RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3169-23
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION January 14, 2025 v. APPELLATE DIVISION
JESUS E. REYES-RODRIGUEZ,
Defendant-Appellant. ____________________________
Argued December 18, 2024 – Decided January 14, 2025
Before Judges Mayer, Rose and Puglisi.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 21-08-1000.
Robin Kay Lord (Law Offices of Robin Kay Lord, LLC) argued the cause for appellant.
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief).
The opinion of the court was delivered by
ROSE, J.A.D. In this interlocutory appeal, we consider the propriety of a bench warrant
issued by the Law Division following defendant Jesus E. Reyes-Rodriguez's
failure to appear in person for a pretrial conference, notwithstanding his virtual
appearance at this conference and nearly all prior court hearings. A non-citizen
of the United States and Mexican national, defendant was deported to his
homeland after he was indicted for third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a)(1), and fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-3(b).1 The motion court issued the bench warrant, at the State's
request, to serve as a detainer should defendant illegally reenter the United
States or if the State elected to extradite defendant from Mexico. The State,
however, acknowledged the Monmouth County Prosecutor's Office (MCPO)
was unlikely to authorize extradition on these third- and fourth-degree charges.
Before the motion court, defendant moved to vacate the warrant and
dismiss the indictment. Citing State v. Lopez-Carrera, 245 N.J. 596 (2021),
defendant argued his failure to appear in person was not willful. Rather,
defendant claimed his removal from the United States prevented his in-person
appearance and, in any event, Rule 3:9-1 does not require a defendant's physical
1 Defendant's two coworkers were charged with similar offenses in the remaining counts of the ten-count Monmouth County indictment. They are not parties to this appeal. A-3169-23 2 presence in court. Defendant also asserted the State could have sought from the
federal government "deferred action to delay [his] deportation . . . or an
administrative stay of removal." Thus, the State's failure to request this relief
from the federal authorities – or seek his extradition pursuant to our country's
treaty with Mexico – warranted dismissal of the indictment as the State
"forfeited its interest in the instant prosecution." Defendant also sought
dismissal of the indictment on speedy trial grounds. In the alternative, defendant
sought permission to appear at all court proceedings remotely from Mexico.
The motion court denied all requested relief. In a written statement of
reasons accompanying a March 7, 2024 order, the court rejected defendant's
reliance on Lopez-Carrera. The judge concluded state court judges are not
authorized "to detain defendants to thwart their removal." Nor was the court
persuaded the State was estopped from prosecuting the offenses charged in the
indictment or required to extradite defendant on these charges. Citing an
administrative order issued by our Supreme Court, Order: The Future of Court
Operations — Updates to In-Person and Virtual Court Events (Oct. 27, 2022)
[hereinafter Virtual Court Order], the court rejected defendant's alternate
application to appear remotely at all future proceedings. The court reasoned it
A-3169-23 3 was not empowered to enforce a probationary or custodial sentence if defendant
were convicted at trial or by guilty plea.
We thereafter denied defendant's motion for leave to appeal from the
March 7, 2024 order. State v. Reyes-Rodriguez, No. AM-0386-23 (App. Div.
Apr. 15, 2024). The Supreme Court granted defendant's ensuing motion for
leave to appeal from our order, and summarily remanded the matter for our
consideration on the merits. 257 N.J. 593 (2024).
Having considered the supplemental briefs and oral argument, we now
conclude the motion court mistakenly exercised its discretion by refusing to
permit defendant to appear remotely. We therefore reverse the March 7, 2024
order and remand for the court to permit defendant to participate remotely in all
court hearings, including trial, as he remains unable to lawfully reenter the
United States. In doing so, we reject defendant's arguments that the court
erroneously denied his motion to dismiss the indictment for lack of prosecution
and on speedy trial grounds. We therefore affirm in part, and reverse and
remand in part, for proceedings consistent with this opinion.
A-3169-23 4 I.
We summarize the pertinent facts and events from the limited record
provided on appeal.2 In February 2021, L.M. 3 reported to police that "sometime
in July 2020," defendant placed his hand in her shorts and "touch[ed] the side of
her vagina" in Red Bank. L.M. was seventeen years old at the time of the alleged
offense.
Defendant was charged by complaint-warrant with third-degree child
endangerment and fourth-degree criminal sexual contact. At the time of his
March 16, 2021 arrest, defendant was thirty-four years old with no prior criminal
record. Accordingly, Pretrial Services recommended defendant's release on his
own recognizance based on his public safety assessment (PSA) scores of "1" –
the lowest rung of the six-level ladder – for risk of failure to appear and risk of
new criminal activity. The State did not seek defendant's detention. See
N.J.S.A. 2A:162-18(a)(1).
2 Other than the September 5, 2023 bench warrant and the order, statement of reasons, and transcript of oral argument on defendant's present motions, the parties did not provide memorializing orders of the prior events or transcripts of those proceedings. See R. 2:5-4. These omissions do not hamper our review. 3 We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9); see also N.J.S.A. 2A:82-46.
A-3169-23 5 The next day, on March 17, 2021, the court released defendant on Level
III pretrial monitoring. 4 That same day, defendant was detained by the
Department of Homeland Security, Immigration and Customs Enforcement
(ICE) and charged as removable for unlawful entry into the United States under
the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537.
On August 27, 2021, defendant was indicted on the present charges. In
September 2021, an immigration judge ordered defendant removed to Mexico.
In her written decision, the judge discredited defendant's testimony, finding his
responses to questions about the present charges "evasive."
The same immigration judge later denied defendant's motions for a stay
and to reopen the removal proceedings. The judge considered the submission
of defendant's child's mother, who explained defendant "gets nervous when he
speaks and sometimes confuses his speech," and correspondence from a
healthcare facility confirming the child's mother contacted the facility about
"their daughter's sadness and anxiety over [defendant]'s detention." But the
judge determined defendant had not met the "heavy burden" of reopening his
4 The judge who issued the March 17, 2021 order was not the same judge who issued the order under review. A-3169-23 6 removal proceedings and concluded "[defendant]'s criminal charges constituted
a significant part of [her] determination."
Defendant retained his present attorney in September 2021. In November
2021, defendant filed an emergent motion to revoke his pretrial release to
prevent his removal. The State declined to join the motion, "request[] a
detainer," or extend a plea offer to a disorderly persons offense. Shortly
thereafter, defendant was deported to Mexico.
We glean from the record defendant appeared remotely for all but one
scheduled court hearing, commencing with his arraignment on December 14,
2021. Defendant applied for pretrial intervention (PTI) in January 2022, but the
State rejected his application. In July 2022, defendant appealed his PTI rejection
to the Law Division.
Thereafter, on November 14, 2022, a bench warrant was issued for
defendant's failure to appear at an unspecified conference. Apparently, that
same day, defense counsel withdrew defendant's motion to revoke his release.
In December 2022, defendant refiled his PTI appeal; the State filed
opposition; and on February 9, 2023 a second judge vacated the November 14,
2022 bench warrant. The judge's reasons for vacating the warrant are not
reflected in the record.
A-3169-23 7 In April 2023, the State again rejected defendant's PTI application.
Defendant appealed to the Law Division. On July 28, 2023, a third judge denied
defendant's PTI appeal.
On September 5, 2023, the present judge issued a bench warrant for
defendant's failure to appear at a "Discretionary Conference." The warrant
indicates defendant was deported to Mexico.
The following month, on October 4, 2023, defendant moved to vacate the
bench warrant and dismiss the indictment. After initial briefing and oral
argument, defendant filed a supplemental brief, which the court permitted "in
the interests of justice." The court afforded the State until February 19, 2024 to
file a responding brief, but the State declined to do so. The court's order and
decision followed on March 7, 2024.
II.
We first consider defendant's challenges to the court's denial of his motion
to dismiss the indictment. Ordinarily, an appellate court reviews a trial court's
decision on a motion to dismiss an indictment for abuse of discretion. See State
v. Saavedra, 222 N.J. 39, 55 (2015). "When the decision to dismiss relies on a
purely legal question, however, we review that determination de novo." State
A-3169-23 8 v. Twiggs, 233 N.J. 513, 532 (2018). Defendant's renewed claims on this appeal
invoke our de novo review.
We consider the dismissal of an indictment as "the last resort because the
public interest, the rights of victims[,] and the integrity of the criminal justice
system are at stake." State v. Williams, 441 N.J. Super. 266, 272 (App. Div.
2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004)).
Thus, a trial court should not dismiss an indictment "except 'on the clearest and
plainest ground.'" Ruffin, 371 N.J. Super. at 384 (quoting State v. Hogan, 336
N.J. Super. 319, 344 (App. Div. 2001)).
A.
Defendant maintains the State's inactions warrant dismissal of the
indictment. In particular, defendant faults the State for failing to: coordinate
with immigration authorities pursuant to the "Toolkit for Prosecutors"
promulgated by ICE; join his efforts to revoke his pretrial release; seek a
detainer prior to his removal; or extradite him on the charges after issuance of
the September 5, 2023 bench warrant. Because defendant's remote appearance
at all future court hearings will protect his right to a fair trial, we are not
persuaded dismissal of the indictment is the proper remedy here. See State v.
Clark, 347 N.J. Super. 497, 508 (App. Div. 2002) (recognizing dismissal of an
A-3169-23 9 indictment is a "drastic remedy" and "inappropriate where other judicial action
will protect a defendant's fair trial rights").
We begin with the trial court's inability to detain defendant prior to his
removal from the United States. The Criminal Justice Reform Act (CJRA),
N.J.S.A. 2A:162-15 to -26, authorizes the trial court to detain a defendant when
the State demonstrates no conditions of release "would reasonably assure the
eligible defendant's appearance in court when required, the protection of the
safety of any other person or the community, and that the eligible defendant will
not obstruct or attempt to obstruct the criminal justice process." N.J.S.A.
2A:162-18(a)(1). In the present matter, however, the State did not move to
detain defendant, who had no criminal history as reflected by his PSA scores.
In its responding brief on appeal, the State maintains our Supreme Court in
Lopez-Carrera held the CJRA prohibits a trial court from detaining a non-citizen
defendant solely to avoid deportation prior to trial.
Similar to the allegations in the present matter, the defendant in Lopez-
Carrera was charged with offenses relating to the attempted sexual assault of a
minor. 245 N.J. at 606. On the same day the charges were issued against Lopez-
Carrera, ICE lodged its detainer. Ibid.; see also 8 C.F.R. § 287.7(a) (explaining
an ICE detainer "advise[s] another law enforcement agency that [ICE] seeks
A-3169-23 10 custody of an alien presently in the custody of that agency, for the purpose of
arresting and removing the alien").
Also similar to the circumstances here, in view of Lopez-Carrera's low
PSA scores, Pretrial Services recommended release on his own recognizance
and the State did not move for detention. 245 N.J. at 607. Further, following
his release, Lopez-Carrera was immediately detained by ICE officials. Ibid.
Eight months after he was indicted, ICE informed the State that Lopez-
Carrera had exhausted his administrative appeals of his final removal order and
would be deported. Ibid. Unlike the present matter, however, the State moved
to revoke the defendant's pretrial release. Ibid. The trial court denied the motion
and Lopez-Carrera was deported. Id. at 608. We granted the State leave to
appeal, on an emergent basis, and summarily affirmed the trial court's order. Id.
at 607. The Court affirmed our order. Id. at 627.
The Court in Lopez-Carrera also considered the State's motion for leave
to appeal from two trial court orders releasing similarly-situated defendants in
the consolidated, companion cases, State v. Juan C. Molchor and State v. Jose
A. Rios. 245 N.J. at 603-06. Both defendants were charged with aggravated
assault and criminal mischief stemming from the same incident. Id. at 603.
Similar to Lopez-Carrera, Molchor and Rios had no prior convictions and low
A-3169-23 11 risk PSA scores. Id. at 603-04. The trial court detained Molchor and Rios based
only on their immigration status. Id. at 604. We reversed and remanded for
reconsideration, and the trial court released both defendants with conditions. Id.
at 606. We denied the State's emergent and ordinary applications for a stay.
Ibid. The Court granted the State leave to appeal and ultimately affirmed. Id.
at 606-07.
Pertinent to this appeal, in Lopez-Carrera, the Court analyzed the CJRA's
plain language, commencing with "the relevant text provid[ing] for detention
when no combination of conditions 'would reasonably assure the eligible
defendant's appearance in court when required.'" Id. at 613 (quoting N.J.S.A.
2A:162-18(a)(1)). Referencing dictionary definitions of "appearance," the
Court noted "[a] defendant's 'appearance in court' thus commonly refers to the
voluntary act of showing up." Id. at 614. The Court determined a defendant's
"appearance" refers to the defendant's voluntary conduct, not acts taken by a
third party, such as immigration officials. Id. at 617. Accordingly, the Court
held pretrial detention must be based on a defendant's voluntary behavior; not
solely on the possibility the non-citizen defendant may be removed from the
United States by immigration officials. Id. at 625. The Court concluded "a
person's immigration status alone cannot be dispositive." Ibid.
A-3169-23 12 The Court also addressed the interplay between the State and federal
officials, noting:
Federal law provides for coordination between federal prosecutors and immigration officials after a non-citizen is arrested. 18 U.S.C. § 3142(d). Our criminal justice system functions best when the State has an opportunity to present its proofs to try to enforce the law, when defendants who stand accused can defend themselves in court, and when victims and witnesses can be heard and treated with dignity and respect. We therefore encourage ICE to coordinate with State prosecutors and allow the criminal justice system to complete its work while charges are pending against non-citizens in state court.
[Id. at 603.]
The Court thus expressed its preference that ICE "refrain from deporting
defendants while they await trial" in state court. Id. at 627.
Against these legal principles, we reject defendant's argument that the
State forfeited its interest in prosecuting the offenses charged in the indictment.
Similar to the defendants in Lopez-Carrera, defendant's low PSA scores and lack
of criminal history favored release. Defendant's sole reason for seeking
revocation of his release was to thwart his removal from the United States.
Because a trial court is not authorized to detain a defendant based only on
immigration status, we are satisfied the motion court correctly found the State's
refusal to join defendant's motion to revoke his release or failure to seek a
A-3169-23 13 detainer prior to his deportation did not warrant dismissal of the indictment. See
id. at 625. Indeed, our Supreme Court encouraged – but did not mandate – the
State work with ICE officials to allow State prosecutions to resolve the pending
charges. Id. at 603.5
B.
Defendant next argues his right to a speedy trial was violated by the State's
refusal to extradite him on the charges. He contends the indictment cannot stand
pursuant to the four-factor balancing analysis enunciated by the United States
Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972), as adopted by
our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).6 The motion
court briefly cited Barker, but did not address the guiding factors. In its
responding brief, the State does not address defendant's speedy trial argument,
but generally contends dismissal of the indictment would run counter to the
5 Nor has defendant cited any authority that the State is required to extradite a defendant on pending charges when the defendant has been deported. However, defendant's contention is better assessed through the lens of his speedy trial argument. 6 Defendant also cites the same unreported decision from this court that he cited before the trial court. An unpublished decision does not constitute precedent, is not binding upon us, and may not be cited except as permitted by Rule 1:36-3. We have considered defendant's contentions without reliance on our unpublished opinion.
A-3169-23 14 Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, as the statute of
limitations expires in November 2026. See N.J.S.A. 2C:1-6(b)(4) (providing, in
pertinent part, a prosecution for criminal sexual contact and endangering the
welfare of a child "must be commenced within five years of the victim's attaining
the age of 18").
"The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and imposed on the states by the Due Process Clause
of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App.
Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)). The
United States Supreme Court has long held constitutional protections of due
process apply to non-citizens within jurisdiction as well. See Wong Wing v.
United States, 163 U.S. 228, 238 (1896); Plyler v. Doe, 457 U.S. 202, 212
(1982).
"Excessive delay in completing a prosecution can potentially violate a
defendant's constitutional right to a speedy trial as a matter of fundamental
fairness." State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999); see
also Tsetsekas, 411 N.J. Super. at 8. The right to a speedy trial must be
addressed with a careful analysis of the circumstances. Barker, 407 U.S. at 522.
A-3169-23 15 "The only remedy" for a violation of a defendant's right to a speedy trial "is
dismissal of the charge." State v. Cahill, 213 N.J. 253, 276 (2013).
The Barker analysis requires courts to consider and balance the "[l]ength
of delay, the reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant." Barker, 407 U.S. at 530. Courts are required to
analyze each interrelated factor "in light of the relevant circumstances of each
particular case." Tsetsekas, 411 N.J. Super. at 10. The factors are "non-
exclusive," Cahill, 213 N.J. at 264, and no factor standing alone is "either a
necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial," Barker, 407 U.S. at 533. A court must "engage in a difficult and
sensitive balancing process." Ibid. The burden of demonstrating the Barker
factors weigh in favor of dismissal lies with the defendant. See State v.
Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006).
As a preliminary matter, notwithstanding our de novo review of
defendant's speedy trial claims, "our function as an appellate court is to review
the decision of the trial court, not to decide the motion tabula rasa ." Est. of
Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018). We could,
therefore, remand for the motion court to consider defendant's contentions under
the Barker analysis. However, we are convinced by our own independent
A-3169-23 16 assessment of the record denial of defendant's motion was appropriate.
Moreover, a remand for more explicit findings would only serve to delay the
same disposition in this accelerated matter. In doing so, we note defendant
neither requested the court amplify its decision under Rule 2:5-1(b), nor seeks a
remand.
Applying the Barker factors in the present matter, we first consider the
length of the delay. A trial date has not yet been scheduled in this matter.
Defendant filed the present motion on October 4, 2023, one month after the
September 5, 2023 bench warrant was issued and more than two years after
issuance of the indictment on August 27, 2021. As our Supreme Court has
recognized, "once the delay exceeds one year, it is appropriate to engage in the
analysis of the remaining Barker factors." Cahill, 213 N.J. at 266.
We therefore turn to the reason for the delay. "Barker's second prong
examines the length of a delay in light of the culpability of the parties."
Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407 U.S. at 529).
Eighteen months of the time frame at issue is attributable to defendant.
Commencing in January 2022, defendant applied for and was rejected from PTI;
was placed on bench warrant status for nearly three months; refiled his PTI
petition; appealed from the prosecutor's second rejection; and was unsuccessful
A-3169-23 17 on appeal to the Law Division. See Farrell, 320 N.J. Super. at 446 ("Delay
caused or requested by the defendant is not considered to weigh in favor of
finding a speedy trial violation.").
However, we attribute to the State the delay in prosecution after issuance
of the September 5, 2023 warrant. Although the State reasonably sought the
warrant to preserve its right to extradite defendant under our country's treaty
with Mexico, during oral argument before the motion court on January 25, 2024,
the State acknowledged the MCPO could not commit to extraditing defendant
on these third- and fourth-degree charges. To date, the State has not filed an
extradition application.
Although we ascribe the delay in prosecution after September 5, 2023 to
the State's refusal to extradite defendant, the eighteen-month time frame from
August 27, 2021 to October 4, 2023 is attributed to defendant's PTI applications,
including his brief bench warrant status. Under the totality of these
circumstances, we cannot conclude the length of delay was "excessively long."
See id. at 453.
Turning to the third Barker factor, a defendant's "assertion of [his] right
to a speedy trial is measured heavily in the speedy trial analysis." Cahill, 213
N.J. at 274. Nonetheless, "[a] defendant has no duty to bring himself to trial;
A-3169-23 18 the State has that duty." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div.
1977) (quoting Barker, 407 U.S. at 527). Courts should consider "the frequency
and force of the [defendant's] objections" in assessing whether the defendant
properly invoked the right. Barker, 407 U.S. at 529.
Shortly after he was indicted, defendant endeavored to remain in the
United States to confront the charges against him, culminating in the present
motion shortly after the September 5, 2023 warrant was issued and the State
indicated its reluctance to extradite him. On this record, we conclude the third
Barker factor inures to defendant's benefit. We recognize, however, the weight
ascribed to the third factor is somewhat buffered by defendant's delay in filing
this motion which, as stated, followed eighteen months of litigation regarding
his PTI application and his three-month bench warrant status.7
The fourth prong of the Barker analysis considers the prejudice "in the
context of the interests the right is designed to protect. Those interests include
prevention of oppressive incarceration, minimization of anxiety attributable to
unresolved charges, and limitation of the possibility of impairment of the
defense." Cahill, 213 N.J. at 266. We have also recognized "significant
7 Defendant ascribes no blame to the five-month time frame between the filing of his present motion in October 2023 until the court's decision in March 2024. A-3169-23 19 prejudice may also arise when the delay causes the loss of employment or other
opportunities, humiliation" and "the drain in finances incurred for payment of
counsel or expert witness fees." Tsetsekas, 411 N.J. Super. at 13. "[P]roof of
actual trial prejudice is not 'a necessary condition precedent to the vindication
of the speedy trial guarantee.'" Id. at 13-14 (quoting Merlino, 153 N.J. Super.
at 15-16). Cf. State v. Aguirre, 287 N.J. Super. 128, 133 (App. Div. 1996)
(reiterating "[t]he law is well-settled that actual prejudice, not possible or
presumed prejudice, is required to support a due process claim").
Defendant reprises his argument that the prejudice to him is
"unquantifiable" in view of his deportation on the pending charges and "the
hardship to his wife and two young daughters." We do not disagree.
On balance, however, we cannot conclude the Barker factors weigh in
favor of dismissal of the indictment at this time. Most of the delay was attributed
to defendant's PTI application process and he did not move to dismiss the
indictment until the bench warrant was issued. Moreover, because we conclude
a bench warrant was erroneously issued and defendant can participate remotely
in all future proceedings, a trial in this matter can be scheduled forthwith.
A-3169-23 20 III.
We turn to defendant's alternate contentions that the motion court
erroneously issued the bench warrant and denied his request to proceed virtually.
Defendant argues no authority precludes his virtual appearance and Rule 3:9-1
merely requires a defendant's "presence," without specifying his appearance
must be in person. Citing his right to waive his presence at trial, defendant
asserts, by analogy, that right should include his decision to appear remotely in
this case where his deportation prevents his in-person appearance.
Well-settled and evolving principles guide our review. A trial court is
vested with wide latitude in controlling all court proceedings. See State v.
Pinkston, 233 N.J. 495, 511 (2018); see also State v. Lansing, 479 N.J. Super.
565, 572 (App. Div. 2024). Appellate courts "apply the abuse of discretion
standard when examining the trial court's exercise of that control." State v.
Jones, 232 N.J. 308, 311 (2018). "A court abuses its discretion when its
'decision is made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" State v. Chavies, 247
N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65 (2020)).
An accused's right to be present at trial "is among the most fundamental
of constitutional rights." State v. Grenci, 197 N.J. 604, 614 (2009). That right
A-3169-23 21 emanates from the constitutions of the United States and this state, both of which
guarantee a criminal defendant's right to "be confronted with the witnesses
against him," ibid. (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10), and
the right to due process of law, ibid. (citing U.S. Const. amend. XIV; N.J. Const.
art. I, ¶ 1). As noted, long-standing United States Supreme Court precedent has
extended due process protections to noncitizens, without distinguishing between
individuals who are present in this country legally or illegally. See Wong Wing,
163 U.S. at 238; Doe, 457 U.S. at 212.
Pursuant to Rule 3:9-1(d), all disposition conferences, including a
"Discretionary Case Disposition Conference . . . shall be held in open court with
the defendant present." Similarly, Rule 3:16(a), which pertains to pretrial
hearings, provides "[t]he defendant must be present for every scheduled event
unless excused by the court for good cause shown." Further, paragraph (b) of
Rule 3:16 governs trial and post-conviction proceedings and, with limited
exceptions not relevant here, requires the defendant's "presen[ce] at every stage
of the trial" unless the defendant "waiv[es] the right to be present at trial."
Indeed, "[t]he right to be present at a criminal trial belongs to no one other than
the defendant," who may waive the right "directly or impliedly." State v.
A-3169-23 22 Ingram, 196 N.J. 23, 45 (2008); see also R. 3:16(b). Notably, Rule 3:9-1 neither
defines "present" nor expressly prohibits a defendant's virtual appearance.
In the preamble to the Virtual Court Order, our Supreme Court established
an "updated framework for court operations to allow more in-person
proceedings" and superseded the Court's November 18, 2021 order, which
addressed court operations during the COVID-19 pandemic. The Court
explained the superseding order was issued to establish "a more sustainable
approach to court operations in order to optimize access, participation, and the
timely administration of justice." Ibid.
The motion court in the present matter emphasized the first paragraph of
the Virtual Court Order, which provides, "[c]riminal jury trials shall continue to
proceed in person." The court rejected defendant's argument that the Virtual
Court Order only requires the in-court presence of the jury and, as such, the
court may permit defendant, his attorney, and a witness to appear virtually. The
court noted the absence of any "language that permits criminal jury trials to be
conducted virtually provided only the jury is present in person."
However, paragraph 7 of the Virtual Court Order states, "[c]ourt events
will be scheduled and conducted consistent with the principles of procedural
fairness." Paragraph 7(b) further provides, "[f]or all types of matters: . . . [i]n
A-3169-23 23 individual cases, all judges will continue to have discretion to grant an attorney
or party's reasonable request to participate in person in a virtual proceeding or
to participate virtually in a matter being conducted in person." (Emphasis
added).
Moreover, Rule 1:2-1(b) was promulgated the year preceding issuance of
the Virtual Court Order. Effective September 1, 2021, the rule provides, "[u]pon
application in advance of appearance, unless otherwise provided by statute, the
court may permit testimony in open court by contemporaneous transmission
from a different location for good cause and with appropriate safeguards." R.
1:2-1(b). As the comments to Rule 1:2-1 make clear, "[e]xperience with the
various video conferencing and live streaming applications employed during
th[e COVID-19] emergency laid the groundwork for rule adoptions providing
for the use of these technologies in appropriate circumstances." Pressler &
Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:2-1 (2025). The comments
to paragraph (b) of Rule 1:2-1 further state, "[w]hat constitutes good cause"
under Rule 1:2-1(b), "almost certainly will evolve with further experience with
contemporaneous proceedings." Id. cmt. 2.6.
As we recently held, the Virtual Court Order does not preclude a trial court
from permitting a witness to testify remotely at an evidentiary hearing without
A-3169-23 24 the State's consent. Lansing, 479 N.J. Super. at 574. In Lansing, we explained
Rule 1:2-1(b) and the Virtual Court Order address the use of remote testimony
in criminal proceedings. Id. at 574-75. We also stated the Virtual Court Order
"recognizes that 'judges also routinely exercise discretion to permit individuals
to participate virtually as necessary for health and other reasons.'" Id. at 575
(quoting Virtual Court Order pmbl.). We held a "trial court retains its authority
to permit remote testimony by witnesses at those proceedings where 'good cause'
is shown and 'appropriate safeguards' are imposed." Ibid.; see also Pathri v.
Kakarlamath, 462 N.J. Super. 208, 215-16 (App. Div. 2020) (establishing
guidelines for deciding "good cause" and "appropriate safeguards" for allowing
virtual testimony in a Family Part hearing).
With these principles in view, we first conclude the motion court
incorrectly exercised its discretion by issuing a bench warrant for defendant's
failure to appear in person at the September 5, 2023 conference. Defendant not
only appeared virtually at this conference, but also participated remotely at
nearly all prior conferences. Defendant's inability to attend court hearings in
person in this matter was the direct result of his removal from the United States
by immigration officials, not by his voluntary conduct. See Lopez-Carrera, 245
N.J. at 617. The motion court issued the September 5, 2023 bench warrant as a
A-3169-23 25 "means" of detaining defendant should he reenter the United States. But the
State has not since moved to extradite defendant in view of the degree of his
pending charges. Under these circumstances, the bench warrant must be
vacated.
We further conclude the motion court mistakenly exercised its discretion
by denying defendant's request to participate virtually at trial under the
confluence of circumstances presented here. Specifically, defendant's
deportation status and the State's refusal to extradite him on these third- and
fourth- degree charges prevent his lawful reentry into the United States and, as
such, his in-person appearance at trial.
Accordingly, reading paragraphs 1 and 7 of the Virtual Court Order "in
context . . . to give sense to the [order] as a whole," DiFiore v. Pezic, 254 N.J.
212, 228 (2023), and in view of the Court's express purpose of "optimiz[ing]
access, participation, and the timely administration of justice," we hold
defendant's appearance remotely via video link does not convert the trial into a
virtual proceeding. Our review of the motion record reveals only defendant has
requested to appear remotely at trial. All other participants, including the jury,
will appear in person. Defendant's request was governed by paragraph 7(b) of
the Virtual Court Order, which grants courts discretion to allow a "party's
A-3169-23 26 reasonable request . . . to participate virtually in a matter being conducted in
person." That request is not contravened by Rule 3:16, which does not expressly
require defendant's in-person appearance at court proceedings.
Our holding is consonant with defendant's ability to waive his right to
appear at trial pursuant to Rule 3:16(b). Stated another way, because defendant
may waive his right to appear at trial, the court mistakenly exercised its
discretion by not permitting his reasonable request to appear virtually at an
otherwise in-person trial in view of his inability to legally reenter the United
States and physically appear in court.
Lastly, we address the State's concern regarding the "brief" interpreter
issues experienced during oral argument before the motion court. In State v.
Juracan-Juracan, 255 N.J. 241, 250 (2023), our Supreme Court considered, as a
matter of first impression, "whether [a] defendant was entitled to in-person as
opposed to remote interpreting services." Noting "it remains crucial that the
fundamental principles of fairness and a defendant's right to fully participate at
trial are preserved," the Court set forth various factors for consideration by trial
courts when determining whether to permit video remote interpreting services.
Id. at 245-46. Relevant here, the Court stated, "guardrails should be put in place
to ensure a fair trial for defendants, including built-in breaks for the interpreter
A-3169-23 27 to rest and for the defendant to consult with counsel." Id. at 259. We are
confident the court in this matter will follow the Court's guidance in Juracan-
Juracan.
* * * *
In summary, we affirm the March 7, 2024 order denying defendant's
motion to dismiss the indictment, and reverse and remand for the court to vacate
the September 5, 2023 bench warrant. On remand, the court shall conduct a
final pretrial conference, schedule a trial date, and permit defendant to appear
remotely at all remaining proceedings. We conclude defendant's virtual
appearance is a reasonable accommodation given the circumstances presented
in this case. Defendant will thus be afforded an avenue to contest the present
charges, which were the catalyst for his deportation. Defendant's virtual
appearance protects his right to be present and participate at his trial – and it
ensures the victim's rights "[t]o be treated with dignity and compassion by the
criminal justice system," N.J.S.A. 52:4B-36(a), and "[t]o be present at any
judicial proceeding involving a crime," N.J.S.A. 52:4B-36(p).
Further, we are confident the court can implement adequate precautions
to minimize technological issues or irregularities during the hybrid proceeding.
See State v. Vega-Larregui, 246 N.J. 94, 134-35 (2021) (holding a virtual grand
A-3169-23 28 jury proceeding did not violate the fundamental fairness doctrine or defendant's
constitutional rights, as the prosecutor and Judiciary staff took precautions to
preserve the sanctity of these proceedings); see also Juracan-Juracan, 255 N.J.
at 259.
Finally, although we recognize defendant's removal from the United
States prohibits the court from enforcing a custodial or non-custodial sentence,
those obstacles do not outweigh defendant's right to a speedy trial on the charges
he has consistently contested. Also, it is not lost on us that the immigration
judge considered those charges as "a significant negative equity in both [h er]
good moral character and discretionary determinations." Any future issues with
sentencing, if defendant is convicted, neither preclude defendant's right to
answer the charges filed against him nor the victim's rights under the Crime
Victim's Bill of Rights.
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-3169-23 29