DOCKET NO. 072323 STATE OF NEW IERSEY, CRIMINAL ACTION Plaintiff - Respondent On Leave to Appeal from the Superior Court of New Jersey V. Sat Below: GIUESEPPE TEDESCO, Defendant -- Appellant BRIEF ON BEHALF OF THE STATE OF NEW JERSEY DAVID J. WEAVER SUSSEX COUNTY GREGORY R. MUELLER "933 FIRST ASSISTANT SUSSEX COUNTY PROSECUTOR 53,; SUSSEX COUNTY OFFICE 19-21 HIGH STREET $1353 NEWTON, NEW JERSEY 07860 (973) 383~1570 OF COUNSEL AND ON THE BRIEF lb'-0 2 :13} I gnu Hon. Anthony J. Parrillo, P.I.A.D. Hon. Douglas Fasciale, . -E. "i ,4 "ft 51%; TH 'Eu TABLE OF CONTENTS STATEMENT OF THE MATTER INVOLVED . . . . . . . . . . . . . . 1 STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 5 LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 8 Point I WHERE A DEFENDANT REQUESTS TO WAIVE HIS APPEARANCE AT SENTENCING PURSUANT TO THE SENTENCING COURT RETAINS DISCRETION TO COMPEL HIS OR HER APPEARANCE BECAUSE THE DEFENDANT DOES NOT HAVE A UNILATERAL OR ABSOLUTE RIGHT TO ABSENTIAD . . . . . . . . 8 POINT II JUDGE CONFROTI DID NOT ABUSE HIS DISCRETION IN COMPELLING THE APPEARANCE AT SENTENCING . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 27 TABLE OF AUTHORITIES CASES: Ba11 V. United States, 470 U.S. 856, 105 1668, 84 L.Ed.2d 740 (1985) Illinois V. Allen, 397 U.S. 337, 90 1057, 25 L.Ed.2d 353 Payne V. Tennessee, 501 U.S. 808, 111 2597, 115 L.Ed.2d 720 People V. Frye, 18 Ca1.4w'894 (1998) State V. Bey, 161 N.J. 233 (1999) State V. Dunne, 124 N.J. 303 (1991) State in the Interest of K.P., 311 N.J. Super. 123 (Ch. Div. 1997) State V. Morton, 155 N.J. 383, 441 (1998) State V. Muhammad, 145 N.J. 23 (1996) State V. Spivey, 122 N.J. Super. 165 N.J. other grounds 65 N.J. 21 (1974) reV'd on State V. Zhu, 544 (2000) United States V. Faulks, 201 F.3d 208 (39 Cir. 2000) United States V. Fitzpatrick, 437 0.20 19 (2m1Cir. 1970) United States V. Moore, 466 F.2d 547 Cir. 1972) 249(App. Div. (1970). (1991) 1973Singer, 783, United States V. 380 U.S. 24, 85 13 L.Ed.2d 630 (1965) United States V. 532 F. Supp. 913 Turner, (N.D. Cal 1982) CONSTITUTIONAL PROVISIONS: U.S. Const., Amend. U.S. Const., Amend. VI Const., Amend. XIV Const., Art. 1, Paragraph 10 Const., Art. 1, paragraph 22 STATUTES: N.J.S.A. 2C:11-3a N.J.S.A. 2C:12w1b(5) 2C:12--3a 2C:39~4a 2C:39--5b R. 1:1--2 R. 3:21--3; 3:16 Rule 43 TABLE or APPENDIX Indictment No. 10--O8--OO289--I Verdict Sheet Complaint Summons No. Complaint Summons No. 1915--s--2013--0o0037 Transcript of Tedesco Verdict, January 10, 2013 Defendant's Letter to Court Requesting that he be permitted to Waive his Appearance Certification of Giuseppe Tedesco Letter to Court from New Jersey Victim's Law Center Notice of Motion to Compel Defendant's Presence at Sentencing Letter from Defendant to Court Regarding PSR and Waiver Letter from State Joining in Application to Compel Defendant's Presence Transcript of Hearing dated March 13, 2013 Order Entered by the Honorable N. Peter Conforti, J.SJC. Defendant's Letter to Appellate Division Application to File Emergent Motion Appellate Division Order on Emergent Application Defendant's Letter to Appellate Division to Appellate 12 Sal Sa4 Sa6 Sa7 Sa8 Sa22 Sa23 Sa24 Sa25 Sa28 Sa29 Sa30 Sa56 Sa57 Sa58 Sa62 Division Requesting Stay . . . . . . . . . . . . . . . . . Sa67 Appellate Division Order Denying Stay . . . . . . . . . . Sa69 Defendant's Application to Supreme Court for Stay and Leave to Appeal . . . . . . . . . . . . . . . . . Sa72 Supreme Court Order Granting Stay and Leave to Appeal . . . Sa74 Certification of Michelle Ruggieri . . . . . . . . . . . . Sa75 Written Opinion of Hon. Paul W. J.S.C. in State v. Charles Cullen . . . . . . . . . . . . . . . . Sa78 Transcript of Opinion of Hon. Linda Gr Baxter, P.J.S.C. in State v. Fred Neulander . . . . . . . . . . . . . . . . Sa99 STATEMENT OF MATTER INVOLVED The issue before the Court is whether a court must accept a defendant's request to waive his iappearance at sentencing pursuant to even though the plan language of rule does not confer an absolute right on the defendant to waive his appearance or require the court to accept such a request. Additionally, assuming the Court does have discretion to reject a defendant's waiver request, this Court will have to determine if Judge Conforti abused his discretion in compelling the defendant's appearance under the facts of this case. The Court is considering this case largely as an issue of first impression. There are no New Jersey Supreme Court decisions or Appellate Division decisions addressing this precise question. However, there are two unreported Law Division decisions where the Court compelled a defendant's appearance at sentencing despite his request to waive same under R. v. Charles Cullen and State v. Fred Neulander). Additionally, this Court has issued previously rulings that are instructive on the current question before the Court. For example, in State v. Dunne, 124 N.J. 303 (1991), the Court held that the existence of a constitutional right does not necessarily entitle a defendant to waive that right and dictate that a court proceed in the manner he requests. Additionally, the California Supreme Court held that a defendant was not constitutionally entitled to absent_ himself from, the penalty phase of his capital prosecution. People v. Frye, 18 Cal.4w 894 (1998). Moreover, there is federal precedent, cited below, that is instructive on the issue before the Court. STATEMENT OF PROCEDURAL HISTORY Sussex County Indictment No. 10~08w00289~I was filed on August 19, 2010 and charged defendant Giuseppe Tedesco with first degree murder, contrary to N.J.S.A. and/or (2), second degree_unlawful possession of a handgun, contrary to N.J.S.AJ 2C?39--5b, and second. degree jpossession of 51 handgun with the purpose to use it unlawfully against a person, contrary to 2C:39--4a. (Sa1).1 On January' 10, 2013, a jury convicted defendant on all counts of the Indictment. (Sa4). On January 11, 2013, the defendant was charged with third degree aggravated assault in violation 'of N.J.S.A. third degree terroristic threats in violation of N.J.S.A. 2C:12--3a and a disorderly persons offense of obstructing the administration, of law in violation of N.J.S.A. He was charged with these offenses for his conduct in the courtroom shortly after the jury announced its verdict. (Sa6; Sa8). Sa -- refers to State's Appendix Sb refers to State Appellate Brief Dated March 15, 2013. 2 The Court scheduled <.the record ix) rebut the prosecutor's sentencing argument in support of aggravating and mitigating factors without being present. (See N.J.S.A. stating that an Appellate Court may modify a defendant's sentence where the record does not support the trial court's finding of aggravating and mitigating factors). Also, the defendant simply does not know, at this juncture, if there will be any supplementary information added to the presentence report on the eve of sentencing as is often the case. How would the defendant be able to address any late changes to the presentence report as required by Court Rule and statute. 3; 3:21--2; N.J.S.A. Without knowing any of this information, and given the magnitude of this particular sentencing, how could the defendant's waiver be knowing, voluntary or intelligent? Would a lawyer 'that permitted ea waiver under such circumstances .be found ix) be constitutionally deficient in 'the inevitable Post Conviction Relief application that would follow? Additionally, it is unclear whether acceptance of a written waiver, as provided. in this case, would suffice without the court addressing iflue defendant personally. See State KL Bey, 161 N.J. 233, 277 (l999)(the right of allocution should be addressed by the court with the defendant personally, noti through counsel). See also State v. Morton, 155 N.J. 383, 441 21 (l998)(holding that in order to meet the requirement that the waiver of constitutional right is knowing, intelligent and voluntary - ii; is the judicial. obligation. to assure that the defendant understands the implication of his waiver. Consequently, trial courts should question defendants personally regarding the waiver of a constitutional right). For all the above reasons, the state submits that in this case, the defendant has a fundamental interest in attending his sentencing. Considering iflua value ix) defendant ill attending, this factor also weighs in favor of compelling his presence. Societal Interest in Compelling Defendant's Appearance Judge Conforti stated that "a court can and should evaluate whether there is a compelling societal interest that demands a defendant's appearance [at sentencing]." (Sa42). Judge Conforti found. that the nature of the crime .directly related, to this societal. interest. The Judge stated, cases involving "public consternation and notoriety, crimes of egregious acts of violence, crimes adversely affecting the institutions of government [and] crimes affected a large population base" were cases impacted the societal interest that would. militate in favor of requiring a defendant's appearance at sentencing. (Sa42). 22 In State v. Neulander, Docket No. 1993-06-00, the Honorable Linda G. Baxter likewise found this societal interest compelled Rabbi Fred Neulander attendance at his sentencing. Judge Baxter stated: I find that jpunishment ibegins .not the Inoment 'that the defendant enters the cell door of whatever prison will ultimately hold him but I find that the proceeding here itself is the beginning of the sentencing phase and I find, therefore, that there is a valid societal purpose in having a defendant be present to hear the words of the State, to hear the words of the Court, and to hear the words of the victims and. their right to do so, of course, is contained within our State Constitution but I find there is a valid societal interest in having a defendant hear those words. .That is part of the punishment and it is part of the sentence. (Sa104). Judge Baxter's "societal interest" reasoning jil Neulander was cited by the Honorable Paul W. J.S.C. when he exercised his discretion in compelling the appearance of Charles Cullen to appear at sentencing. After quoting from Judge Baxter's decision, Judge stated: Principles of justice and sentencing compel the conclusion that Mr. Cullen should not be granted the opportunity to absent himself from the courtroom when his sentence is pronounced. Absent practical impediments, Mr. Cullen should kma compelled. to face the Court at sentencing and listen to the words of the Court and the loved ones of the victim whom he has so immeasurably and irreparably injured. (Sa95). The State submits that this "case calls for the same conclusion. This defendant committed an egregious act of 23 violence that took the life a year old woman. Additionally, his violent acts not only irreparably harmed the lives of the victim's family and friends, but the impact from this horrible crime was felt throughout the entire community where this young woman lived. It is the extreme harm caused by the defendant's conduct that compels his attendance. See Payne V. Tennessee, 501 U.S. 808, 820, 111 2597, 115 L.Ed.2d 720 (l991)(when a trial court exercises its discretion in connection with a sentencing proceeding, "consideration of the harm caused by the crime has been an important factor in the exercise of that discretion"). In short, the State respectfully submits that like the Cullen and Neulander cases, the societal interest in this case requires defendant's attendance at his sentencing. Defendant's Sole Argument in Favor of Absentia Against all of the above, the defendant weighs a singular argument in support of his request to dodge the sentencing hearing. The defendant claims that absentra is "the simplest and most practical way to address any concerns for the safety of the individuals present in the courtroom on the date of sentencing." (Sa45). The Court correctly recognized, however, that the defendant's own misconduct causes this to be an issue. (Sa46). "Of course, the defendant himself generated the 24 unfortunate confrontation. on the day that the jury jury announced it announced its Verdict." (Sa46). Trial Courts have the ability. to implement measures to ensure courtroom security. State v. Zhu, 165 N.J. 544 (2000). is essential to the proper administration of justice that dignity, order and decorum be the hallmarks of all court proceedings in our country; that the.flagrant disregard in the courtromn of elementary standards of proper conduct should not and cannot be tolerated." State V. Spivey, 122 N.J. Super. 249, 255-256 (App. Div. 1973), rev'd (M1 other grounds 65 21 (1974). A court has numerous tools-at its disposal to control an unruly" defendant, including' the ability' to "bind Emmi gag" him. Illinois v. Allen, 397 U.S. 337, 343-344, 90 1057, 1061, 25 L.Ed.2d 353, 369 (1970). In this case, the implementation of any measure to enhance courtroom security, such as an increase in security personnel, the use of restraints or even the use of a gag are less of a due process concern because the defendant no longer enjoys the presumption of innocence and there is no chance that a jury will be impacted tar such Ineasures. Hume proceeding' at issue is ea sentencing proceeding before a judge, not a trial before jury. Applying the above referenced precedent, the Judge Conforti stated: 25 The Court's power to conduct its proceedings determines that procedure 51 court must employ for an orderly proceeding to uphold the dignity of the court. An unruly defendant can be controlled physical including a gag to prevent a vocal disruption. What is paramount in these types of cases is the court's conducting' a hearing consistent with proper decorum and the dignity and respect to which it is entitled. So, that all, concerned especially time defendant understand that the administration of justice prevail and not the narrow purposes of anyone individual. Thus, ample court security shall be in place throughout the courthouse for sentencing. And 'this Court has every confidence that with appropriate security measures this sentencing shall occur consistent with the Court Rules requiring defendant's appearance at sentencing. For any individual to attempt to challenge an. orderly sentencing proceeding, these individuals shall be dealt with by the Court according to law. (Sa46, Sa47). Consequently, Judge Conforti found. that "[w]hile it may very well be easy to allow defendant to remain in State Prison rather than transport him here to listen and possibly respond to the comments of the victims in the court, the policy consideration, the State's interest and. the 'victim's interest all Hdlitate favor of requiring defendant's appearance and outweigh any convenience derived from accepting defendant's waiver. He shall be required to appear." (Sa46). The State submits that for all of the reasons cited above, the trial court properly exercised its discretion in rejecting defendant's waiver request and compelling his attendance at sentencing. 26 CONCLUSION For all the foregoing reasons, the State respectfully requests that this Court affirm the decision of the trial and appellate court to compel the gefendant's appearance at sentencing. Respectfully submitted, DAVID J. WEAVER SUSSEX COUNTY PROSECUTOR BY: Muelleriw i.&jirst Assistant Prosecutor GREGORY R. MUELLER FIRST ASSISTANT SUSSEX COUNTY PROSECUTOR OF COUNSEL AND ON THE BRIEF DATED: April 1, 2013 27