Opinion
DOCKET NO. A-0168-14T3
07-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER G. REPOLI, JR., a/k/a PETER BROWN, a/k/a PETER G. RESPOLI, a/k/a CARMAINE REPOLI a/k/a PETER RIPOLI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-07-1706. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Peter G. Repoli, Jr., appeals from a judgment of conviction entered after a jury found him guilty of impersonating a law enforcement officer, and from his summary conviction for contempt, adjudicated after he was tardy and failed to appear for jury selection. The court remanded him into custody for the duration of his trial after finding him in contempt, and, upon his conviction for impersonating an officer, sentenced him to an eighteen-month term of incarceration.
On appeal, defendant argues that his conviction for impersonating an officer must be vacated due to improprieties during the jury selection process, in the testimony of an investigating officer, and in the court's charge to the jury. He also challenges his sentence, arguing the court failed to find applicable mitigating factors and improperly considered his prior criminal record in support of its application of the aggravating factors it found. Defendant further argues that the trial court erred in failing to hold a competency hearing based on his behavior throughout the proceedings, and that this court erred in denying his motion to accelerate his appeal. Finally, defendant contends that his contempt adjudication must be vacated as procedurally defective because the court failed to enter an order of contempt and supporting certification.
We have considered defendant's contentions in light of our review of the record and applicable legal principles. We affirm his conviction and sentence for impersonating an officer, but vacate his contempt adjudication.
I.
The facts adduced at trial can be summarized as follows. On January 26, 2013, defendant entered a restaurant in Nutley and asked for the owner by name. When the owner responded, defendant opened his wallet to display a "big sheriff badge," telling the owner he was from the Essex County Sheriff's Office, and that he was investigating the owner and looking for information about "Ray," one of the restaurant's former customers. Defendant warned that if the owner did not share everything he knew about Ray, defendant would "shut [his] business . . . [and] charge [him] with theft." Defendant said he would return the following night and close the business if the owner did not have the information by that time. Believing defendant was a sheriff's officer, the owner was scared and went home that evening to look for the requested information.
The following evening, defendant returned to the restaurant and again displayed the badge, as well as a business card bearing his name, and asked the owner several questions about Ray. Defendant also showed the business card to and asked similar questions of the owner's wife, the restaurant's manager, who assumed defendant was an undercover detective or from a "lawyer's office." Defendant repeated his threat to shut down the business and, after the owner's wife yelled and threw a checkbook at him, left the restaurant.
The owner went home that evening and, after searching defendant's name on the internet, concluded he was not a sheriff's officer. He called the police the next morning to report his encounters with defendant. Detective Thomas Perrota was assigned to the investigation and, when the owner and his wife came in two days later bearing a picture of defendant from an internet search showing that "he'[d] been arrested before," took their statements and confirmed that defendant was not a sheriff's officer.
Defendant was arrested on February 4, 2013. During the subsequent search of his person, police did not find any handcuffs, weapons, or badges. However, they recovered nine "courtesy cards" that read "Office of the Sheriff" and bore defendant's name, one of which was laminated. After his arrest, an Essex County Grand Jury returned an indictment charging defendant with fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8(b).
On the second day of jury selection in defendant's ensuing trial, he arrived late for both the morning and afternoon sessions. He attributed his tardiness for the morning session to a plumbing emergency and a misunderstanding about the time he was required to appear, and for the afternoon session to his need to fill a prescription and obtain various medications from his home.
When the panel reconvened, the court asked each potential juror whether they had "any discussion with any of the jurors about the case or speculating about the delay." After being seated, one potential juror, C.S. (Carol), disclosed that she had overheard other members of the panel saying they thought defendant was guilty, but that those members had already been dismissed. Carol was not asked whether this would affect her ability to remain impartial, and did not tell the court whether her impartiality was affected. Another prospective juror, M.G. (Martha), later told the court that she had overheard prospective jurors making similar comments, but that they were no longer on the panel. Martha was asked whether this would affect her ability to remain impartial and responded it would not. Defendant moved for a mistrial after Carol's and Martha's disclosures, arguing there was no way to be sure the overheard individuals were all dismissed. The court denied both motions based on the women's representations that the individuals they overheard were no longer present. Though both Martha and Carol were initially seated in the jury box, each was eventually excused from service.
We use pseudonyms to protect the jurors' identities.
A third venireman, E.S. (Eric), informed the court that he had overheard that one of the other prospective jurors had "tr[ied] to Google one of the people in the case and they couldn't find anything," but he assured the court the individual was no longer there. Eric indicated his impartiality would not be affected by the overheard comments, and defendant did not move for a mistrial. Eric was selected and served on the jury.
When the court began to ask Eric whether his impartiality would be affected, Eric silently indicated it would not and the court did not finish its question.
A fourth potential juror told the court that, while they were waiting for defendant to arrive, she "heard that the defendant . . . was not present." When asked if this information, true or false, would affect her ability to remain impartial, she replied it would not. The court did not ask if any of the participants in the conversation she overheard were still present. The juror was seated but eventually excused.
Defendant did not appear for jury selection the following day, and later told the court his medications' side effects caused him to sleep through the proceedings. As a result, before the parties presented opening statements, the State requested the court find defendant in contempt under Rule 1:10-1 for his tardiness and absence during jury selection. The court held a summary contempt hearing that afternoon and, after finding defendant's excuses to be incredulous and that he willfully disrupted the proceedings, adjudicated him in contempt. The court remanded him to custody for the remainder of the trial.
At trial, the owner, his wife, Detective Perrota, and a police captain were the only witnesses. During Perrota's testimony, the prosecutor asked how he knew "who to make the complaint against." Perrota responded, "[W]hen the two victims came in, they brought in paperwork. They Googled [defendant's] name . . . and had pictures of him showing that he's . . . been arrested before." Defendant objected and the court struck that portion of Perrota's testimony. Unsatisfied with the court's remedy, defendant moved for a mistrial, arguing the testimony had "tainted the whole proceeding" and that a curative instruction would not suffice to cure the prejudice caused by the reference to defendant's prior arrest. The court instructed the jurors that the "testimony was improper . . . [and] not part of the record" and they "shall not consider that stricken testimony for any purpose," and inquired of each juror whether they would "have any difficulty in following [the court's] instruction." After each juror responded they would follow the court's instruction, the court denied defendant's motion.
The following day, counsel presented closing arguments and the court charged the jury. The jury returned a verdict that afternoon, finding defendant guilty of impersonating an officer. After the jury was excused, the court sentenced defendant to "time-served . . . and minimum fines," totaling $125, for contempt. The court did not enter an order or judgment reflecting the contempt adjudication or fine.
At the sentencing hearing on defendant's conviction for impersonating an officer, the court found no applicable mitigating factors and applied aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9). "[C]learly convinced that the aggravating factors substantially outweigh[ed] the non-existing mitigating factors," the court sentenced defendant to an eighteen-month term of imprisonment.
This appeal followed, and we denied defendant's motion for accelerated consideration thereof.
II.
On appeal, defendant presents the following arguments in his brief by counsel:
POINT IHe presents the following additional arguments in a supplemental pro se brief:
THE DEFENDANT WAS PREJUDICED BY GRATUITOUS TESTIMONY THAT HE HAD BEEN PREVIOUSLY ARRESTED, AND THE REMEDIAL EFFORTS UNDERTAKEN BY THE COURT WERE INSUFFICIENT, NECESSITATING REVERSAL.
POINT II
THE TRIAL COURT ERRED IN REFUSING TO DISMISS A TAINTED POOL OF PROSPECTIVE JURORS, AND INSUFFICIENTLY QUESTIONED THOSE JURORS CONCERNING THE TAINT, NECESSITATING REVERSAL.
POINT III
THE TRIAL COURT'S CHARGE TO THE JURY WAS UNBALANCED BECAUSE IT SUGGESTED GUILT, NECESSITATING REVERSAL.
POINT IV
THE ADJUDICATION OF CONTEMPT MUST BE VACATED BECAUSE IT IS FATALLY DEFECTIVE PROCEDURALLY. (NOT RAISED BELOW)
POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
POINT III
THE COURT FAILED TO CONDUCT A LAMBERT HEARING, AND ORDER A PSYCHIATRIC EXAM OF THE APPELLANT. A NEW TRIAL IS REQUIRED AS A MATTER OF LAW.
POINT IV
THE ORDER DENYING AN ACCELLERATED [sic] SHOULD BE VACATED AND THE MATTER HEARD WITHOUT DELAY.
The arguments in Points I and II of defendant's supplemental pro se brief correspond with those presented in Points I and IV, respectively, of counsel's brief.
State v. Lambert, 275 N.J. Super. 125 (App. Div. 1994).
We have considered each of defendant's arguments and address them serially and in greater detail below.
A.
We begin with defendant's contention that the court erred in denying his motion for a mistrial after Perrota's reference to defendant's prior arrest. He urges that "no remedial efforts could have sufficed" to overcome the prejudice caused by the testimony because "the issue in the case [was] not identity, but rather the nature of the defendant's actions" and whether they "constitute[d] a crime." He further argues that, even if a sufficiently specific instruction could have cured the prejudice, the court did not give such an instruction, as it "failed to advise the jury that it was not permitted to use the testimony to conclude that the defendant was a criminal, and according[ly] must be guilty in this instance."
Defendant maintains that the court's error was compounded by its phrasing of the question asked of jurors because it failed to ensure they understood the reason it must be disregarded, and by the State's introduction of the search results referenced by Perrota because the jury almost certainly "concluded the purported existence of a 'Google printout' concerning the defendant was further evidence of [his] prior bad acts."
When defendant objected to Perrota's statement at trial, neither the State nor the trial court disputed that the testimony was improper. Rather, the State argued the prejudice could be overcome by "a very strong curative . . . instruction." The court denied defendant's request for a mistrial and instructed the jurors as follows:
You have heard testimony to the effect that the defendant . . . has been arrested before . . . . That testimony was improper. And this court has ordered that it be stricken form the record. That testimony is not part of the record in this case. You shall not consider that stricken testimony for any purpose during this trial.The court then asked each juror individually, "Would you have any difficulty following that instruction?" The jurors all replied they would not.
N.J.R.E. 404(b) prohibits "evidence of other crimes, wrongs, or acts . . . [when used] to prove the disposition of a person in order to show that such person acted in conformity therewith." "[S]uch evidence creates the strong potential for prejudice because of its natural 'tendency to demonstrate a criminal predisposition,'" as it has the potential to "indelibly brand the defendant as a bad person and blind the jury from a careful consideration of the elements of the charged offense." State v. Blakney, 189 N.J. 88, 93 (2006) (quoting State v. G.S., 145 N.J. 460, 468 (1996)).
When other-crimes evidence is revealed to the jury, a curative instruction may remedy the potential prejudice; however, "for an instruction to pass muster in such circumstances, it must be firm, clear, and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). It must identify the particular testimony or evidence it is meant to address, see id. at 136-37, and "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. Winder, 200 N.J. 231, 255 (2009) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). If the improper testimony or evidence is prejudicial and a curative instruction is insufficient to cure, a mistrial is necessary, though such an extreme remedy is to be used "only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)).
"Whether testimony . . . is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Ibid. (quoting State v. Winter, 96 N.J. 640, 647 (1984)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)).
We conclude that the court's instruction here was sufficient to overcome any prejudice caused by the reference to defendant's prior arrest. It was given to the jury immediately after the improper testimony, identified the testimony to which it was addressed, and made clear to the jurors that the testimony was improper and was not to consider "for any purpose" — an instruction we presume they followed. See Winder, supra, 200 N.J. at 255-56; Vallejo, supra, 198 N.J. at 136-37.
To the extent defendant argues that the prejudice caused by the reference to his prior arrest was exacerbated by the earlier introduction of the "Google printout" mentioned by Perrota, we note that the introduction of the document during the owner's testimony did not coincide with any reference to defendant's criminal history, and that the document was never admitted into evidence or seen by the jury.
We discern no abuse of discretion in the court's denial of defendant's motion for a mistrial on these grounds. See Yough, supra, 208 N.J. at 397; Winder, supra, 200 N.J. at 256.
B.
We turn next to defendant's contention that the court erred in denying his motions for a mistrial and the convening of a new jury pool after prospective jurors were exposed to improper discussion of the case during jury selection. In support, he maintains that, although the veniremen who reported the improprieties told the court that the parties to the discussions were no longer on the panel, the panel was already tainted and there was no way to be sure those involved had been dismissed.
We review the disposition of a motion for a mistrial for an abuse of discretion. State v. R.D., 169 N.J. 551, 559 (2001). "Application of that standard respects the trial court's unique perspective. We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury." Id. at 559-60.
"A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). That right "includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." R.D., supra, 169 N.J. at 557. When there has been an allegation of outside influence, the court has an independent duty "to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558. "Although the court should not simply accept the juror's word that no extraneous information was imparted to the others, the court's own thorough inquiry of the juror should answer the question whether additional voir dire is necessary to assure that impermissible tainting of the other jurors did not occur." Id. at 561.
Whether the trial court's inquiry requires questioning of the entire jury panel is left to the trial court's discretion. Id. at 559-60. Even if the court determines a juror "has been exposed to outside influence," "[a] new trial . . . is not necessary in every instance." Id. at 559.
Ultimately, the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings.
[Ibid.]
"[T]he test for determining whether a new trial will be granted because [of juror misconduct] or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs." State v. Jenkins, 182 N.J. 112, 131 (2004) (second alteration in original) (emphasis removed) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). Thus, a new trial is required where the irregularity has the capacity to influence the outcome of the trial; a showing of actual prejudice is not required. See R.D., supra, 169 N.J. at 558. Moreover, "it is presumed the irregularity had the capacity to influence, 'unless it has affirmatively been shown [by the State that] it does not.'" State v. Wormley, 305 N.J. Super. 57, 69 (App. Div. 1997) (alteration in original) (quoting State v. Grant, 254 N.J. Super. 571, 588 (App. Div. 1992)), certif. denied, 154 N.J. 607 (1998). Applying these principles, we are unpersuaded by defendant's contentions, and conclude that the trial court did not abuse its discretion in denying his motions for a mistrial and the convening of a new jury pool. When the improper conversations were brought to the court's attention, it confirmed that the parties to those conversations were no longer in the jury pool, and thereafter asked prospective jurors whether they had overheard those conversations and, for those who answered affirmatively, whether their ability to remain impartial had been compromised. With the exception of Carol, each potential juror who overheard the improper comments assured the court that they could remain impartial. Moreover, of those who overheard such comments, only Eric served on the jury, and the comment he overheard — that another venireman had tried to search for information about "somebody" in the case, to no avail — was not one that had the capacity to influence the outcome of the trial.
To the extent defendant now complains that Carol was not asked if she could remain impartial after bringing the improper conversations to the court's attention, we note that defendant did not object to the court's failure to do so at the time and, as such, our review is only for plain error. See R. 2:10-2. Given the candor displayed by Carol in returning to disclose the conversations she overheard, that the court had assured itself of her impartiality just prior to her disclosure, that Carol was not a participant in the improper conversations, and that she was not a member of the empaneled jury, we conclude that any error in the court's failure to ask Carol if she could remain impartial did not constitute plain error.
C.
Defendant next contends, for the first time on appeal, that he is entitled to a new trial because the court's final charge to the jury was misleading and suggested his guilt. Specifically, he argues the court's instructions regarding the elements of the charged offense "conveyed to the jury an assumption that the statements which had allegedly been made by the defendant in fact had been made," thereby "assum[ing] the central contested issue of the case: whether the defendant actually . . . represent[ed]" himself as a law enforcement officer. Specifically, defendant draws our attention to the following language:
The first element that the State must prove beyond a reasonable doubt is that
[defendant] pretended to hold a position as an officer, member, employee or agent of any organization or association of law enforcement officers. Here the State contends that [defendant] pretended to hold a position as an Essex County Sheriff's Officer.
The second element that the State must prove beyond a reasonable doubt is that [defendant]'s representation that he held a position as an Essex County Sheriff's Officer was false . . . .
The third element that the State must prove beyond a reasonable doubt is — is that when [defendant] made this representation, he knew that the representation was false.
. . . .
The fourth and final element that the State must prove beyond a reasonable doubt is that when [defendant] made that representation, his purpose was to induce another to submit to such pretended official authority or otherwise act in reliance upon that pretense.
Defendant concedes the court's instruction "conform[s] substantively with the pertinent passages of the Model Jury Charge." The State argues that, when read in the context of the jury charge as a whole, the language challenged by defendant was not misleading or prejudicial.
When reviewing a jury charge, we view the alleged error in the context "of the entire charge, not in isolation." State v. Nero, 195 N.J. 397, 407 (2008) (citation omitted). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). Furthermore, where, as here, a defendant does not object to the charge, we will disregard any error unless it constitutes plain error. R. 2:10-2.
"'Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial.' The charge must provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Galicia, 210 N.J. 364, 386 (2012) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)). "The most critical part of any jury instruction is an explanation of the [applicable] law," which, in a criminal trial, "includes an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt." State v. Walker, 322 N.J. Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999). "An erroneous jury charge 'when the subject matter is fundamental and essential or is substantially material' is almost always considered prejudicial," State v. Maloney, 216 N.J. 91, 104-05 (2013) (quoting State v. Green, 86 N.J. 281, 291 (1981)), and are "'poor candidates for rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)); see also State v. Adams, 194 N.J. 186, 207 (2008).
Model jury charges are a valuable resource and may guide a court's instructions to the jury. See Concepcion, supra, 111 N.J. at 379. However, a jury charge must be tailored to the facts when its statement of the law "divorced from the facts, [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). "When a jury instruction follows the model jury charge, although not determinative, 'it is a persuasive argument in favor of the charge as delivered.'" State v. Whitaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000)), aff'd, 200 N.J. 444 (2009).
Here, defendant did not find the language so clearly prejudicial as to object at trial, and the court's charge to the jury regarding the elements of impersonating an officer mirrored the model jury charges, see Model Jury Charge (Criminal), "Impersonating a Law Enforcement Officer" (2004), both of which strongly suggest the jury charge was proper. See Whitaker, supra, 402 N.J. Super. at 513-14; Singleton, supra, 211 N.J. at 182. While the language relied upon by defendant, when read in isolation, arguably appears to assume certain facts — namely, that he represented himself as a sheriff's officer — the court emphasized the State's burden to prove each element beyond a reasonable doubt several times throughout the charge, including directly before and after the detailed explanation of the elements challenged by defendant. Moreover, the court's brief outline of the elements, which immediately preceded the challenged language, made clear the State was required to prove beyond a reasonable doubt "[t]hat [defendant] pretended to hold a position as an officer."
We conclude that the jury charge did not improperly suggest defendant's guilt and that defendant is not entitled to a new trial on these grounds.
D.
Defendant next contends that his contempt adjudication must be vacated because the court did not enter a judgment or order of contempt. He argues that our decision in State v. Quintana, 270 N.J. Super. 676 (App. Div. 1994), "establishes that a trial court's failure to comply with the requirement of [Rule] 1:10-1 that a separate order of contempt be entered is fatal to a contempt finding." In his supplemental pro se brief, defendant further argues that Quintana requires that the contumacious conduct occur within the courtroom and, accordingly, that his absence from court did not constitute contempt in the presence of the court.
The State counters, arguing that Rule 1:10-1 does not demand entry of a written order and that the Rule's certification requirement was satisfied by the court's recitation on the record of defendant's offending conduct. The State also disputes defendant's interpretation of Quintana, and suggests our decision was concerned more with whether the summary contempt conviction was substantively proper and with whether the defendant received proper notice of the proceeding he was held in contempt for missing, than with whether the trial court entered a separate order reflecting the contempt adjudication.
We review summary contempt adjudications de novo. In re Lynch, 369 N.J. Super. 93, 99 (App. Div. 2004); see also R. 2:10-4. Our review of the law and the circumstances surrounding defendant's contempt adjudication leads us to conclude that it was procedurally defective, requiring reversal.
While "[t]he power of our courts to punish for contempt is long established," it is "an extraordinary power, to be exercised sparingly against those whose conduct 'has the capacity to undermine the court's authority and to interfere with or obstruct the orderly administration of justice.'" Amoresano v. Laufgas, 171 N.J. 532, 549-50 (2002) (quoting In re Daniels, 118 N.J. 51, 61, cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990)). As, "in effect, . . . [e]very contempt is criminal or quasi-criminal," Lynch, supra, 369 N.J. Super. at 97, it can be adjudicated by summary proceeding only if "instituted . . . by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious," and with proper notice to the person charged. R. 1:10-2(a).
However, Rule 1:10-1 provides a "narrow exception to [these] due-process requirements" for contumacious conduct occurring in the presence of the court. In re Lynch, supra, 369 N.J. Super. at 99, 101 (citation omitted). The Rule provides, in pertinent part:
A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:
(a) the conduct has obstructed, or if continued would obstruct, the proceeding;
(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;
(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;
(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and
(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.
The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious.
[R. 1:10-1.]
A direct contempt adjudication, and any resulting sentence imposed therefor, cannot stand where the court has failed to enter a separate order of contempt or to accompany that order with the certification required by Rule 1:10-1. See In re Duane, Morris & Heckscher LLP, 315 N.J. Super. 304, 313 (App. Div. 1998) ("[A]n adjudication without the required recitation and certification is fatally defective." (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 1:10-1 (1998))); Quintana, supra, 270 N.J. Super. at 682 (concluding direct contempt adjudication was defective because "[t]here was no separate order adjudicating the contempt and no written certification by the judge of the facts constituting the elements of the adjudicated contempt," even though adjudication and fine imposed were referenced in the judgment of conviction for the offense for which the defendant was before the court). To allow otherwise not only limits the contemnor's ability to challenge his adjudication on appeal, but also relegates him to an inscrutable and untenable no-man's land where it is unclear whether the "quasi-criminal" adjudication, Lynch, supra, 369 N.J. Super. at 97, exists at all.
Ordinarily, the absence of an order or judgment would bar defendant's appeal for lack of jurisdiction. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); R. 2:2-3. However, we "opt[] to overlook technical insufficiencies" and proceed even in the absence of an appealable order. See State v. Benjamin, 442 N.J. Super. 258, 262, 264 (App. Div. 2015), certif. granted, 224 N.J. 119 (2016).
As defendant's contempt adjudication was not memorialized anywhere but in the transcript of the underlying proceeding, and there was no separate order or written certification, it was fatally defective and is therefore reversed.
We also note the contempt adjudication itself should have been adjudicated in accordance with the due process demands of Rule 1:10-2, not, as it was, under Rule 1:10-1, as the charge was premised on defendant's tardiness and failure to appear and there was "some evidence" of the validity of defendant's explanations — specifically, that he was late and failed to appear due to a plumbing emergency and issues arising from his psychiatric medications. Duane, Morris & Heckscher, supra, 315 N.J. Super. at 313 (quoting In re Yengo, 84 N.J. 111, 127 (1980), cert. denied, 449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1981)); see also Lynch, supra, 369 N.J. Super. at 101; Quintana, supra, 270 N.J. Super. at 685.
E.
Defendant next contends the court's sentence is excessive, and was the result of an overvaluation of aggravating factors and failure to find applicable mitigating factors, and improper consideration of defendant's denial of guilt and refusal to plead guilty. In support, he argues the court gave excessive weight to aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), six, N.J.S.A. 2C:44-1(a)(6) (extent and severity of prior criminal record), and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence), and erred in basing its finding of all three factors on his criminal record. He further argues the court erred in failing to consider his mental illness and substance abuse as mitigating factors, as they were clearly indicated in the presentence report and by his behavior before the court. Ultimately, defendant maintains that a proper weighing and balancing of the sentencing factors leads to the conclusion that a mid-range sentence of nine months was more appropriate, and that his sentence should be reduced accordingly. The State counters, arguing the court did not rely solely on defendant's criminal record in finding aggravating factors three, six, and nine, and challenging defendant's interpretation of the court's statements regarding his refusal to acknowledge guilt.
We review criminal sentences for a "clear abuse of discretion." State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found . . . were not based upon competent and credible evidence . . . ; or (3) 'the application of the guidelines . . . makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65).
The court's obligations when sentencing a defendant are clear. A sentencing court must determine which, if any, aggravating and mitigating factors apply, and balance those found applicable. Id. at 72-73; see also N.J.S.A. 2C:44-1. Once the court has balanced the applicable factors, it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). "At the time sentence is imposed the judge [must] state reasons for imposing such sentence . . . [and] the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g).
Defendant argues the court erred in failing to apply mitigating factors, but he did not identify the mitigating factors he wished the court to consider at sentencing, nor does he do so now. To the extent he contends the court erred by not considering his mental illness, drug addiction, and poor physical health as mitigating factors, it can be inferred from the extensive discussion of those matters during sentencing that the court did consider them, and determined they did not warrant application of any mitigating factors. See Bieniek, supra, 200 N.J. at 609 ("It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision.").
As to the court's finding of aggravating factors three, six, and nine, to be sure, the court did not state the findings in support of its application of each factor specifically. However, it found them applicable after reciting defendant's "longstanding and substantial criminal record" and noting that his most recent incarceration was for violating probation, which the court found "preclud[ed] a finding that he's likely to respond affirmatively to non-custodial treatment." Thus, while factors three, six, and nine "should not be found simply by confirming the existence of prior convictions," Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-1 (2016) (citing State v. Thomas, 188 N.J. 137, 153 (2006)), defendant's extensive criminal history and failure to conform his conduct to the law over the course of several decades despite numerous terms of incarceration and probation, provided ample support for the court's finding that he was likely to reoffend and needed to be deterred from doing so. See N.J.S.A. 2C:44-1(a)(3), (9). With respect to factor six — "[t]he extent of the defendants prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6) — defendant's twenty prior convictions for a wide range of offenses provided more-than-ample support for the court's application of that factor.
At sentencing, the court noted defendant had forty-one arrests, fourteen prior convictions for indictable offenses arising out of eight separate indictments, six prior convictions for disorderly person's offenses, and at least one probation violation.
Accordingly, we conclude that the judge's stated findings regarding the applicability of aggravating and mitigating factors were "based upon competent credible evidence in the record," and that the sentence imposed neither falls outside the permissible range for impersonating an officer, nor "shocks the judicial conscience," Roth, supra, 95 N.J. at 364, and, therefore, that the court did not abuse its discretion by imposing an eighteen-month term of incarceration.
F.
Defendant contends the court was obligated to suspend the proceedings and order a competency hearing to determine his fitness to proceed and the possibility of a diminished capacity defense because his "bizarre and disruptive behavior" before the court raised questions regarding his mental health. He points to the decompensation he alleges he experienced during his incarceration and, relying on Rule 2:10-5, "requests invocation of this Courts [sic] inherent jurisdiction, and seeks an Order granting his applications presented to [the trial judge] for transfer to the East Orange General Hospital, in-patient mental health unit, . . . for treatment of his mental disease and past [chemical] addiction."
Our review of the trial court's decision not to order a competency hearing "is a strict one." State v. Harris, 181 N.J. 391, 458 (2004) (quoting State v. Spivey, 65 N.J. 21, 37 (1974)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The decision "will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial," that is, that there was a "bona fide doubt as to [his] competence to stand trial." Ibid. (alteration in original) (emphasis omitted) (first quoting State v. Lucas, 30 N.J. 37, 73-74 (1959); then quoting Spivey, supra, 65 N.J. at 37). Where the defendant does not raise the issue of his competence or the possibility of an insanity defense at trial, the alleged error requires a new trial only if it constitutes plain error. See R. 2:10-2.
Once "a bona fide doubt [is] raised as to defendant's competence to stand trial," the court must hold a competency hearing and "adjourn[] the trial to enable defendant to be evaluated by a psychiatrist to determine (1) whether he [is] competent to stand trial and (2) if so, whether there [is] a valid basis to raise a diminished capacity defense." Lambert, supra, 275 N.J. Super. at 131; see also State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). "There are . . . no fixed or immutable signs which invariably indicate the need for further inquiry to determine [a defendant's] fitness to proceed." Lambert, supra, 275 N.J. Super. at 129 (quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975)). However, evidence that a defendant engaged in "irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant" factors to be considered. Ibid. (quoting Drope, supra, 420 U.S. at 180, 95 S. Ct. at 908, 43 L. Ed. 2d at 118).
The test for determining whether a defendant is competent to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding[,] and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960). New Jersey has codified the test for determining competency, which requires that a defendant "appreciate his presence in relation to time, place and things," N.J.S.A. 2C:4-4(b)(1), and understand his presence in a courtroom facing criminal charges; the role of the judge, prosecutor, and defense attorney; his rights and the consequences of waiving them; and his ability to participate in his own defense. N.J.S.A. 2C:4-4(b)(2).
Specifically, a defendant's "elementary mental processes" must be such that he understands:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense.
[N.J.S.A. 2C:4-4(b)(2).]
We conclude that defendant failed to raise a bona fide doubt at trial about his competency. While defendant brought to the court's attention that he had been diagnosed with and was taking medication for certain specified and unspecified mental illnesses, there was no indication that these had any effect on his competence to stand trial or gave rise to the possibility of an insanity defense. It is clear from the record that defendant understood his surroundings, the nature of the proceedings, and his obligations therein. To the extent he now relies upon his "bizarre and disruptive behavior" as establishing a bona fide doubt as to his competence, he does not direct our attention to any specific conduct that raises a legitimate question as to his ability to participate in his defense, and our independent review has not revealed any such conduct. Moreover, the behavior of the defendant in Harris was far more bizarre and disruptive than defendant's tardiness, absence, and occasional interjection, and the Court nevertheless found it insufficient to raise a bona fide doubt as to that defendant's competence. See Harris, supra, 181 N.J. at 452-57.
In support of his contention that there was a bona fide doubt as to his competence, defendant notes the court "inquir[ed] as to [his] mental health," asking, "What medications is [defendant] under right now?" However, the court's inquiry was in response to his claim that he was late to court because he had to go home to pick up his medication, and was not prompted by any bizarre behavior by defendant.
In Harris, the Court cited several instances of the defendant's offending behavior, including: "exhibiting his middle finger," refusing to come to court out of fear of the corrections officers, "spitting all over the place," including on the judge's bench, accusing the judge of being racist and "doing the devil's work," and responding to the court's order to sit down with a comment about his genitals, among other more mundane examples. Harris, supra, 181 N.J. at 452, 454-55. --------
Without more than defendant's mental illness and mildly-disruptive conduct, we conclude his conduct did not give rise to a bona fide doubt as to his fitness to proceed, or to the possibility of a valid insanity defense, and, therefore, that the court did not err in failing to order a competency hearing.
G.
Defendant finally argues this court erred in denying his motion for accelerated consideration of his appeal. Appeals from our interlocutory orders are not, however, cannot be brought before this court. See R. 2:2-2(b); R. 2:2-3.
III.
For the reasons set forth above, we affirm defendant's conviction and sentence, but reverse his summary adjudication of contempt. The matter is remanded for entry of an order vacating the entry of that determination. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION