STATE OF NEW JERSEY v. CHRISTOPHER R CHERFANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER R. CHERFANE,

Defendant-Appellant.

___________________________________

Argued April 9, 2014 Decided July 24, 2014

 

Before Judges Waugh and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-02-0330.

 

Annmarie Jensen argued the cause for appellant (Agre & Jensen, attorneys; Ms. Jensen and Robert N. Agre, on the briefs).

 

Nancy P. Scharff, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Scharff, of counsel and on the brief).

 

PER CURIAM

Defendant Christopher R. Cherfane appeals his conviction, following a bench trial, for third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and third-degree conspiracy to commit that offense, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-3. We reverse.

I.

We discern the following facts and procedural history from the record on appeal. We set forth the facts based on the testimony developed at trial, primarily from the State's witnesses.

On January 12, 2010, Cherfane drove co-defendant Blenner Gomes to the Cherry Hill Mall in Cherfane's white BMW so that Gomes could break into some cars to steal money for drugs. Gomes attempted to gain entry into several cars, but was unable to do so. After making eye contact with a security officer, Gomes became nervous and returned to Cherfane's car.

Cherfane and Gomes then went to the nearby Rite Aid to "snatch" someone's purse. While Gomes waited in the bushes near the entrance to the Rite Aid, Cherfane circled the building in his car. Cherfane eventually telephoned Gomes and told him to snatch the next woman's purse because it was taking too long. According to Gomes, Cherfane also told him to punch the woman if she resisted.

As Patricia Ciniglio approached the store, Gomes came up behind her and grabbed her purse. Gomes and Ciniglio tugged on the strap of the purse until it broke. Cherfane began to drive away as Gomes ran toward the BMW, so Gomes ran into a residential development with the purse while screaming for Cherfane to pick him up.

In the meantime, Ciniglio entered the Rite Aid and sought help. A Rite Aid employee pursued Gomes in her truck. Eventually, the employee caught up to Gomes on a residential street and shouted at him to drop the purse.

Coincidentally, Police Sergeant Joseph Vitarelli, who was in an unmarked car and street clothes, was driving by the Ride Aid parking lot when he noticed Gomes, almost covered from head-to-toe on a "mild" January day, standing outside the store's entrance. As Vitarelli was going to investigate, he saw Gomes run off with a purse. He followed Gomes in his unmarked car.

When he arrived at the location where the employee was confronting Gomes, Vitarelli pulled his weapon, identified himself as a police officer, and ordered Gomes to "get down." At that point, Cherfane pulled up next to the unmarked car. Gomes dropped the purse and got into Cherfane's car, after which Cherfane sped away. Vitarelli recorded Cherfane's license plate number and issued a "flash report" over the police radio with a description of Cherfane's vehicle and license plate number.

Later that day, Officer James Watts was waiting near Cherfane's home and initiated a vehicle stop when he saw his car. Cherfane was arrested and his BMW was impounded. The police subsequently took fingerprints from Cherfane's car.

In November 2011, after he was arrested in connection with an unrelated crime, Gomes was fingerprinted. The prints matched those taken from Cherfane's BMW at the time of the purse snatching in January 2010. When the police interrogated Gomes, he implicated Cherfane in the purse snatching. Cherfane and Gomes were subsequently indicted for second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1).

The trial was held over five days in September and October 2012. Cherfane sought to represent himself at trial, and also to waive a jury trial. After questioning Cherfane about his reasons for both, as well as his understanding of his right to counsel and the need to refrain from seeking to offer testimony in the guise of acting as his own attorney, the trial judge approved Cherfane's requests. He designated Cherfane's retained counsel as standby counsel.

At trial, Gomes testified that he and Cherfane had stopped communicating after the purse snatching. However, Cherfane subsequently contacted Gomes and asked him to speak with an attorney he was thinking of retaining and to tell him that Cherfane was not involved in the purse snatching. Gomes admitted that he lied when he told the attorney that Cherfane was not involved. However, when Cherfane asked him to sign an affidavit to that effect, Gomes refused to do so.

Although Cherfane did not testify, the defense theory of the case, as advanced by standby counsel during his part of the summation, was that Cherfane did not know that Gomes was going to steal a purse and, when he saw Gomes being held at gunpoint by someone in street clothes, he attempted to rescue him in ignorance of the fact that the man with the gun was a police officer.

After listening to the summations given by the prosecutor, Cherfane, and his standby counsel, the trial judge made findings of fact, during which he generally discounted Gomes's testimony. He explained that he did so because he perceived Gomes as slanting his testimony to shift all of the blame to Cherfane. The judge concluded that the only rational explanation for Cherfane's conduct was participation in an agreement with Gomes to steal a purse.

It seems to be more, the conspiracy in this case is obviously to steal a woman's purse. It wasn't to physically assault anybody. There were no weapons that were used et cetera, et cetera. And I think it is fairer to categorize this crime as a third degree theft [from] a person rather than a second degree robbery. Though I do want to indicate for the record that the State does have an argument to make that by repeatedly pulling on the strap until it broke, that is legally sufficient force against the person to constitute second degree robbery. And the law says the fact finder in this case, my judgment, a fairer characterization of this particular crime is theft from a person. And so the Court finds the defendant guilty of theft from a person, third degree, and conspiracy to commit theft, third degree.

 

On January 17, 2013, the judge merged the counts and sentenced Cherfane to a term of ninety days in the Camden County Correctional Facility, with the stipulation that programs, like house arrest, could be substituted for incarceration, and to a two-year period of probation. This appeal followed.

II.

Cherfane, now represented by counsel, makes the following arguments on appeal:

I. THE TRIAL COURT IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT/APPELLANT TO PROVE HIS INNOCENCE.

 

II. THE TRIAL COURT FAILED TO ADEQUATELY INFORM THE APPELLANT OF THE FIFTH AMENDMENT IMPLICATIONS OF PROCEEDING PRO SE AT TRIAL AND THEREAFTER MADE DIRECT INQUIRES OF HIM THAT VIOLATED THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION THAT HE INVOKED.

 

III. THE MANNER IN WHICH THE TRIAL COURT CONDUCTED THE WITHIN TRIAL IMPROPERLY DEPRIVED APPELLANT OF AN ADEQUATE DEFENSE AND PREVENTED HIM FROM CREATING A COMPLETE APPELLATE RECORD.

 

IV. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

We start our analysis with the issue of whether the judge adequately established that Cherfane made a knowing and intelligent waiver of his right to be represented by counsel, and particularly whether the judge fully explained the Fifth Amendment implications of such a waiver.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution provide that an accused shall be afforded the assistance of counsel in a criminal prosecution. U.S. Const. amend VI; N.J. Const., art. I, 10. The United States Supreme Court has held that an "accused must 'knowingly and intelligently' forgo" his Sixth Amendment rights if he is to represent himself. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581 (1975).

In State v. DuBois, 189 N.J. 459 (2007), our Supreme Court succinctly summarized nine areas, derived from earlier cases, that a trial judge must ascertain a defendant understands before allowing him or her to act pro se.

Taken together, then, the Crisafi/Reddish[1] inquiry now requires the trial court to inform a defendant asserting a right to self-representation of[:]

 

(1) the nature of the charges, statutory defenses, and possible range of punishment;

(2) the technical problems associated with self-representation and the risks if the defense is unsuccessful;

(3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence;

(4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself;

(5) the impact that the dual role of counsel and defendant may have;

(6) the reality that it would be unwise not to accept the assistance of counsel;

(7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words;

(8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and

(9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.

[Id. at 468-69 (alterations to formatting).]

This appeal is focused on the ninth DuBois factor, which concerns the Fifth Amendment2 implications of self-representation. Reddish requires the trial judge to determine whether the defendant "understands that he not only has the right not to testify, but also the right not to incriminate himself in any manner" and "whether [the defendant] understands that he could make comments as counsel from which the jury might infer that he had knowledge of incriminating evidence (and the difficulty in avoiding such comments)." Reddish, supra, 181 N.J. at 594. The Court recognized that "a defendant who waives counsel jeopardizes his constitutional right against self-incrimination, and, thus, his liberty" and emphasized that "[t]he requirement that a defendant's waiver of counsel be 'knowing' would ring hollow if courts did not take extensive prophylactic measures to assess a defendant's understanding of those rights." Id. at 595.

In State v. King, 210 N.J. 2, 20 (2012) (alterations in original) (quoting Crisafi, supra, 128 N.J. at 513), the Court reiterated its observation in Crisafi that "[o]nly in the rare case can the record support a finding that, in the absence of such a searching examination, a defendant did indeed 'fully appreciate[] the risks of proceeding without counsel, and . . . decide[] to proceed pro se with his eyes open.'" In State v. Blazas, 432 N.J. Super. 326, 338 (App. Div. 2013) (quoting Crisafi, supra, 128 N.J. at 512-13), we noted that "failure to provide such advice will generally require reversal of a conviction" and that the "'limited exception'" arising from "'the exceptional case'" in which the record "'indicates that the defendant actually understood the risks of proceeding pro se . . . . applies only in rare cases.'"

Prior to the beginning of the trial, the judge held a hearing to determine whether Cherfane was making a knowing and intelligent waiver of his Sixth Amendment right to counsel. The judge covered most of the issues discussed in DuBois. However, he did not discuss "the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination." DuBois, supra, 189 N.J. at 469. Instead, he cautioned Cherfane that, although he was not required to testify, he could not testify through self-representation, noting that "sometimes self-represented defendants try to get their version in by either very carefully trying to present their questions as testimony or directly basically addressing the jury." The judge did not explain the dangers of inadvertent self-incrimination.

The State concedes that the trial judge "did not specifically refer to the Fifth Amendment" but argues that he "explained in laymen's terms to defendant that a self-represented defendant's questioning of witnesses can be equivalent to providing testimony." Although the trial judge did make that statement, it was largely in the context of warning Cherfane that he could not testify to facts in the guise of asking questions or making arguments. We do not find that sufficient to satisfy his obligation under the cases we have cited, especially because the judge made no effort to determine whether Cherfane understood the issue of inadvertent self-incrimination. DuBois, supra, 189 N.J. at 469; Reddish, supra, 181 N.J. at 594; Blazas, supra, 432 N.J. Super. at 337.

The problem was compounded by the trial judge's repeated interrogation of Cherfane during his pro se summation. The judge asked Cherfane several times during his summation to explain his conduct or to provide an "innocent explanation" for it. His standby counsel eventually intervened and finished the summation. While we do not believe, as Cherfane now argues, that the trial judge intended to shift the burden of proof from the State to Cherfane, we are concerned, as it appears was standby counsel, that the judge's questions had the clear potential to lead to testimonial statements by Cherfane that could be incriminating.

We find nothing in the record from which we can conclude that Cherfane actually understood the self-incrimination danger, which is a prerequisite for the exceptional case in which a verdict can be upheld despite a trial judge's failure to adhere to the requirements of Reddish and its progeny. It is not practicable for us to parse through the entire trial transcript in an effort to determine whether Cherfane made incriminating statements in asking questions, arguing, or responding to the judge's questions and then determine whether the judge relied on them.

Because the judge failed in his well-established obligation to address the self-incrimination issue and satisfy himself that Cherfane understood, and then compounded the problem by interrogating Cherfane during summation, we are constrained to reverse Cherfane's convictions and remand for a new trial on those charges.3

Reversed.

1 State v. Reddish, 181 N.J. 553 (2004); State v. Crisafi, 128 N.J. 499 (1992).

2 The Fifth Amendment to the United States Constitution provides in pertinent part that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.

3 The judge's verdict finding Cherfane guilty of the lesser-included offenses acquitted Cherfane of second-degree robbery and conspiracy to commit that offense.