The Jersey Lawyer

In State v. Dellisanti, the New Jersey Supreme Court reversed the conviction of the defendant because his right to be present during the enirety of his trial was violated.  While the jury was deliberating in defendant’s criminal trial in Bergen County, sheriff’s officers from another county arrested defendant, with the cooperation of the trial court presiding over his Bergen County trial, and took him into custody.  As a result, defendant was not present at his trial while the jury was deliberating and when the jury rendered its verdict.  The Court found that defendant’s absence from the trial did not comply with the waiver requirements in Rule 3:16(b) and therefore violated his constitutional right to be present during his trial; accordingly, the Court reversed the defendant’s conviction.

The defendant in this case was charged with knowingly exhibiting or displaying to a law enforcement officer a false motor vehicle insurance identification card in violation of N.J.S. 2C:21-2.3(b), a fourth degree crime; uttering a writing or record knowing that it contains a false statement or information with the purpose to conceal a wrongdoing in violation of N.J.S. 2C:21-4(a), a fourth degree crime; and aggravated assault for purposely, knowingly, or recklessly causing bodily injury to a firefighter in violation of N.J.S. 2C:12-1(b)(5)(b), a third degree crime.  When the jury began deliberating, Morris County sheriff’s officers arrived to arrest the defendant on a violation of probation.  The court advised defendant and defense counsel that the sheriff’s officers would be taking defendant into custody for the violation of probation outside of the presence of the jury.  Defendant was not present in court for the remainder of the trial.  In order to remove any prejudice, the judge told the jury that the defendant had a medical emergency and would be absent from the court room.  The jury returned a guilty verdict on the two fourth degree charges, and a not guilty verdict on the aggravated assault charge.  Defendant was sentenced to 90 days county jail as a condition of a one year probation term.

In analyzing this case, the Supreme Court first noted that a defendant’s right to be present at trial is protected by the Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and by Article  I, paragraph 10 of the New Jersey Constitution.  In circumstances that do not involve the confrontation of witnesses or evidence against a defendant, the right to be present is protected by the Due Process Clause of the Fifth and Fourteenth Amendments.  In New Jersey, the right is considered so vital to the proper and fair functioning of the criminal justice system, that it is protected by a specific rule of court.  Rule 3:16(b) specifically provides that “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.”  The rule also provides some limited circumstances under which a defendant can waive his right to be present.  “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.

The Court noted that some form of robust right for a defendant to be present at every stage of a criminal trial has been part of both the New Jersey procedural rules and the federal rules of criminal procedure.  However, the Court noted that in determining what to do when a defendant’s right to be present at trial is violated, historically, the test has been whether the defendant was prejudiced by his absence.  When an absence affects a defendant’s confrontation rights, prejudice can be readily assessed; however, when the defendant’s confrontation rights are not at issue, the prejudicial effect on the defendant of his absence at trial has to be examined more critically.   However, no other case has involved facts similar to those in this case, where a defendant is involuntarily hauled off from the trial by the law enforcement officials of another county.

According to the Court, Rule 3:16(b), because it specifically provides a defendant with the right to be present when the jury deliberates and renders its verdict, makes what happened at the defendant’s trial in this particular case untenable.  In reaching the conclusion that what happened in this case was neither just, nor fair, the Court went on to state that “we cannot tolerate a law enforcement agency’s removal of defendant from his trial courtroom, thereby forcibly preventing him from being able to confront the returning jury, with its verdict, by his presence.”  The Court held that because there was nothing on the record indicating that defendant’s removal from the trial court room was voluntary, the conviction must be reversed.

For purposes of completeness, the Court also held that it was improper for the prosecutor at trial to ask defendant questions on cross-examination that required the defendant to comment directly on the credibility of a prosecution witness.  The prosecutor asked the defendant several times on cross-examination, “so, [the firefighter] is either mistaken or lying about what he testified to?”  The Court noted that credibility is an issue within the jury’s ken and with which the jury does not need any assistance.  Therefore, it is inappropriate to ask the defendant to comment directly on the credibility of the State’s witnesses.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation in order to analyze any weaknesses in the State’s case, the strength of potential defenses, and to point out any mistakes made by the State in the prosecution of the case.