(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Stern's written opinion below.)
Argued November 18, 1997 -- Decided December 3, 1997
PER CURIAM
The issue in this case is whether defendant waived his right to be present at trial.
The Appellate Division opinion recites the relevant history. Defendant was in court on March 13,
1995 and notified that his trial would be June 12, 1995. Defense counsel certified that during the week prior
to June 5, 1995, the trial judge rescheduled defendant's trial from June 12 to June 5. Defense counsel,
thinking that defendant was still incarcerated at the Union County jail, attempted to visit him on Friday, June
2. He learned that defendant was not there. Counsel informed the trial judge and asked his secretary to
find out if defendant was incarcerated and, if not, to contact him by telephone and inform him of the new
date. The secretary certified that she learned defendant was not incarcerated. She was given two phone
numbers by the Public Defender's Office to try to reach him. A male answered the phone at one number
and identified himself as defendant. The secretary identified herself and advised defendant to appear in
court ready for trial on Monday, June 5, and not June 12.
Defendant did not appear on June 5. The trial court gave defendant's counsel an opportunity to
locate him. Counsel spoke to defendant's mother, who told him defendant no longer lived there and was
someplace in Newark. The trial court, finding that defendant had received actual notice of the accelerated
trial date from his attorney's office, ruled that defendant had waived his right to be present and determined
to try defendant in absentia. Defendant was convicted of burglary and attempted theft, and sentenced to two
consecutive five-year terms.
On appeal, the Appellate Division ruled that the trial court erred in trying defendant in absentia. It
cited to R. 3:16(b), which states that a defendant can be found to have waived his right to be present at trial
if he fails to appear after receiving “actual notice in court” of the date. The Appellate Division noted that
defendant received notice of the accelerated trial date, June 5, from his attorney's secretary, not while in
court. The only date for which defendant received notice while in court was the June 12 date. The
Appellate Division further pointed out that defendant was not advised by the court of the possibility of the
trial date being accelerated. The Appellate Division held that, absent such notice in court, defendant's
failure to appear for the accelerated date does not constitute a knowing and voluntary waiver of his right to
appear at trial.
The Appellate Division distinguished other cases finding a waiver for non-appearance. It noted that
the defendants in those cases had failed to appear on the original trial date or on a subsequent date fixed at
that time.
The Appellate Division remanded the matter to the Law Division for a new trial.
The Supreme Court granted the State's petition for certification.
HELD: A defendant cannot be tried in absentia after failing to respond to a call from his attorney to appear
for trial on a date earlier than the trial date for which the defendant received notice while in court unless
defendant had also been advised by the court to be prepared to respond to an earlier call from his attorney.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in the PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
57 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SHAWN BERNARD MAHONE,
Defendant-Respondent.
Argued November 18, 1997 -- Decided December 3, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
297 N.J. Super. 524 (1997).
Steven J. Kaflowitz, Assistant Prosecutor,
argued the cause for appellant (Thomas V.
Manahan, Union County Prosecutor, attorney).
Cecelia Urban, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney;
Ms. Urban and Jeannie K. Phillips, Designated
Counsel, on the brief).
Christine M. D'Elia, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
PER CURIAM
The judgment is affirmed, substantially for the reasons
expressed in Judge Stern's opinion of the Appellate Division,
reported at
297 N.J. Super. 524 (1997).
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this opinion.
NO. A-57 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SHAWN BERNARD MAHONE,
Defendant-Respondent.
DECIDED December 3, 1997
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY