given to defendant, the assistant prosecutor, and defense counsel.

Additionally, the portion of the pretrial memorandum signed by defendant's counsel states: "Defendant and all counsel are hereby directed to return to court on the following date at 9:00 a.m. ready for trial. There will be no further notices required . . . . Trial Date: weeks of Sept. 13 and Oct. 18, 2004." The portion of the memorandum signed by both defendant and defendant's counsel in applicable part reads:

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.

On August 18, 2004, the trial court adjourned the September 13, 2004 trial date at the request of the prosecutor, because the prosecutor had witness production problems. Defendant was not present when the adjournment was requested and was not personally notified that the September 13, 2004 trial date had been adjourned.

On the October 19, 2004 trial date, defendant did not appear. Defendant's counsel advised the court:

[I] don't know where my client is. As far as I know, he is in an inpatient drug treatment program . . . apparently June the 25th is the date of the pretrial memo, when he was advised of the dates which were alternate dates. First date was September the 13th, . . . which was in the middle of the . . . murder trial. Mr. Ruggieri appeared at that time and asked me when the next trial date would be. I . . . indicated to him that he should contact me or I would contact him . . . there was some indication that one would contact the other in some manner. Last week . . . the trial date appeared to be more certain . . . I reached out to Mr. Ruggieri again and have not heard from him since the September date. I spoke to his father. The only address I have is at his father's residence. As far as his father knows, who hasn't seen him in a while, he is in a drug treatment program. We checked the Statewide lookup for the County Corrections Information System. He was briefly in. I think. Union County jail in September, but at the present time I don't know where he is. I cannot say that his absence from court today is voluntary.

Thereafter, the trial judge conducted a lengthy colloquy on the record, setting forth all available information about defendant's whereabouts. This information included, in addition to that furnished by defense counsel, information known by the assistant prosecutor (prosecutor) and the case management team leader. They placed on the record their efforts to locate defendant. The prosecutor indicated he had contacted the Middlesex County Prosecutor's Office where defendant had other criminal charges pending. The prosecutor stated: "I received from . . . the AP in Middlesex . . . that . . . there was a message relayed to the court in Middlesex that the defendant was sent to an inpatient rehab by the domestic violence team leader." The case management team leader informed the judge:

I personally sent a letter to [defendant] to the last known address . . . advising him of the court date. That was sent on Wednesday of last week. Also I contacted the public defender . . . . He . . . indicated that last he knew he was in one of two [drug treatment] programs, either Princeton House or Turning Point. I contacted both programs and both advised me that he is not a[n] . . . inpatient resident at either of these programs. He was also before the Middlesex County court on 10-15 according to the promis gavel records, and it indicated a warrant was executed, they had a warrant out for him and that bail was reinstated.

The court then ruled:

[I]t looks like everybody has made a serious effort to locate Mr. Ruggieri. The only one who is not making a serious effort is Mr. Ruggieri, [who] apparently chose not to be here. There is no valid information to indicate that he is somehow prevented from being here. He's obviously failed to communicate with counsel or the Court about where he is after receiving notice of the date.

Team leader Mr. Butler has checked with his attorney over in Middlesex County and checked whatever leads were available there, and in fact called two programs that were listed. Both are indicating that he is not there, not an inpatient. Could be he is an outpatient, but he is not an inpatient, so there is nothing that prevents him from appearing.

So the case is going to proceed. Given the case law, I mean. I think everybody has made a fair effort to try to locate Mr. Ruggieri. It is clear to me that Mr. Ruggieri knew about the date. He had adequate notice here in court. We have all made an effort to try to locate Mr. Ruggieri to try to figure out where he is, all to naught, and it's clear that if, in fact, he's received adequate notice and there is no legitimate reasons for his nonappearance, then the case proceeds without him, which is what he was told. So we are going to proceed.

Defendant was tried in absentia in a two-day trial before a jury. The jury found defendant guilty of robbery (count one) and the disorderly persons offense of resisting arrest (count two). On June 25, 2005, defendant appeared before the court for sentencing. At the sentencing hearing, defendant's counsel stated:

This is a matter in which the defendant did not appear for . . . trial. I had an opportunity to speak with him this morning. I do recall speaking with him outside this courthouse as I was beginning the trial in State versus Pittman back in September, and that was the original trial date for this matter, and telling him that it was not going to be proceeding to trial on that date. He indicates to me now that he recalls that I told him it would not be for some months that this case would be tried, perhaps December or January. I do not recall that conversation, but I have no independent recollection of the rest of it.

I do have notes from October the 19th which is when we started and reviewed the pretrial memorandum indicating that he had two alternate weeks, the weeks of September 13 and October 18, 2004, and I did put on the record at that time I made attempts to contact the defendant's father. His attorney in Middlesex county believes that he may have been in treatment; that there had been a warrant in Middlesex but . . . his bail had been reinstated. The court . . . determined that this defendant knew of the court date and the trial began.

Defendant presents the following arguments for our consideration:

POINT I.

THE TRIAL COURT ERRED BY TRYING MR. RUGGIERI IN ABSENTIA, THEREBY DEPRIVING HIM OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL AND VIOLATING RULE 3:16.

POINT II.

MR. RUGGIERI WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III.

THE SENTENCE IMPOSED UPON MR. RUGGIERI IS ILLEGAL.

POINT IV.

THE SENTENCE IMPOSED UPON MR. RUGGIERI IS EXCESSIVE.

I.

Defendant contends the trial court erred by trying him in absentia. Defendant asserts that by doing so the court violated his due process right to a fair trial and violated Rule 3:16. Defendant argues that he did not voluntarily waive his right to attend his trial because he had inadequate notice of the trial date and his absence was justified. Defendant's argument lacks merit.

Rule 3:16 in applicable part states:

(a) Pretrial. The defendant must be present for every scheduled event unless excused by the court for good cause shown.

(b) At trial. . . The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from . . . (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date.

In State v. Hudson, 119 N.J. 165, 183 (1990), the Supreme Court held that "a defendant's inexcusable absence from trial, under circumstances demonstrating knowledge of the time and place of trial, the right to be present, and that the trial may proceed if defendant is absent, constitutes a sufficient basis for the trial court's decision to proceed. Ibid.

In State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996), we required as a prerequisite to a court determining that a defendant had waived his right to be present at his trial that there be a showing that the date was actually communicated to the defendant, who unjustifiably failed to appear. Ibid. We further held that the court must make a searching inquiry as to "where the defendant is and why he is absent and make appropriate findings." Ibid.

In State v. Finklea, 147 N.J. 211, the Supreme Court determined that where a defendant is given actual notice of the scheduled trial date at a pretrial appearance and is then told he will be tried in absentia if he fails to appear, he may be so tried if, without explanation, he fails to appear on the scheduled trial date.

In this case, there can be no doubt that defendant had full knowledge of the date, time and place of his trial. Defendant was present at his pretrial hearing on June 25, 2004 when the court established the two alternative dates for trial. Defendant at the hearing signed the pretrial memorandum and a separate acknowledgment attesting to his having been advised of the two alternative trial dates. A copy of the acknowledgment was provided to him. Defendant's signature on the pretrial memorandum and on the acknowledgment evidence his understanding that if he failed to appear in court on either of those dates that the trial would proceed without him and the jury's verdict would be binding on him.

In State v. Givens, 353 N.J. Super. 280, 289 (App. Div. 2002), we determined that incarceration in another jurisdiction did not preclude a judicial finding of a voluntary waiver of appearance by a defendant at trial. In reaching this conclusion, we listed several factors that should be considered to determine if an incarcerated defendant's absence from trial was voluntary. Id. Those factors include a defendant's knowledge of the trial date, the defendant's knowledge of the duty of notification, and what action the defendant took to notify the trial court of his imprisonment. Id. If being incarcerated is not always a justifiable excuse for failing to attend trial, certainly voluntarily entering a drug rehabilitation program is not a justified excuse.

We are satisfied that defendant's knowledge of his trial date, coupled with his failure to appear for trial, supports the court's finding that defendant waived his right to be present at his trial. We are equally satisfied that defendant's absence from trial was voluntary and unjustified. Although never substantiated, the trial court was informed by counsel and the case management team leader that the defendant might have been in an inpatient drug rehabilitation program. If true, defendant never notified his trial attorney or the court of this fact. If defendant had entered into a drug treatment program, his entry was voluntary. Furthermore, the judge, defendant's trial counsel, and the prosecutor all tried to locate defendant. They were unsuccessful. Messages left for defendant by his attorney at defendant's father's residence to call the court or his attorney were either never received by defendant or ignored by him. Information received included that defendant appeared in court in Middlesex County the Friday before trial, namely October 15, 2004, and his bail there was reinstated. Thus, he was apparently on the street then. As a result, the trial court properly exercised its discretion when the court ordered defendant's trial to proceed in defendant's absence.

II.

Defendant contends that he was deprived of his Sixth Amendment right to the effective assistance of counsel because his attorney failed to file a motion for a new trial pursuant to Rule 3:20-2. Defendant asserts that his trial counsel was on notice that his absence from trial was involuntary and unknowing as a result of his reminding counsel at the sentencing hearing that counsel had told him that his trial would take place in December or January. Defendant claims that defense counsel had an obligation to file a motion for a new trial because his absence from trial was involuntary and unknowing.

Rule 3:20-2 provides: "A motion for a new trial based on a claim that the defendant did not waive his or her appearance shall be made prior to sentencing." See State v. Sellers, 331 N.J. Super. 110, 114-15 ( App. Div. 2000). Therefore, defense counsel's failure to move for a new trial prior to sentencing, if not satisfactorily explained, could constitute ineffective assistance in light of the mandatory language of Rule 3:20-2.

We reject, however, on direct appeal defendant's claim of ineffective assistance of counsel. Ineffective assistance claims, generally, are more appropriately raised in a collateral proceeding "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Our affirmance of defendant's conviction, therefore, is without prejudice to any post-conviction relief petition defendant may pursue on the basis of ineffective assistance of counsel. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

III.

Defendant was sentenced for second-degree robbery to eight years imprisonment, with an 85% NERA parole disqualifier. Defendant contends that his sentence is illegal and must be remanded in light of State v. Natale, 184 N.J. 458 (2005) (Natale II). The state agrees that a remand is necessary. In Natale, the Supreme Court held that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates the right to a jury trial. Id. at 473. Defendant was sentenced to one year greater than the pre Natale presumptive statutory term of seven years, N.J.S.A. 2C:44-1f(1)(a), based on the trial court's judicial factfinding of aggravating factors three and nine.

We agree that because in this case defendant's sentence was greater than the former presumptive term of seven years, a remand is necessary in the form of a new sentencing hearing. Accordingly, we affirm defendant's conviction but remand to the trial court for resentencing in accordance with Natale. See also State v. Nesbitt, 185 N.J. 504, 519 (2006).

Affirmed as to conviction; remanded for resentencing.

 

Defendant was charged with the second-degree robbery of the Kohl's Department Store in Watchung and with fourth-degree resisting arrest.

(continued)

(continued)

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A-6474-04T4

December 1, 2006

 


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