Opinion
DOCKET NO. A-3814-12T2 DOCKET NO. A-4241-12T2
06-04-2015
STATE OF NEW JERSEY IN THE INTEREST OF I.Y., a minor. STATE OF NEW JERSEY IN THE INTEREST OF M.R., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant I.Y. (Karen A. Lodeserto, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.R. (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, Legal Assistant, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FJ-13-779-13 (A-3814-12); FJ-13-778-13 and FJ-13-1214-13 (A-4241-12). Joseph E. Krakora, Public Defender, attorney for appellant I.Y. (Karen A. Lodeserto, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.R. (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Laura C. Sunyak, Legal Assistant, on the brief). PER CURIAM
Following a bench trial, I.Y. and M.R. were convicted of an act, which if committed by an adult, would constitute theft of moveable property, N.J.S.A. 2C:20-3(a), a disorderly persons offense. The court dismissed the charge of possession of burglar's tools. The trial judge sentenced M.R. to a one-year term of probation, concurrent to a probationary period that he was already serving, and ordered him to comply with the results of a substance abuse evaluation. The judge also sentenced I.Y. to one year of probation, and granted his request for a deferred disposition upon conclusion of the probationary term.
We consider I.Y. and M.R.'s back-to-back appeals in a single opinion because they were tried together and their appeals involve a common set of facts. We have consolidated the appeals for purposes of this opinion and affirm their convictions.
I.
We recount the following facts from the record developed before the trial court. During the late afternoon of August 22, 2012, A.O. reported that his bicycle was stolen after he parked it at a bike rack at the East End Avenue Beach in Avon, which abuts Bradley Beach to the north. A.O. had joined his family on the beach, and did not see the theft occur.
We use initials to protect the confidentiality of the victim who, like I.Y. and M.R., is also a minor.
At 5:27 p.m., Officer Anthony Pecelli of the Avon Police Department received a dispatch call from Southcom, the regional dispatch center for southern Monmouth County. The dispatch call relayed a tip from M.P., an Avon resident, that she observed "two black male teens" stealing a bike by the East End Avenue Beach entrance. M.P., who did not testify, further indicated that the two youths were heading northbound on the boardwalk.
About two minutes later, Pecelli stopped two African-American teenagers who were walking northbound in the area, having just entered Bradley Beach. According to Pecelli, they were the only African-American teens in the area. Neither boy had a bike when Pecelli first observed them.
Pecelli approached I.Y. and M.R. and stated "[h]ey, what's up guys, come here a minute." They walked over to Pecelli, who proceeded to question them separately, asking where they had come from and where they were headed. The juveniles gave inconsistent answers; one indicated that the two were going to a cousin's house in Ocean Grove to the north, while the other indicated that they were going to a friend's house in Belmar to the south.
Pecelli then retrieved M.P.'s phone number and called her from his cell phone to obtain a more specific description of what she had observed. M.P. told Pecelli that one of the teens she saw stealing the bike was wearing "grayish denim jeans and a white t-shirt" while the other was wearing "shorts and a dark t-shirt." M.P. also advised that the two boys had a backpack and that they arrived at the bike rack on one black bike, and left with another multicolored bike. M.P's description matched the clothes of the juveniles that Pecelli had stopped.
When questioned, I.Y. and M.R. denied taking A.O.'s bike, but admitted that they had a black bicycle, which was leaning against a pole along the boardwalk, fifty to seventy feet to the south in Bradley Beach. Turning their attention there, police observed the black bike alongside a multicolored bicycle by the pole. A.O.'s family arrived, and identified the multicolored bike as the one that was stolen. The juveniles were then arrested and taken to Avon police headquarters.
At the police station, one juvenile "was placed on a metal bench right by the door," and the other "was placed in a chair, about five, six feet away." While sitting, the two detained teens conversed with each other, laughing, admitting that they stole the bike, and expressing surprise at having been caught.
The court set an initial trial date of February 20, 2013. M.R. appeared on that date and signed a Hudson notice, advising him of the potential consequences should he fail to appear for trial. At the prosecutor's request, the court adjourned the trial date to February 26.
State v. Hudson, 119 N.J. 165, 182 (1990).
M.R. was initially absent on February 26 because his mother "mixed up" the court date and instead drove him to school. At the request of counsel the court granted a one-hour recess to allow M.R. time to travel to the courthouse. When M.R. remained absent, the prosecutor urged the court to proceed with A.O.'s testimony, which would only be offered to prove "that the bike [that] was taken was in fact his bike," and for no other purpose. The court permitted A.O. to testify, and he was cross-examined extensively by both trial counsel. M.R. arrived following the completion of A.O.'s testimony, and he was present for the remainder of the hearing on the suppression motion and trial.
Judge James J. McGann denied the suppression motion. The judge found that Pecelli "received a call which stated that two black male teens were attempting to steal a bike in the area of East End Avenue and Ocean Avenue and that they were heading northbound on the boardwalk." Judge McGann found that Pecelli "was on the scene within two to three minutes. And stopped the two juveniles" in Bradley Beach, "initially engag[ing] in conversational type questions," such as "where they were headed, what's going on." Judge McGann concluded that this initial encounter "evolved fairly quickly into an investigatory stop." He found the investigatory stop valid because Pecelli possessed
information at least leading to a particularized suspicion of the crime. These are the only two suspects - - meaning that a description of the area that was provided on the Southcom. And they were heading in that direction. That was further buttressed by [Pecelli's] call to [M.P.] [in] which [she] described the clothing that [the] two young men were wearing.
Judge McGann next determined that the information gained during the investigatory stop ripened into probable cause to arrest the two juveniles. The judge cited a combination of factors establishing probable cause, including the information supplied by M.P., I.Y. and M.R.'s inconsistent answers as to where they were going, and the identification of the stolen bike by A.O.'s family, which the police discovered resting alongside the juveniles' black bike on the boardwalk. The court also declined to suppress I.Y. and M.R.'s statements at the police station, finding that although they were then in custody, their statements were not the product of police interrogation.
The juveniles next moved to dismiss the possession-of-burglary-tools charge, which the court granted without objection from the State. However, the court denied their motions to dismiss the theft count. With the apparent consent of all parties, the court merged the testimony from the suppression hearing into the trial testimony. Neither juvenile testified nor called any witnesses.
Based on this record, Judge McGann found the State had met its burden of establishing each juvenile's guilt on the theft charge beyond a reasonable doubt. The judge accepted the testimony of the State's witnesses, found them to be credible, and identified with particularity the basis for his credibility determinations.
I.Y. and M.R. filed separate appeals. In his appeal, I.Y. argues:
POINT I THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT I.Y. COMMITTED THEFT OF THE BICYCLE
POINT II I.Y.'S STATEMENTS ABOUT TAKING THE BICYCLE SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE OBTAINED DURING A CUSTODIAL INTERROGATION AND HE WAS NOT ADVISED OF HIS RIGHTS TO REMAIN SILENT AND TO COUNSEL AND NO EFFORT WAS MADE TO ADVISE HIS PARENTS THAT HE WAS BEING QUESTIONED
POINT III THE COURT RELIED ON INADMISSIBLE HEARSAY
In his appellate brief, M.R. argues:
POINT I THE BICYCLE AND ANY STATEMENTS OBTAINED FROM M.R. SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF HIS WARRANTLESS AND UNSUPPORTED SEIZURE
POINT II M.R. WAS DENIED HIS CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO BE PRESENT AT HIS TRIAL WHEN THE COURT REFUSED TO AWAIT HIS ARRIVAL AND ALLOWED A WITNESS TO TESTIFY IN HIS ABSENCE
II.
We begin by addressing the suppression issues. Initially we consider M.R.'s contentions that (1) the juveniles' detention and arrest were unlawful because the police lacked both reasonable suspicion and probable cause, and (2) this was not a mere investigative stop but rather the youths were subject to custodial interrogation. Consequently, M.R. argues that the trial court should have suppressed both the bicycle and the incriminating statements as the fruit of their unlawful detention. We disagree.
"Appellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "Deference to these factual findings is required because those findings are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 424-25 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)) (internal quotation marks omitted)). We "cannot substitute [our] own findings merely because [we] would have drawn different inferences from the evidence." State v. Brown, 216 N.J. 508, 538 (2014). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 162). We review its conclusions of law de novo. State v. Rockford, 213 N.J. 424, 440 (2013) (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).
Under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 904-06 (1968) (seizure of a person); cf. State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "'the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects . . . .'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
In this case, the initial information about the bicycle theft was provided to police not by an anonymous caller, but by a local citizen. Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary. State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); Stovall, supra, 170 N.J. at 362. "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." Davis, supra, 104 N.J. at 506.
We are satisfied that Pecelli's initial actions amounted to a field inquiry rather than a Terry stop. Pecelli acted on information from M.P. that "two black male teens" had just stolen a bike and were heading northbound on the boardwalk. Shortly thereafter, Pecelli observed the juveniles walking northbound, and they were the only two African-American teens in the area. He had a sufficient basis to make further inquiry. The trial court found that Pecelli initially asked the two juveniles conversational-type questions, and that they were free to leave. Moreover, "[p]olice may conduct a street interrogation or field inquiry without grounds for suspicion." State ex rel. J.G., 320 N.J. Super. 21, 27 (App. Div. 1999) (citing State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984)); Pineiro, supra, 181 N.J. at 20. Field inquiries do not trigger constitutional protections. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).
We share the trial court's conclusion that the field inquiry then evolved into a valid investigatory stop. It was during this period that the police developed a particularized suspicion that the juveniles were involved in the theft of the bike. Initially they gave inconsistent answers when asked where they were headed. Pecelli then called M.P. back, and obtained a more detailed description of the suspects' clothing, which matched that of the teens he had detained.
M.R. contends that the police stopped him primarily because of his race, and not because of any particularized suspicion of criminal activity. M.R. relies on State v. Shaw, 213 N.J. 398 (2012), in support of his contention that the investigatory stop here was unlawful. In Shaw, police were executing an arrest warrant of a fugitive at an apartment complex. Id. at 402-03. The person identified on the arrest warrant was described only as being an African-American male. Id. at 403-04. Upon arriving at the apartment complex, the police observed two men walking out of the complex who matched that vague racial description, but who were not engaged in any suspicious activity. Ibid. The police nevertheless detained them for five to seven minutes, and determined that one of them, Shaw, had an outstanding warrant for a parole violation. Ibid. They also found two bricks of heroin on Shaw. Id. at 405.
Shaw moved to suppress the heroin as the fruit of his unlawful detention. Ibid. The Court explained that because the "only descriptive feature Shaw shared with the fugitive" was his race, and because Shaw did not act suspicious in any way, the police lacked a valid basis to detain him. Id. at 411-12.
In the present case, unlike Shaw, the police were acting on more than just a vague racial description alone. Instead, Pecelli had received a presumptively reliable tip from a named concerned citizen that furnished him with particularized information such as the teens' location and direction and the fact that they were traveling together. Pecelli spotted the two youths only a short distance away, and just a brief time after receiving the dispatch call. The juveniles then gave inconsistent answers to the preliminary questioning which prompted police to investigate the matter further, including obtaining the more detailed information from M.P.
We are also satisfied that police then developed sufficient probable cause to arrest the two juveniles. Here, besides providing a description of their clothing, M.P. informed Pecelli that she observed them arrive at the bike rack on one black bike, and then leave with another multicolored bike. When further questioned during the investigative stop, the juveniles denied taking a bike, but admitted they had the black bike that police observed leaning against a pole on the boardwalk. Beside their black bike was a multicolored bike, which A.O.'s family then identified as A.O.'s stolen bicycle. We conclude that the "totality of [these] circumstances" established a "reasonable probabilit[y]" that the multicolored bicycle had been stolen, and that the detained youths had committed the theft. See State v. Chippero, 201 N.J. 14, 27 (2009).
For similar reasons, we sustain the police questioning of the juveniles during the investigative stop, which was conducted without first advising them of their Miranda rights. "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" does not require Miranda warnings. Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. The United States Supreme Court, and our courts, have distinguished between detaining a citizen in the course of an investigatory stop, pursuant to Terry, supra, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, and placing a citizen in custody so as to trigger Miranda requirements. See Berkemer v. McCarty, 468 U.S. 420, 435-442, 104 S. Ct. 3138, 3147-52, 82 L. Ed. 2d 317, 331-336 (1984); State v. Smith, 374 N.J. Super. 425 (App. Div. 2005).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).
We also reject I.Y.'s argument that the trial court erred in denying his motion to suppress the statements he made while conversing with M.R. at police headquarters. A person subject to custodial interrogation must first be informed of his right to remain silent and right to counsel. Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. The predicate requirements of Miranda then are that defendant must be in custody and under interrogation. Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. Williams, 59 N.J. 493, 501 (1971).
Interrogation occurs when police do or say something "that they should have known were reasonably likely to elicit an incriminating response." State v. Brabham, 413 N.J. Super. 196, 210-11 (App. Div.), certif. denied, 203 N.J. 440 (2010). In other words, an interrogation occurs when an individual is compelled to speak. State v. Godfrey, 131 N.J. Super. 168, 178 (App. Div. 1974), aff'd, 67 N.J. 267 (1975). Conversely, the prosecution may use statements that have been volunteered by a defendant, even if the police failed to give a Miranda warning. Brabham, supra, 413 N.J. Super. at 210.
Here, it is undisputed that the juveniles were not advised of their Miranda rights. As the trial court found, there is also "no question that [I.Y. and M.R.] were in custody" when they admitted to stealing the bike as they conversed. However, nothing in the record suggests that their admissions resulted from any police conduct that was "reasonably likely to elicit an incriminating response." Brabham, supra, 413 N.J. Super. at 210-11 (citation and internal quotation marks omitted). To the contrary, I.Y. and M.R. were having "an open discussion" with each other in which they were "laughing about taking [the bike]," and expressing surprise at having been caught. Accordingly, the trial court did not err in failing to suppress the admission of guilt, notwithstanding the absence of Miranda warnings. See ibid. (explaining that Miranda does not apply to voluntary statements).
III.
I.Y. argues that, in finding him guilty of the theft offense, the trial court improperly relied on Pecelli's hearsay testimony, which included statements made to him by M.P. and A.O.'s family. We conclude that the record fails to support this contention.
"[A] judge hearing a suppression motion relating to the admissibility of evidence may consider hearsay or other inadmissible proof" in reaching its determination. State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), rev'd on other grounds, ___ N.J. ___ (2015); see also N.J.R.E. 101(a)(2). Generally, probable cause may also be established on the basis of hearsay evidence. See State in Interest of A.T., 245 N.J. Super. 224, 227-28 (App. Div. 1991); State in Interest of J.L.W., 236 N.J. Super. 336, 344 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991); State in Interest of B.T., 145 N.J. Super. 268, 272-73 (App. Div. 1976), certif. denied, 73 N.J. 49 (1977). Here, in ruling on the suppression motion, the court referenced the statements of M.P. and A.O.'s family when it determined that Pecelli "had information at least leading to a particularized suspicion of the crime." The judge also reiterated that these hearsay statements supported the probable cause for the juveniles' arrest.
In contrast, Judge McGann did not reference the hearsay statements in finding that the juveniles stole the bicycle. Moreover, nothing in the record suggests that the court relied on inadmissible hearsay in finding I.Y. guilty. Judge McGann's remarks make clear that he understood the distinction between the types of evidence that were admissible at each phase of the proceedings. For example, he stated, "I can sort out the difference between the suppression and the trial." It is well-established that judges sitting as factfinders are assumed to be "capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision-making process . . . ." State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999).
We note that our Supreme Court recently expressed its disapproval of a merged suppression hearing and trial, and that "[t]he better practice is to conduct two separate proceedings." State v. Gibson, 219 N.J. 227, 240-45 (2014). Neither juvenile raises this issue on appeal, and it appears from the record that the trial court disclosed its intention to incorporate the motion record into the trial record, all counsel consented, and defense counsel was given broad latitude in cross-examining the State's witnesses.
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I.Y. further argues that the State failed to prove beyond a reasonable doubt that he committed the theft. In assessing this argument, we recognize that our standard of review in juvenile delinquency bench trials "is narrow and is limited to evaluation of whether the trial judge's findings are supported by substantial, credible evidence in the record as a whole." State in Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (citing State v. Locurto, 157 N.J. 463, 471 (1999); Johnson, supra, 42 N.J. at 161), certif. denied, 180 N.J. 453 (2004). As an appellate court, we further owe special deference to those findings which are substantially influenced by the judge's feel of the case. Elders, supra, 192 N.J. at 244.
Mindful of these standards, we reject I.Y.'s argument and affirm his conviction substantially for the reasons expressed by Judge McGann in his oral opinion. A.O.'s testimony established that his bike was stolen. His family then identified the stolen bike immediately next to the juveniles' bike. They were later overheard at the police station admitting to stealing the bike, and expressing surprise that they were caught.
IV.
Finally, we reject as without merit M.R.'s argument that the court erred in allowing A.O. to testify in his absence. M.R. was given written notice of the trial date six days earlier, which informed him of the potential consequences should he fail to appear. See Hudson, supra, 119 N.J. at 182. A trial court has the discretion to proceed in the absence of a defendant who has inexcusably failed to appear if that defendant received actual notice. Id. at 183.
In any event, even if the decision to allow A.O. to testify before M.R. arrived was error, M.R. has failed to demonstrate prejudice. Courts employ a fact-sensitive test to determine prejudice when a defendant is absent from a portion of a trial. See, e.g., State v. Dellisanti, 203 N.J. 444, 458-59 (2010); State v. Hammond, 231 N.J. Super. 535, 541-43 (App. Div.), certif. denied, 117 N.J. 636 (1989). Here, A.O.'s testimony was limited to proving that his bike was stolen, an undisputed issue in the case. Moreover, both trial counsel cross-examined A.O. extensively, and M.R. does not contend that he had critical information to impart to his attorney that would have assisted in his defense or altered the outcome of the case. Cf. State v. Luna, 193 N.J. 202, 210 (2007) (noting that the right to be present at trial serves to ensure that defendant can assist in his own defense).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION