The state Supreme Court heard arguments Monday over whether a criminal defendant who has waived his right to be present at sentencing can be compelled by the victim to appear.
The court heard the case — State v. Tedesco, A-50-12 — on an expedited schedule because its decision will have a direct bearing on a pending case.
Giuseppe Tedesco, 27, of Hopatcong, was convicted on Jan. 10 of first-degree murder of Alyssa Ruggieri, 22, after she rejected his romantic advances. Tedesco claimed self-defense, testifying that he and Ruggieri fell down a flight of stairs at her home while they struggled for his gun, causing it to go off.
During the course of the trial, there had been verbal confrontations between Tedesco and members of Ruggieri’s family.
Tedesco has waived presence at his sentencing, but Sussex County Superior Court Judge N. Peter Conforti ruled on March 14 that the New Jersey Crime Victim’s Bill of Rights supersedes his wishes. "The defendant does not have the right not to be here," Conforti said.
The Appellate Division affirmed, stating, "defendant may not use the waiver process to diminish in any way the victim’s well-recognized right to meaningfully participate in the criminal justice system."
Tedesco’s attorney, Anthony Iacullo, told the court that the right of a defendant to not appear at sentencing is clearly spelled out in R. 3:21-4(b), which says: "Sentence shall not be imposed unless the defendant is present or has filed a written waiver of the right to be present."
A judge may not choose to reject a knowing and written waiver, said Iacullo, of Nutley’s Iacullo Martino. The Crime Victim’s Bill of Rights, he said, permits the victim or the family to address the court, not the defendant directly.
Chief Justice Stuart Rabner asked whether the right to waive presence at sentencing is an absolute one.
"Upon filing of a written notice that is knowing and voluntary, he has a right that cannot be disturbed," Iacullo said.
Justice Anne Patterson asked why there had to be an absolute right.
"It’s his sentencing," Iacullo said. "It’s not an opportunity to disparage a defendant or to ridicule a defendant."
The Association of Criminal Defense Lawyers of New Jersey participated as amicus.
Jeffrey Mandel, representing the ACDL, said that the waiver rule did not appear to be absolute, but he urged that it be made so.
"We’re asking the court to make this an absolute right," said Mandel, of PinilisHalpern in Morristown. Deciding to not appear at sentencing is a "tremendous risk, but it’s his right," he said.
The American Civil Liberties Union of New Jersey also participated as amicus. Its lawyer, Alexander Shalom, argued that the rule gives Tedesco the right to not listen to the victim impact statement.
The Constitution could be amended, he said, to allow the victim or the victims’ family to speak directly to the defendant, but that is not the rule now.
"We have to live with the rules we have," Shalom said. "The victim’s family can address the court, not the defendant."
Assistant Sussex County Prosecutor Seana Pappas said the rules give the ultimate discretion to the judge.
"The rule does not give the defendant the power to unilaterally and solely absent himself," Pappas said.
Conforti, she said, balanced Tedesco’s rights against those of Ruggieri’s family and "properly denied defendant’s application."
Justice Barry Albin asked whether a judge has the authority to compel a defendant’s presence at trial, even if it means having the defendant shackled and gagged.
"It is a possibility under extreme circumstances," Pappas replied.
Patterson asked whether the defendant could be forced to attend if he or she was critically ill.
"That would be an abuse of discretion," Pappas said.
She argued that even though the victim or the victim’s family direct their comments to the court, they are also meant for the defendant.
"The words are to be directed to the judge, but I don’t think anyone doubts the defendant would hear them," she said.
"I do think we should be able to bind and gag them," said Pappas. "It’s not going to happen that often."
The New Jersey Crime Victims’ Law Center intervened on behalf of the Ruggieri family.
Executive Director Richard Pompelio said Ruggieri’s mother was not seeking to speak to Tedesco directly, but he sided with Pappas in saying Tedesco had no unilateral right to avoid appearing at sentencing.
"She wants to give an impact statement in the most traditional way … and have the defendant see her presence and hear her words," Pompelio said.
A defendant’s presence at sentencing, he said, "has never been an issue" until now.
Pompelio suggested that a defendant could be brought to court and, if the defendant begins to act in a disruptive manner, he or she could be moved to an adjacent room while the sentence is handed down.
"It’s a question of symbolism and of the respect of the judicial process," he said. "To allow Giuseppe Tedesco to take control of the system is wrong. He doesn’t make the rules."
Assistant Attorney General Carol Henderson said the Rules of Court only allow a defendant to waive his or her right to be present at trial, not sentencing.
"When you’re going to sentence someone, the person has to be there," she said. "The person has to know why they are there. And people want to see the punishment imposed."