State v. Tedesco, A-50 September Term 2012; Supreme Court; opinion by Rabner, J.; decided and approved for publication June 24, 2013. On appeal from the Appellate Division. [Sat below: Judges +, + and + in the Appellate Division; Judge Conforti in the Law Division.] DDS No. 14-1-0404 [30 pp.]

Defendant Giuseppe Tedesco was convicted of murder, unlawful possession of a handgun and possession of a handgun for an unlawful purpose. He has pending charges for obstruction of the administration of law, aggravated assault and terroristic threats arising out of his conduct in the courtroom after the verdict.

Tedesco signed a written waiver voluntarily waiving his appearance at sentencing. Michele Ruggieri, the victim’s mother, moved to compel his presence. The state later joined the motion.

The trial court concluded that defendant did not have a right to be absent from sentencing and ordered him to appear. The Appellate Division affirmed.

Defendant contends that the victim lacks standing, that Rule 3:21-4(b) vests within a defendant the power to decide if he will be present at sentencing, and that his absence would eliminate the extra expense and delay of transporting him from prison to the courthouse and the need for significant security measures.

Held: A defendant does not have a unilateral right to be absent from his sentencing hearing. Trial judges have the discretion to decide whether to accept a defendant’s waiver. In attempting to justify a waiver, a defendant must advance specific reasons that demonstrate special circumstances. Judges must consider various concerns, including the interests of the public, the defendant, the victims and the state.

Devoting little time to defendant’s standing argument, the court says no one can question the state’s standing and the decedent’s mother certainly qualifies as a victim under the law. The victim’s arguments should be heard and evaluated, if not as a party with standing, then as an amicus under Rule 1:13-9.

The court then observes that the Sixth Amendment to the federal Constitution and Article I, paragraph 10 of the state constitution guarantee a defendant’s right to be present at trial. Rule 3:16(b) declares that the defendant “shall be present at every stage of the trial … and at the imposition of sentence, unless otherwise provided by Rule.” Rule 3:21-4(b) states that “sentence shall not be imposed unless the defendant is present or has filed a written waiver of the right to be present.”

Thus, says the court, it is clear that defendants have the right to be present at sentencing. Nothing in the language of the rules gives a defendant an absolute right to be absent. Nor does the history underlying the rule support defendant’s position. The rule simply gives defendants the ability to file a written waiver with the court. Whether to accept that waiver is a decision for the trial judge.

That approach is consistent with well-settled law that the ability to waive a constitutional right does not ordinarily carry with it the right to insist on the opposite of that right.

The court says that in deciding whether to grant a defendant’s request to waive his presence at sentencing, a trial judge should be guided by a number of relevant factors. Drawing on State v. Dunne, 124 N.J. 303 (1991), the court says the trial court should consider whether a defendant has voluntarily, knowingly and competently waived the right to appear at sentencing and whether the waiver is tendered in good faith. Other factors must also be considered and balanced.

The public has an interest in the effective and fair administration of justice. That calls for resolving matters fairly, openly and expeditiously, in the presence of all parties and counsel, and in a way that promotes respect for the justice system.

The public also has an interest in holding convicted defendants publicly accountable for their actions. The public and the court system share a concern for conducting thorough proceedings that minimize the risk of error and lead to informed results. Having defendants present at sentencing to address the judge and to respond to or assist counsel in answering arguments from the state or statements by any victims helps to achieve those aims. A solemn sentencing proceeding with all parties present also fosters the appearance of justice.

Courts must also consider a defendant’s interest in being absent from sentencing. A defendants must advance specific reasons that show special circumstances.

The victims’ interests also must be considered. Beginning with the passage of the Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-34 to -38, through adoption of the Victim’s Rights Amendment to the state constitution, N.J. Const. art. I, ¶ 22, there has been a steady movement to recognize and enhance the rights of crime victims. Their statements at sentencing will carry more meaning if they are heard by the defendant.

Finally, courts should consider the state’s interest in deterring others.

Balancing these factors requires a fact-specific analysis in each case. Sentencing judges should provide a statement of reasons when they rule on a defendant’s waiver request.

The court says defendant’s reasons for wanting to be absent from sentencing are neither special nor persuasive. Transportation is not a legitimate concern. The court is in the best position to address any safety concerns and ensure decorum. The seriousness of the offense weighs in favor of Tedesco’s appearance, to promote public accountability for his actions and general deterrence. The remaining factors also militate in favor of his appearance.

Finally, the court says it is confident that trial judges will maintain proper decorum. Unable to envision a set of circumstances when shackling and gagging the defendant would be the wisest course, the court says that if there is no possible way to restore order and contain a defendant’s behavior, a judge can direct that he be taken to a holding cell outfitted with a video or audio feed that will relay the proceedings to him remotely.

Justices LaVecchia, Albin, Hoens and Patterson and Judges Rodriguez and Cuff, both temporarily assigned, join in Chief Justice Rabner‘s opinion.

For appellant — Anthony J. Iacullo (Iacullo Martino; Iacullo and Joshua H. Reinitz on the brief). For respondents: State — Seana Pappas, Assistant Prosecutor (David J. Weaver, Sussex County Prosecutor; Gregory R. Mueller, First Assistant Prosecutor, on the brief); Michele Ruggieri — Richard D. Pompelio (New Jersey Crime Victims’ Law Center). For amici curiae: Association of Criminal Defense Lawyers of New Jersey — Jeffrey S. Mandel (Cutolo Mandel; Mandel and Andrew Stein on the brief); American Civil Liberties Union of New Jersey Foundation — Alexander R. Shalom (Edward L. Barocas, Legal Director); Attorney General — Carol Henderson, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General).