STATE OF NEW JERSEY v. ZACHERY D. SANDERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2096-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZACHERY D. SANDERS a/k/a

ZACHARY SAUNDERS,

Defendant-Appellant.

_______________________________________

July 22, 2016

Submitted February 8, 2016 Decided

Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 91-05-1182.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On June 30, 1992, a jury convicted defendant Zachery D. Sanders of two counts of first-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(1); six counts of second-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(2); one count of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2; four counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3); and eleven counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). During the course of the trial, defendant disappeared and remained a fugitive for over twenty-one years. His sentencing hearing was suspended pending his apprehension.

On June 4, 2014, defendant was found and arrested in Nevada and extradited back to New Jersey. Before his sentencing hearing, defendant filed a motion pursuant to Rule 3:20-2 for a new trial on the ground he had been tried and convicted in absentia. The trial court denied his motion and, on October 24, 2014, sentenced him to an aggregate term of twelve years of imprisonment with a five-year period of parole ineligibility.

Defendant appeals the denial of his motion for a new trial. In addition, as the court reporter for the trial has certified the verbatim record of the trial has been lost, defendant requests that we remand this matter so that the record of the trial can be reconstructed. We affirm.

I

The pertinent facts are as follows. In 1991, defendant was charged with the drug-related offenses for which he was ultimately convicted. The criminal docketing system reveals there were a number of pretrial proceedings before the trial was conducted on June 24, June 25, June 29, and June 30, 1992.

Defendant produced a certification executed by the court reporter for the trial and one pretrial motion claiming the verbatim record for these two proceedings were lost. The certification does not indicate if the verbatim record for any other pretrial proceeding was also lost.

The court clerk's log for the trial reveals that the jury was sworn on June 24, 1992; witnesses for the State testified on June 24, June 25, June 29, and June 30, 1992 (defendant did not call any witnesses); and a motion by the State for a bench warrant for defendant's arrest was granted on June 29, 1992. After the verdict was returned, the log states "[sentence] pending apprehension of [defendant]."

An investigator for the Atlantic County Prosecutor's Office signed a report on July 20, 1992, in which he claimed to have been present in court during the trial on June 24 and June 25, 1992 and, at the end of the day on June 25, 1992, the court announced that the trial would resume at 9:30 a.m. on June 29, 1992. The investigator further noted that when the trial resumed on June 29, 1992, defendant did not appear and at 10:30 a.m., the court issued a warrant for his arrest.

In August 1992, defendant was indicted for third-degree bail jumping, N.J.S.A. 2C:29-7, for failing to appear for trial without lawful excuse. When defendant failed to appear for the arraignment on this charge, a second bench warrant for his arrest was issued.

On January 6, 1993 the investigator executed an affidavit in support of an application filed in the United States District Court for the District of New Jersey for an ex parte order authorizing the State of New Jersey to obtain defendant's credit history report. The investigator asserted that, during the trial, defendant was present on June 24 and June 25, 1992, but "absented himself from the proceedings" on June 29 and June 30, 1992. The investigator claimed that, despite his best efforts, he had been unable to locate defendant. He sought defendant's credit history report, as such reports can reveal a person's location. The investigator, who was one of the State's witnesses during the trial, is now deceased.

During oral argument on defendant's motion for a new trial, the assistant prosecutor noted the Prosecutor's Office's file from 1992 has been destroyed. Defense counsel, who is the same attorney who represented defendant during the trial, cannot locate his file or recall the facts of the case.

Defendant did not proffer any evidence, including his own certification, to refute the evidence set forth in the investigator's 1992 report and 1993 affidavit stating defendant failed to appear in court after the trial started.

The trial court denied defendant's motion, finding as follows

We start with the proposition that the failure of proof, if you want to call it that, that he was advised [he had a right to be present at the trial and, if he chose to not be present, the trial would proceed in his absence] is totally as a result of his being a fugitive. I mean 22 years he's a fugitive and now lays claim to the State's inability to prove certain facts that, where the files do not exist? That's, that's, if we're going to talk about laches or sitting on your hands and so and so forth if this was a court of equity he'd be out of here in a nanosecond.

But I think there is proof. I think there is circumstantial proof that he knew about the trial going on in the form of the [Clerk's Log] indicating the trial was proceeding, there's no indication of a bench warrant, and then on [June 29, 1992] after the trial is underway the bench warrant appears. I think it's clear that he knew he was on trial and willfully chose not to appear. So I will deny the motion for a new trial.

As indicated above, defendant was sentenced following the denial of his motion for a new trial. At the time of sentencing, the charge against him for bail jumping was still pending.

II

On appeal, defendant raises the following arguments for our consideration.

POINT I THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE HIS TRIAL IN ABSENTIA VIOLATED HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II THERE IS AN INSUFFICIENT RECORD TO DETERMINE THE OTHER ISSUES IN THIS APPEAL HENCE THIS COURT SHOULD REMAND THIS MATTER TO THE LAW DIVISION FOR A HEARING TO RECONSTRUCT THE RECORD OF JUNE 19, 22, 23, 24, 25, 29, AND 30, 1992.

As for his first argument point, defendant argues the trial court erred when it determined he had waived his right to be present at trial and, at the least, the court should have conducted a full evidentiary hearing before denying defendant's motion for a new trial. In support of his argument, defendant cited the following language from the current version of Rule 3:16(b)

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 (a) the defendant's express written or oral waiver placed on the record, or (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, or (2) trial has commenced in defendant's presence.

Defendant also cited language in Rule 3:9-1(e) as it currently exists, which provides that at the pretrial conference, the court must inform the defendant of his right to be present at trial and of the consequences of failing to appear for trial, including the possibility that the trial will take place in his absence. Id.

Defendant asserts the record fails to establish that he waived his right to be present at the trial in accordance with Rule 3:16(b); that the pretrial memorandum failed to advise the trial could proceed in his absence; and that there was insufficient evidence he was present at the beginning of the trial.

Defendant does not indicate whether or not he was absent during all or just part of the trial, although his arguments suggest he is taking the position that he was absent during the entire trial. He does not contend he was involuntarily absent from the trial. With respect to the State's claim he had been present for the first two days of the trial, defendant argues the State's evidence is insufficient because it merely consists of "an unsworn report, submitted by the State, of a Prosecutor's investigator who claimed in the report that Sanders was present for the first two days of trial."

First, the language in Rules 3:16(b) and 3:9-1(e) cited by defendant in his brief in support of his argument did not exist at the time of defendant's trial. At the time of trial, Rule 3:16 stated, in pertinent part, that

[t]he 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 the sentence, unless otherwise provided by rule, but the defendant's voluntary absence after trial has commenced in his presence shall not prevent its continuing to and including the return of the verdict.

[R. 3:16. (emphasis supplied.).]

Further, Rule 3:9-1 as it existed at the time of trial did not mandate that the court advise a defendant of his right to be present at trial, and, if he chose to be absent, the trial might proceed in his absence.

At the time of trial, the prevailing case on the implications of a defendant failing to attend his criminal trial was State v. Hudson, 119 N.J. 165 (1990). In this matter, the two defendants appeared in court the morning their trial was scheduled to begin. Hudson, supra, 119 N.J. at 167. The trial court instructed the parties and counsel to return in the afternoon for jury selection, but defendants failed to reappear later that day. Id. at 168-69. The court ordered the trial to proceed in defendants' absence; defendants were subsequently convicted of various offenses. Id. at 169-70.

The Court affirmed the trial court's decision to proceed with the trial because defendants were aware the trial was going to proceed that day but voluntarily decided to not be present. The Court held that as long as a defendant has "received adequate notice of the date, time, and place of trial, and of the right to be present," and has been informed of the "consequences of the failure to appear" at trial, "a defendant's knowing, voluntary, and unjustified absence before or after trial has commenced does not prevent trial from proceeding in absentia." Id. at 179-80, 182.

The Court observed that the version of Rule 3:16 in effect at the time failed to mandate trial courts to advise a defendant of his right to be present at trial and that a trial might proceed in his absence. Id. at 182. The Court referred Rule 3:16 to the Criminal Practice Committee with the recommendation that the criminal practice rules be amended to require trial courts to inform a criminal defendant of these rights at the time of arraignment. Ibid.

Effective September 3, 1992, Rule 3:9-1(a) was amended to require trial courts to inform defendants at the time of arraignment of the right to be present at and of the consequences of failing to appear for trial, including the possibility that a trial will take place in defendant's absence. R. 3:9-1(a). Subsequently, Rule 3:9-1 was amended to state that these defendants be given notice of these rights at the pretrial conference. See Rule 3:9-1(e). Rule 3:16 was also amended, effective September 3, 1992, to add substantially the same language that presently appears in Rule 3:16(b). This rule provides the circumstances under which a defendant may be found to have waived his right to be present at trial. R. 3:16(b).

The Hudson Court determined that even though the defendants in that case had not been explicitly informed of the right to be present at trial, the fact they appeared in court on the day of trial revealed they had sufficient knowledge of and waived this right. Hudson, supra, 119 N.J. at 183-84. The Court further found that while there was no explicit evidence the defendants knew the trial would proceed in their absence, the trial court did not abuse its discretion when it decided to proceed with the trial in their absence. Ibid.

Here, there is unrefuted evidence in the form of an affidavit by one who was in the courtroom during the trial that defendant was present during the first two days of trial but was not present during the final two days. At the time of the trial, Rule 3:16 provided that a defendant's voluntary absence after a trial had commenced in his presence did not preclude a court from continuing the trial through to the return of the verdict.

Defendant argues there is no evidence he was advised before trial of his right to be present at the trial. However, like the defendants in Hudson, the very fact defendant appeared for trial on the first two days of trial indicates he was not only aware of but acted upon his right to be present at trial.

As for his assertion there is no evidence he was informed the trial might proceed in his absence, it is defendant who has the burden of showing he did not knowingly and voluntarily waive his presence at trial. State v. Finklea, 147 N.J. 211, 220 (1996). "The State does not have the burden of proving that a defendant's absence is unjustified. To the contrary, a defendant has the burden of proving the absence was justified." Ibid. In our view, defendant failed to provide that proof.

While the court reporter certified the verbatim record for the trial and one pretrial motion had been lost, there is no indication any other verbatim records in this matter were also misplaced. An examination of the transcripts of those other proceedings would have put to rest what the court had informed defendant on this issue, but defendant did not come forward with that evidence.

We are satisfied from our review of the record and applicable legal principles that the trial court did not abuse its discretion when it denied defendant's motion for a new trial.

Defendant requests we remand this matter to the trial court with instructions that the record be reconstructed, see R. 2:5-3(f), so defendant can examine the record to satisfy himself that he received a fair trial. We decline to consider this question as defendant did not raise this issue before the trial court. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).

To the extent any arguments raised by defendant have not been explicitly addressed in this opinion, it is because we are satisfied the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.