STATE OF NEW JERSEY v. BYRON D. KEMP (18-11-1495, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0565-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BYRON D. KEMP, a/k/a
BYRON D. KEMP, JR.,
Defendant-Appellant.
________________________
Submitted February 28, 2022 – Decided March 8, 2022
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No.
18-11-1495.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Denny, Assistant Deputy Public
Defender, of counsel and on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Byron D. Kemp appeared as a self-represented litigant during
his jury trial on drug and weapons offenses. He appeals from his convictions
for second-degree possession of a controlled dangerous substance with the intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); third-degree possession
of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and fourth-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3), and
from the aggregate twelve-year sentence imposed by the court. He argues his
conviction should be reversed because he did not knowingly, voluntarily, and
intelligently waive his right to counsel, and he contends his sentence should be
vacated because the State failed to timely move for an extended term. We
reverse his conviction because the record does not support the court's
determination defendant knowingly and intelligently waived his right to
counsel, and we remand for further proceedings consistent with this opinion.
I.
Prior to his trial, defendant was represented by three different attorneys
following his indictment on multiple drug and weapons offenses. Four weeks
before the scheduled trial date, defendant informed the court he fired his then -
counsel, he did not intend to hire new counsel, and he "wish[ed] to proceed on
[his] own."
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The court explained it was obligated to "make certain inquiries" of
defendant before he could represent himself. The court asked defendant why he
"want[ed] to represent [him]self?" and defendant replied, "I can't represent
myself." The court asked defendant why he fired his counsel, and the court
noted defendant had two prior attorneys who had represented him in the matter.
Defendant said he did "not wish to represent himself" but that he was dissatisfied
with his counsel's failure to obtain discovery due from the State even though the
trial was scheduled.
The State informed the court all discovery materials in its possession had
been provided to defendant's counsel, but then incongruously explained there
was a recorded statement on a disc that had not been turned over and transcripts
it planned to order and supply to defendant. When asked by the court if he
wished to continue to have his counsel represent him if the State provided the
outstanding discovery, defendant explained his "people do not wish to pay any
more money" to the attorney and they refused to pay the balance of the retainer
owed to the attorney.
Defendant advised the court he did not want the services of the Office of
the Public Defender "at this point," and the court explained it would not "provide
an attorney for [defendant] on the morning of the trial." Defendant responded,
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"That's understandable," and said all he was "seeking at this point" was the
discovery in the case that was scheduled for trial and in another case pending
against him.
The court and defendant had the following colloquy about whether
defendant's receipt of the requested discovery would affect his decision to
proceed without counsel.
THE COURT: Now, let's assume you have your
discovery, do you want a public defender?
DEFENDANT: No, I don't.
THE COURT: Do you wish to represent yourself then?
DEFENDANT: I wish to make my own presentment, to
represent myself, I am myself.
The court then asked defendant additional questions and became
frustrated by what it characterized as defendant's "stonewalling."
THE COURT: How old are you, Mr. Kemp?
DEFENDANT: I'm the oldest man on the planet, Your
Honor.
THE COURT: I don't think that answers the [c]ourt's
question. How old are you? When were you born?
DEFENDANT: (No response.)
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THE COURT: You can stonewall the [c]ourt, if you
wish, Mr. Kemp, it makes no difference to this judge.
But I'm telling you that, as a matter of advice, that if
you're going to trial without an attorney, it can be a
great burden for someone without a legal education.
That's up to you. And whether you have an attorney or
you don't really depends upon what you tell me. And if
you stonewall the [c]ourt, you'll just simply go to trial
on your own without the help or advice of anyone. So
it's up to you. How old are you?
DEFENDANT: I haven't had any help or advice thus
far, Your Honor. This is the point I'm trying to make
to the Court.
THE COURT: So the question is a simple one. How
old are you? And you haven't answered it. How far did
you go in school?
DEFENDANT: Your Honor, this – that information is
already available to the [c]ourt. You already have a
record of all of that.
THE COURT: Do you have any family to rely on to
give you any advice?
DEFENDANT: I'm incarcerated, Your Honor.
THE COURT: Do you speak to your family on the
phone or your friends, anyone that you can rely on for
advice?
DEFENDANT: For advice?
THE COURT: Yes.
DEFENDANT: No.
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The court also mentioned weapons charges in the indictment against
defendant and the court inquired as to defendant's knowledge of the penalties.
THE COURT: You're charged with unlawful
possession of a weapon, possession of a weapon or a
firearm in a drug crime and you're charged with being
a certain person not to possess a weapon. Which means
all the State has to prove is that you had a weapon, that
is a firearm, and that you had previously been convicted
of a serious offense. Do you understand what those
charges mean?
DEFENDANT: No.
THE COURT: Do you know what the penalty is if you
are convicted on those charges?
DEFENDANT: No.
Rather than explain the charges and their attendant penalties, the court
ended its questioning of defendant and found he was "for whatever reason,
stonewalling . . . and making it more difficult for the [c]ourt to afford him the
best possible fair trial." The court relieved defendant's then-counsel of his
representation of defendant and ordered the State to provide a complete copy of
the discovery to defendant at a hearing the court scheduled for the following
week. The court also adjourned the trial for one week.
At a hearing the following week, the State provided defendant with
discovery, and the court appointed standby counsel to assist defendant at trial.
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The court also explained that it had attempted, at the prior hearing, to inform
defendant "concerning the difficulties that [he] might have when representing
himself," but it "never really got to the heart of the discussion because
[defendant] essentially refused to answer any of the [c]ourt's questions." The
court stated it "never got to the point of telling [defendant] that if he represented
himself . . . he would not, in the event of a conviction, ever be able to contend
that he suffered from ineffective assistance of counsel[,]" and noted it therefore
made that point "clear at this time."
At the third and final pretrial hearing, the court again revisited defendant's
decision to represent himself, noting it had previously endeavored to ask
defendant questions related to the decision and it had found, based on
defendant's responses, "it was apparent . . . the [c]ourt was going to be able to
go no further in its attempt to determine if [defendant] was capable of
representing himself." The court noted there were areas of inquiry pertinent to
its decision whether to grant defendant's request to represent himself that it had
not addressed, but the court found that "if the defendant is not going to respond
there is no way that the [c]ourt has of knowing that."
The court again asked defendant if he "desire[d]" to represent himself, and
defendant said, "Yes, Your Honor." In response to the court's questioning,
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defendant admitted he had been previously tried before a jury on other charges,
and the court informed defendant he had a right to remain silent and that if he
decided not to testify the jury would be instructed not to consider his silence as
an admission of guilt. The court further instructed defendant that if he opted to
testify at trial, he would be required to respond to questions about whether he
had previously been convicted of a crime and he would not be permitted to assert
his right to remain silent during cross examination by the State.
When asked if he understood those rights, defendant expressed confusion
about the purpose of the court's questioning. The court explained its purpose
was to determine if defendant could properly represent himself at trial. In
response, defendant noted he still did not have complete discovery, and the court
thereafter addressed that issue.
Defendant represented himself at trial and on May 15, 2019, the jury found
him guilty of second-degree possession of a controlled dangerous substance with
intent to distribute, third-degree possession of a controlled dangerous substance,
and fourth-degree possession of a controlled dangerous substance. The jury
found defendant not guilty of the four remaining charges.
At a July 9, 2019 sentencing proceeding, defendant appeared with new
counsel. The State moved orally for imposition of a discretionary extended term
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sentence. See N.J.S.A. 2C:44-3(a) (authorizing imposition of extended-term
sentences for persistent offenders convicted of first, second, and third -degree
offenses). The court directed the State to file a written motion and adjourned
the sentencing. That same day, the State filed a motion for an extended -term
sentence.
The following day, the court conducted a sentencing proceeding, and
merged the third-degree conviction into the second-degree conviction, granted
the State's motion for an extended-term sentence, and imposed a twelve-year
prison sentence on the second-degree offense. The court also imposed a
concurrent eighteen-month prison sentence on the fourth-degree offense.
Defendant appeals from his convictions and sentence. He offers the
following arguments for our consideration:
POINT I
THE COURT'S FINDING THAT DEFENDANT HAD
WAIVED HIS RIGHT TO COUNSEL WHEN HE DID
NOT WANT TO PROCEED PRO SE AND WAS NOT
FULLY INFORMED ABOUT THE
CONSEQUENCES OF THE WAIVER WAS ERROR.
A. [Defendant] Did Not Voluntarily Waive His Right
To Counsel.
B. Even If [Defendant] Had Wanted To Represent
Himself, He Did Not Make A Knowing Waiver Of His
Right To Counsel.
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POINT II
WRITTEN NOTICE OF THE STATE'S MOTION FOR
AN EXTENDED TERM WAS OUT OF TIME, AND
THE DEFENDANT HAD NO MEANINGFUL
OPPORTUNITY TO RESPOND TO IT IN
VIOLATION OF HIS RIGHT TO DUE PROCESS.
II.
Defendant argues he is entitled to a reversal of his convictions because he
did not knowingly, voluntarily, and intelligently waive his right to counsel. He
claims he repeatedly informed the court he did not wish to represent himself
and, for that reason, the court erred by finding he voluntarily waived his right to
counsel. He also argues the court failed to adequately inform him about the
implications of his decision to waive counsel and, as a result, his decision to
waive his right to counsel was not made knowingly and intelligently.
We review a court's ruling on a defendant's request to waive the right to
counsel and appear as a self-represented litigant for an abuse of discretion. State
v. Outland, 245 N.J. 494, 507 (2021). A court abuses its discretion when its
"decision [is] made without a rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis." United States v.
Scurry, 193 N.J. 492, 504 (2008) (citing Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)).
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"The Sixth Amendment of the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution both guarantee all defendants in
criminal prosecutions the right to . . . the [effective] assistance of counsel."
Outland, 245 N.J. at 505. A defendant also has a constitutional right "to
represent oneself at trial, so long as the defendant has 'voluntarily and
intelligently' waived the right to counsel." State v. Rose, 458 N.J. Super. 610,
625 (App. Div. 2019) (quoting Faretta v. California, 422 U.S. 806, 807 (1975)).
"Because the '[a]ssistance of counsel is essential to ensuring fairness and
due process in criminal prosecutions,' relinquishing one's right to the benefits of
representation of counsel can be allowed only when the court is satisfied the
defendant understands 'the implications of the waiver [of counsel].'" Outland,
245 N.J. at 505 (alterations in original) (quoting State v. Crisafi, 128 N.J. 499,
509 (1992)). To determine if a defendant has such an understanding, "the trial
court must ascertain, in a so-called 'Faretta hearing,' whether the waiver is
indeed knowing, voluntary, and intelligent after a searching inquiry that
involves advising the defendant of the risks and pitfalls of self-representation."
Rose, 458 N.J. Super. at 627.
The purpose of the requisite searching inquiry "is not to ascertain whether
a defendant possesses technical legal knowledge," but rather it is to "apprise the
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defendant 'of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and his choice is made with
eyes open.'" Outland, 245 N.J. at 506 (quoting Faretta, 422 U.S. at 835). "[T]o
ensure that a defendant's waiver of counsel is knowing and intelligent," there are
"topic areas that a trial court must explore with a defendant seeking to proceed
pro se." Ibid.; see also State v. Reddish, 181 N.J. 553, 593-94 (2004); Crisafi,
128 N.J. 510-12.
A trial court is "require[d] . . . to inform a defendant asserting a right to
self-representation of" the following:
(1) the nature of the charges, statutory defenses, and
possible range of punishment; (2) the technical
problems associated with self-representation and the
risks if the defense is unsuccessful; (3) the necessity
that defendant comply with the rules of criminal
procedure and the rules of evidence; (4) the fact that the
lack of knowledge of the law may impair defendant's
ability to defend himself or herself; (5) the impact that
the dual role of counsel and defendant may have; (6)
the reality that it would be unwise not to accept the
assistance of counsel; (7) the need for an open-ended
discussion so that the defendant may express an
understanding in his or her own words; (8) the fact that,
if defendant proceeds pro se, he or she will be unable
to assert an ineffective assistance of counsel claim; and
(9) the ramifications that self-representation will have
on the right to remain silent and the privilege against
self-incrimination.
[State v. DuBois, 189 N.J. 454, 468-69 (2007).]
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A trial court should also "specifically advise the defendant[] that it would be
unwise not to accept the assistance of counsel." Outland, 245 N.J. at 506
(quoting Crisafi, 128 N.J. at 512).
Here, the court recognized its obligation to conduct a searing inquiry of
defendant to ensure he fully understood the dangers and disadvantages of his
decision to proceed as a self-represented litigant. The court endeavored to
engage defendant in that inquiry during the first pretrial hearing but became
frustrated by what it found was defendant's "stonewalling." Based on that
finding, the court determined that any further questioning of defendant was
unnecessary, discontinued its efforts to further question defendant or apprise
him about all the prescribed topics, and addressed only issues related to
discovery production.
The court's reliance on its finding defendant had stonewalled during the
first pretrial proceeded continued during the second and third proceedings. In
those proceedings, the court found the stonewalling rendered it impossible to
engage in a colloquy with defendant to apprise him about the topics necessary
to ensure his decision to appear pro se at trial was made knowingly and
intelligently. The court instead chose to simply inform defendant during the
second pretrial proceeding that his decision to proceed without counsel would
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bar him from filing an ineffective assistance of counsel claim and, at the third
pretrial proceeding, about his right to remain silent and some risks associated
with a decision to testify at trial.
As a result of the court's finding defendant stonewalled in the first
instance, and its concomitant decision to thereafter limit its colloquy with
defendant about his decision to appear pro se at trial, the court did not inform
defendant about numerous topics that must be addressed to ensure the record
demonstrates he made a knowing and intelligent decision. See Outland, 245
N.J. at 506; DuBois, 189 N.J. at 468-69.
More particularly, the court did not inform defendant about: the nature of
all the charges,1 the statutory defenses to the charges, and the possible ranges of
punishment, including defendant's exposure to an extended term sentence; any
technical problems associated with self-representation and the risks if the
defense is unsuccessful; the necessity that defendant comply with the applicable
rules; the fact that defendant's lack of knowledge could impair his ability to
defend himself; and the impact of defendant serving the dual role of counsel and
defendant. Ibid. The court also did not inform defendant it would be unwise to
1
During the first pretrial proceeding, the court mentioned only the weapons
charges against defendant, and did not identify the drug charges for which
defendant was later convicted and sentenced.
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proceed without the assistance of counsel. Ibid. In other words, the court did
not mention, address, or discuss many of the topics the Court has determined are
essential to ensure a defendant's decision to proceed to trial pro se is made
knowingly and intelligently.
We find the court erred by failing to fully address the requisite topics with
defendant during the pretrial proceedings. That is because the court's decision
to effectively end the process of reviewing the topics is founded on a premise—
defendant was stonewalling—not supported by the record.
To be sure, defendant's answers to the court's initial questions about his
age during the first pretrial proceeding were evasive, farcical, and non-
responsive. Its legitimate frustration with those answers, however, clearly
distracted the court from completing the task of apprising defendant of the topics
required to create the record necessary to support a finding he knowingly and
voluntarily waived his right to counsel. See ibid.; see also Faretta, 422 U.S. at
835.
As the record shows, defendant did not refuse to answer the court's
questions about the topics pertinent to his decision to appear pro se.
Immediately following defendant's nonresponsive answers to the questions
about his age, defendant responded directly to inquiries about topics the Court
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requires that a trial court review with a defendant intent upon appearing pro se.
The court asked defendant whether he understood the weapons charges against
him and if he was aware of the penalties if convicted. See DuBois, 189 N.J. at
468 (requiring a court "inform a defendant . . . of . . . the nature of the
charges . . . and possible range of punishment"). Defendant did not refuse to
answer the questions, and he did not provide evasive answers to them. The
court's finding to the contrary is undermined by the record.
The court's determination it would not further question defendant or
inform him about the prescribed topics because defendant stonewalled and
refused to answer its questions is simply not supported by the evidence.
Moreover, the court's apparent skepticism about the truth of defendant's
responses to the questions about the weapons offenses and their attendant
penalties did not relieve the court of its obligation to inform defendant about all
the prescribed topics essential to the court's determination. 2 A defendant's
perceived or actual recalcitrance does not excuse a court's failure to cover the
2
Indeed, the court recognized its obligation in the second and third pretrial
proceedings by informing defendant concerning the unavailability of a
subsequent ineffective assistance of counsel claim and issues related to his right
to remain silent at trial, although without asking defendant any questions related
to those issues. But the court did not complete the required process by
addressing the remaining topics.
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required topics with a defendant choosing to forego counsel because, at the end
of the process, the court must make a finding the defendant knowingly and
intelligently waived his right to counsel.
Here, the court was required to review all the topics with defendant and
should have advised defendant it was unwise to proceed without counsel.
Outland, 245 N.J. at 505-06. Depending on defendant's answers to the court's
inquiries, whether responsive or not, the court should have made findings,
including credibility findings, as to whether defendant knowingly and
intelligently waived his right to counsel. See Reddish, 181 N.J. at 594-95(explaining a court must make credibility determinations concerning a
defendant's statements during the inquiry required to determine if there is a
knowing and intelligent waiver of counsel). To the extent defendant professed
a lack of knowledge of information pertinent to a making a knowing and
intelligent decision to waive counsel, the court should have supplemented that
information instead of abandoning the process out of frustration. Lacking a
record defendant was fully informed of the "dangers and disadvantages of self-
representation," Faretta, 422 U.S. at 835, we are compelled to conclude there is
insufficient evidence establishing defendant knowingly and intelligently waived
his right to counsel, see Outland, 245 N.J. at 506 (explaining the purpose of the
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court's colloquy concerning a defendant's decision to proceed without counsel
is "so . . . the record will establish that [the defendant] knows what he is doing
and his choice is made with eyes open" (quoting Faretta, 422 U.S. at 835)).
Generally, a failure to inform a defendant concerning the topics requir ed
by the Court "would compel reversal of a conviction." Crisafi, 128 N.J. at 512.
However, "in rare cases" where "the record indicates that the defendant actually
understood the risks of proceeding pro se, a waiver" unaccompanied by
information regarding the prescribed topics required by the Court, may be
deemed valid. Id. at 513. The record must support a finding that despite the
absence of a full explanation of the dangers and disadvantages of proceeding
pro se, the defendant fully "understands the consequences of the waiver." Id. at
512. That did not happen here.
In Crisafi, the Court found the defendant presented "such a rare case"
because "his background and experience support[ed] a conclusion that he knew
the pitfalls of trying his own case." 128 N.J. at 513. The record showed the
defendant was fifty-seven and had "extensive experience with the criminal
justice system[,]" including having previously obtained, as a pro se defendant,
an acquittal from a jury "on a rape charge." Id. at 513-14. The defendant also
had a college degree in business law, and he demonstrated during the pretrial
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proceedings his knowledge of the charges against him, and, during trial, his
knowledge of the maximum sentence to which he was exposed. Id. at 514-15.
The record also established that through the assistance provided to defendant by
standby counsel during pretrial and trial proceedings, defendant was
"substantially informed" "about 'whatever pitfalls he face[d]'" as a pro se
litigant. Id. at 517-18.
The State does not argue this is a rare case where the court's failure to
fully inform defendant concerning the issues pertinent to his decision to appear
pro se permits a finding defendant knowingly and intelligently waived his right
to counsel. And the State does not point to any evidence establishing this is the
rare case referenced by the Court in Crisafi. Id. at 513-14. Moreover, defendant
is unlike the defendant in Crisafi. Defendant was thirty-one, and had only two
prior criminal convictions, one of which was from many years ago when he was
a juvenile tried as an adult. There is no evidence he previously represented
himself at trial or otherwise; he is a high school graduate and does not have a
college degree in law; and there is no record as to what advice, if any, he
received from his prior counsel or standby counsel concerning the pitfalls of
representing himself at trial.
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Additionally, the record shows defendant said he did not fully understand
the weapons charges against him and was unaware of the attendant penalties.
And the court neither provided that information nor explained to defendant the
drug charges against him or the penalties, including his exposure to the
extended-term twelve-year sentence that was later imposed after he was
convicted of the drug charges. See State v. Kordower, 229 N.J. Super. 566, 578
(App. Div. 1989) (finding a court's colloquy with defendant supporting a finding
defendant knowingly waived her right to counsel was inadequate because the
court did not fully explain the serious nature of the charges, or the maximum
sentence that she could receive).
We therefore find the court's failure to create the requisite record
establishing defendant made his decision to waive counsel knowingly and
intelligently requires the reversal of his conviction and a remand for a new trial.
See Outland, 245 N.J. at 506. Prior to the trial on remand, the court shall
determine anew whether defendant intends to proceed pro se or with counsel in
accordance with the requirements explained by the United States Supreme Court
in Faretta, 422 U.S. at 835-36, and most recently summarized by our Supreme
Court in Outland, 245 N.J. at 505-07. See State v. Figueroa, 186 N.J. 589, 596
(2006) (explaining a violation of the requirements of Faretta and Crisafi "is of
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constitutional dimension" and therefore the "defendant must be returned to
status quo ante and, hence, is entitled to exercise his constitutional rights
anew").
It is therefore unnecessary to address in detail the merits of defendant's
claim his conviction should also be reversed because his decision to waive
counsel was not made voluntarily other than to note that, as an issue independent
of his claim his decision was not made knowingly and intelligently, it is without
sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(2).
We add only that defendant repeatedly informed the court that he wished to
proceed without counsel, and his claim he was forced to make that decision
because of frustration with his counsel's alleged failure to obtain discovery is
undermined by the record. The court asked defendant if he would want an
attorney if he was provided with all outstanding discovery, and defendant
responded unequivocally he did not.
For purposes of completeness, we also consider defendant's claim the
court erred by granting the State's motion for an extended term because it was
not filed within fourteen days of the return of the jury's verdict as required by
Rule 3:21-4(e). Neither defendant, who addressed the court and made argument
at sentencing, nor his counsel at the sentencing proceedings raised the issue of
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the untimeliness of the State's application under the Rule. Defendant's counsel
sought an adjournment of sentencing because he had just been retained, but the
request was founded solely on counsel's claimed unfamiliarity with the trial
record. No adjournment was sought based on issues related to the timing of the
filing of the State's motion for an extended term sentence.
At sentencing, counsel noted the State filed its motion for an extended
term the previous day but he advised the court that nonetheless he was "prepared
to address it." Counsel then addressed the merits of the motion, referred to the
prior convictions upon which the State relied to support imposition of an
extended term under N.J.S.A. 2C:44-3(a), and argued the convictions did not
warrant imposition of the extended-term sentence the State sought in its motion.
We decline to further address the merits of the argument because it was
"not properly presented to the trial court" and does not "go to the jurisdiction of
the trial court or concern matters of great public interest." State v. Robinson,
200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973)). And, here, by failing to timely raise the issue before the trial court,
defendant effectively precluded the State from addressing, and court from
considering, whether there was good cause under Rule 3:21-4(e) permitting the
otherwise untimely filing of the motion.
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Any arguments made on defendant's behalf we have not expressly
addressed are without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2)
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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