-.. . - . . . 2 2M3 %39mw IACULLO MARTINO, L.L.C. 247 Franklin Avenue Nutley, New Jersey 07110 (973)23541550 . tonyi@iacu1lomartinQ.com No. 0575 F. 2/69 Attorneys for Appellant Giuseppe Tedescc 0 STATE OF NEW JERSEY Plaintiff-Respondent: GIUSEPPE TEDESCO, Defendant--Appellant COURT OF NEW JERSEY DOCKET CRIMINAL ACTION Sat Below: Hon. Anthony J. Parrillo, P.J Hon, Douglas M. Fggqiale, J.A4 . BRIEF APPENDIX ON BEHALF OF DEFENDANT-APPELLANT GIUSEPPE TEDESCO Of Counsel and On the Brief: -Anthony J. Iadullo, Esq. Attorney for'Appe11ant On the Brief; Joshua H. Reinitz, Esq. "Attorney for Appellant Dated: April 1, 2013 DA.D. I .J . 2. 2013 110.0675 P. 3/69. TABLE OF CONTENTS IE2 . TABLE OF AUTHORITIES -ii STATEMENT OEPROCEDURAL HISTORY A A I O1 STATEMENT OF FACTS I I 4. PRELIMINARY STATEMENT I LEGAL ARGUMENT I. THE MOVANT LACKS STANDING TO FILE THE MOTION 9 DEFENDANT CONFORMED THE RULES OF COURT AND MUST THEREFORE BE PERMITTED TO WAIVE HIS APPEARANCE AT SENTENCING. . 13 CONCLUSION I 22 APPENDIX INDICTMENT 10-03-00289-1 A A I Aal I WAIVER IN COMPLIANCE WITH 321.4 A AA4 A MOTION COMPEL AES HON. N. CONFORTI, MARCH 13, 2013 ORDER AE7 APPLICATION TO FILE AN EMERGENT MOTION A33 MARCH 18, 2013 DECISION OF THE APPELLATE DIVISION A2112 MARCH 19, 2013 ORDER DENYING STAY OF SENTENCING ASI6 NOTICE OF MOTION TO STAY SENTENCING I MARCH I9, 2013 ORDER OF THE SUPREME COURT Aa20 NEW JERSEY HERALD ARTICLE JANUARY 9, 2013 . - I . A321 STATE V. CULLEN WRITTEN OPINION 1 I OAE22 1 Apt 2. 2013 No.0675 P. 4/69 TABLE OF AUTHORITIES Rules of Court Statutes N.J.S.A. 1 2C:39-4a 1 N.J.S.A. 1 1 52:43-36 . passim_ 1:1--1 A . 15 1:1-2 3 . passim 43 17 (Eases State in the Int. of K.P. 311 N.J.Super. 123 (Ch. 1997) 10 State V. Morton, 185 N.J. 383 13 -State v. Muhammad 145 N.J. 23, 42-43 (1996) 1 9 United States v. Turner, 532 913 (N.D. Cal. 1982)17 Velazquez v. Jgflinez, 172 N.J. 240, 256 (2002) 20.- 2.2013 No.0675 F. 5/69 STATEMENT dF PROCEDURAL HISTORY Detendant/Appellant Giuseppe Tedesoo was charged by way of indictment with Murder contrary to or Unlawful Possession of-a Weapon contrary to N.J.S.A. 5b,; and Possession of a Weapon for an Unlawful Purpose contrary' to 2C:39--4a. (Aal)1_Empanelment of the jury commenced on -September 12, 2012; The matter was tried before Hon. N. Peter Conforti, J.S.C. with testimony taking nearly nine trial days in December 2012. Closing arguments and jury charges proceeded in _early January 2013, with a verdict of guilty on all counts was rendered on January 10, 2013, Sentencing was set for March 20, 2013. On February 8, 2013, Appellant executed a written waiver, pursuant to 3; intending to waive his presence at sentencing and waiving his right to allooute and any right to appeal a denial of that right. (Aae). This waiver was provided 'to trial court and the Office of the Sussex County Prosecutor early the following week. The victim's mother,.Miche11e Ruggieri, through attorney Richard Pompelio of the Victim's Rights Law Center filed a Motion on February 25, 2013, seeking to compel the presence of the defendant at sentencing,(Aa5) -After a conference call with 1 Aa refers to Defendant/Appellant's appendix. Apr. 2- 2013 No. 0675 P. 5/59 all of the parties the motion was-set to be argued on March 13, 2013. Appellant submitted a letter brief on the merits of the issue and Mrs. Ruggieri's ("Movant") standing to file same. The State joined in the Movant's position. On March 13, 2013, after hearing brief argument, the trial court granted the Movant's motion and ordered that the Appellant be produced for sentencing. lT20--42 Counsel-for Appellant unsuccessfully requested a stay of the sentencing to permit time to seek Leave to Appeal from the Appellate Division. 1T23--6 (Aa7) Later that day, Appellant filed an application seeking permission to file an emergent motion. On March 14, 2013, the Appellate Division advised the parties by telephone that it was requesting briefs be submitted by Noon on March 15, 2013. All parties complied with this request.3 on March 18, 2013, the Appellate Di?ision filed an order granting leave to appeal thenp affirming the decision of the trial court. (Aa12). The Appellate Division subsequently denied Appellant's request for a stay of the sentencing to permit him to seek leave to appeal from the New Jersey Supreme Court. (Aa16). 2lT refers to the-verbatim transcript of the March 13, 2013, Motion hearing and decision. - 3These briefs were made part of the record and submitted to this Court with Appellant-'s' emergent application. Apr. 2. 2013 No.0675 P, 7/59 On March 19, 2013, Appellant filed a Notice of Motion with the New Jersey Supreme Court requesting a stay of the sentencing and leave to appeal the decision of the Appellate Division. (Aa18) Later that daf, the Court granted Appellant's application for a stay of the sentencing and ordered that merits briefs be filed by April 2, 2013, and set a date for oral argument. (Aazo) Ann 2 2on magmm it A Nm0575 8/69 STATEMENT OF FACTS r?nis csae nas~taer t?rrewtieaa teetgrr aitr ssati1ity f?iacsAAppellanFTe wonreesraes jury ae1iberati?ns w?n i uaryne; 2his. it .tai.sce between wambers or the two rami1ias.4 caazma on January 10, 2013, after a-month-long-trial, Giuseppe Tedesco was convicted by a jury or Murder, Possession of a Weapon for an Unlawful Purpose and Unlawful Possession of a Weapon stemming from a March 27, 2010, incident in Hopatcong, New Jersey. In the wake of the Verdict, an altercation ensued between Mr. Tedeseo and members of the Ruggieri family-in the gallery which resulted in new charges being filed against the _Defendant. These charges include Aggravated Assault against a Police Officer as one of the Sussex County Sheriff's 0ffioere_ incurred a concussion anfi a broken leg in the fracas. After this interaction between Mr. Tedesco and the Sussex County Sherriff'e Department, Appellant was moved from the Sussex County Jail to the New Jersey State Prison in Trenton, where he remains to this day, 'Attached as part of the Appendix is a newspaper article detailing this. specific incident and others that occurred throughout the proceedings. Apr. 2. 2013 News P. 9/69 On February 8. 2013, Appellant executed a waiver of his appearance at sentencing conaistent with the'requirementa-of In his waiver, Appellant also waived his right to allocute to Ehe Court as wall as his right fio raise a denial of same in any appeal. Apr. 2. 2013 No.0675 P. 10/59 PRELIMINARY STAEEMENT This is an apparent matter of first impression with no I prior decisions reported by either the superior Court -- Appellate Division or the New Jersey Supreme court. After heing convicted of three charges including Murder, Appellant exercised his ability to waive his right to be present at sentencing. There is no dispute that the Appellant has a Constitutional ight to appea a 1: hi ant enab?eii to him? i siss.seat~ s. 'hits alppearanc. it ss1;encing Appellant contends that the does not negate his right to waive his appearance but exists in harmony with 3; New Jersey Rules of Court establish a procedure by which a defendant may waive his appearance at sentencing. The Rule is silent other than requiring the waiver be made in writing and figfifiggss ts vest all of the poses within the defendant. It is .undisputed that Appellant complied with the requirements of the. Rule. The MoVant_claims to have standing based in the New Jersey Crime Victim's Bill of Rights. This is disputed by Apt Na0675 11/69 the Appellant. The confers upon victims a right to-file motions to vindicate rights conferred within the statute. The' statute specifically confers the right for a victim to make an 'impact statement to the court at-sentencing. eVea ??st?iaaisipravision l??f?fidant daring srs'srsres.nt. Appellant has never advocated against the victim's right to speak at sentencing and has not argued that snch.a right does not exist. Absent an express granting of a right to compel the defendant's presence} the Movant is without standing to file a motion for such relief. An examination of the controlling statutes and Rules of Court compel the decision that a defendant who complies with the waiver provision is entitled to absent himself from sentencing. The was enacted originally in and was revised as recently as August 2012. In its most recent revision; the Legislature and Governor Christie added provisions regarding the rights of victims at sentencing. The bill remains silent with regard to the right to speak to a defendant; it continues to only grant a right to speak to the court. Had the legislature deemed this right to exist certainly it could_hane included same in the recent amendment. Similarlp,-the Rules of Court have been amended several-times since the initial enactment of_the . -Apt 2- 2013 .No.0675 P. 12/69 and the waiver provision remains intact without any conditions precedent. Rule a waiver provision. All parties agree Appellant fully complied. The plain language of the Rule vests the power in the defendant to determine if he wishes to be . present at his sentencing. No decisional precedent binding upon this Court, or otherwise, exists in contravention of the enforcement of the valid waiver. Any cases cited by the Movant below are, at the least, factually distinguishable and neither binds nor should persuade this Court. Under the present. statutory scheme read in conjunction with the Rules of Court and the evolving common law the Appellant's waiver must be honored. The State has cited below to 3; 1:1--2 to demonstrate that the trial court's actions were appropriate in disregarding the standard of-3; The criteria for such a relaxation, as outlined in the Rules of Court have not been satisfied. Public policy reasons are not sufficient to subvert the Rules of Court. Presently the Appellant knowingly and validly waived his right to allocute to the trial court and his right to raise such a denial on appeal. ,the;Mouant, this case will not be'returned.to the trial court on_ tp?tictionsts for *1-"telitf tgisoleloy $on_a_denial of the right to allocute.-" Apr. 2. 2013 7 i . i.N0_0675 13/69 LEGAL ARGUMENT POINT-ONE: THE MOVRNT LACKS STANDING TO FILE The issue of standing requires scrutiny by this Court due to the potential disparate impact of a decision permitting these motions would have on similarly situated defendants throughout 'the state. Both Movant and the trial court cited the New Jersey{ 'Constitution and the Crime Victim's Bill of Rights as codified in New Jersey law at N.J.S.A. 52:43-36 as providing standing to file the motion. IT The panel below did not address the standing issue directly in its opinion. (Aalz) The enplicitly provides victims standing to file' motions under limited circumstances. The victim has; "standing to file a motion or present argument on a motion filed to enforce any right conferred herein or by Article I, paragraph 22 of the New Jersey Constitution." The statute is clear in that standing to file motions exists only in. cases where the victim's rights "conferred herein" are being_ implicated. The opposite is also true; there is no standing to file motions to vindicate rights not specifically conferred by the statute or Amendment.5 The right to compel a defendant's 5A5 the Movant cited below, the court should look to State v. Muhammad 145 N.J. 23, 42-43 (1996) for the proposition that one need not delve deeply into the intent of the statute because the intent is clear. Likewise. the intent to establish the bounds of the privileges within the Amendment is equally clear and the court must_accept that absent superseding precedent that Apt 2. 2013 No.0675i P. 14/69 presence at sentencing or to speak directly to a defendant is not conferred upon victims by the Constitution, statute or common law. Consequently standing does not eaist to attempt to _enforce these cngranted rights via motion practice as was done below. The'NJ?vhoR expressly provides the rights afforded crime victims. Nowhere in that circumscribed statute exists a right to face a defendant in person at sentencing. When addressing sentencinc, the hill specifically enumerates that the Victim has the right to make a statement to the cocrto N.J.S.A. The Appellant has never sought to deny the victim's family the right to make impact statements however neither tacit nor explicit authorization in New Jersey statutes, rules or decisional precedent exists granting the opportunity for the victim to personally address the defendant. Withont any infringement on the rights of the victim, there is no standing for the present motion.' The Movant has cited to State in the Interest of K.P. 311 N.J.Super. 123 (Ch. 1997) to support its claim of standing, this is belied by the facts of K.P.. 'The facts in K.P. are anything not listed within.the Bill or Amendment was_intentiona11y exempted from same. - 5There is no indication of the intended breadth of the victim's rights to bring motions beyond what is specifically enumerated in the statute. To decide otherwise would essentially permit the victim to file motions at any stage of any proceeding if it did not like a strategic tact taken by the state or the defense. - 10 Apr. 2. 2013 No.0675_ P. 15/69 significantly different-from the case at bar} ELEL was the victim of a crime that was being adjudicated in a juvenile court which was restricted from the public. A local newspaper petitioned the court to gain access to the proceeding and report on the case. K.P. was expected to testify in.the matter and the publicity would have a direct impact on her. There the court was concerned about a direct detrimental effect on the victim and thereby construed the legislative intent to confer standing. No such direct effect exists presently since the defendant's absence will not bar the victim from making the impact statement guaranteed by the strictly constructed language of the statute and accordingly neither does standing. The Movant also claimed below that this is not a novel matter in New Jersey jurisprudence. The Rules of Court are updated on a regular basis,iin fact, the Supreme Court Committee on Criminal Practice7 recently released its findings after a close study of the nules of Court-and other criminal issues. Likewise, the New Jersey Legislature and Governor Christie have taken a keen interest in protecting the rights of victims as demonstrated by the August 2012 passage of legislation amending the and enlarging the rights of victims under the 733 this court is certainly aware the Rules are thorough1y_reviewed by the committee which is comprised of Judges, prosecutors and defense attorneys who then submit a report to the Court containing any recommended revisions or other action to be taken. '11 P.d16/69 Apr. 2. 2013% No.0675 statute. Even with all of this recent and activity 3; remains intact and the continues to be silentr with regard to the victin'e ability to compel the presence of the.defendant at sentencing. This cannot be deemed aela mere oversight by these bodies. Accordingly, the interests of justice diotate that the Court must Reverse the decision of the panel below and dismiss this motion as the Movant has not demonstrated that it has standing to bring same. '12 Apr. 2. 2013 I I I P. 17/69 POINT TWO: THE DEFENDANT CONFORMED TO THE RULES OF COURT AND MUST THEREFORE BE PERMITTED T0 WEIVE HIS APPEARANCE AT SENTENCING. Assuming arguendo. that this_ Court, like those below, determines that the Movant does in fact have standing there still exists no binding precedent which would serve to trump the strict permissive language of 3; Appellant has never. and does not presentlf assert that he has a Constitutional right 'to be absent froru sentencing upon his request. Appellant has. consistently argued _throughout the pendency of this motion and the appeals that the trial court is bound to follow the dictates of the Rules of Court which explicitly permit the Defendant to choose whether or" not to attend his sentencing9.. The Rule provides a.process by which a defendant may waite his appearance at sentencing. Here, it is uncontroverted that 'Mr. Tedesco has fully complied with the rule and thus Due Process dictates 'that his waiver be enforced. 3ThiB Court in State v. Morton, 135 N.J. 383 (1998) devoted an entire section of its opinion discussing the constitutionally protected rights of a defendant'to absent himselfi from the trial and other ancillary procedures. Ed; at 434 while the case is factually and legally distinguishable it is a good guidepost for the discussion of the requirements of the defendant's presence and instructive in that it vests the rights within the defendant and judges that the court's role-is to ensure that any waiver is knowing and validly executed . . ?Contrary'to the assertions of the Movant below, Defendant's Due Process rights are not violated by following the established Rules of Court and the procedures authorized therein. This is especially true when the defendant makes and knowing and voluntarily waiver. 13 Am. 2. 2013 No. 0675 P. 18/69 The Movant acknowledges the defendant's authorization, by Court Rule, to" waive his appearance then argues that the discretion to grant the waiver is vested solely within the sentencing court but offers no authority fior this assertion. Movant also argued that the Rule simply establishes a procedure to be followed if the court grants a waiver. This is contrary to the plain reading of the Rule. and is again without any supporting legal_authority." In its papers below, the State has argued that pursuant to R. 1:1--2 that the Rules of Court may be relaxed to ayert an injustice. Sb8" The State also contended that granting Appellant's waiver would be tantamount to turning the court over to the defendant. The opposite would be the actual impact of same as it hwould..be turning the .courtroom <> multiple feccasione ~to.iettemPtu by me1-Mrs of. we gallery>>: alone. the poet .?Buppress- an taltercation e?fidh other 7ihappropriate_fpehayiQr$f described abgyeyififh?re exists a real concern'" _enforcing the waifer of the.defendant, it is the eimplest and practical. action that could he imdertakerin '.by the 'trial I court to.ensure the safety of all of those in attendance and ie_ih strict compliance with the controlling Rules of Court. Movant cited below to the case of- Charles Cullen; a serial killer, who pleaded guilty ih'an arrangement to aVoid_ the death penalty. The Movant claimed that the Cullen '"Thie so concerned the trial court that it egonte provided a police escort'to defense counsel from the court room to his vehicle on multiple occasions including the day of the verdict. . issee attached newspaper article describing the building tension.' 18 No 0675 P. 22/69 . . Apt 2. 2013 0675 decision"; where Judge chose to compel the defendant's presence at sentencing was based on the impact on the absence at victim. survivors of Cullen's proposed. sentencing. Closer inspection of the opinion reveals. that Judge rested his decision, in large part, on the practicality of producing Mr. -Cullen at sentencing. "Reposed within this Court is the obligation to exercise its discretion', and for the trial judge to make a ruling of a practical nature." Cullen Decision at pg. 18". The Court then ruminated over the practical factors to consider in its decision: The Court notes that Mr. Cullen has been incarcerated at the Somerset County jail since the time of.his arrest in_ December 2003. That correctional facility is merely _across the street from this courthouse. Moreover, throughout _this case, the sheriff's officer's staff have encountered no difficulty in ensuring that the Defendant has been able to attend and be present for the numerous. appearances he has made. As such, the Court finds no practical impediments that would require a decision to allow the Defendant to waive his appearance at sentencing. Ed at 18 15An apparent unpublished written decision on a motion which has no precedential or binding authority on this Court and was submitted by the- Movant below unsigned. It is attached to'this Motion at Aa22 17Pursuant to 3; 1:36--3 a copy of this opinion is included in Appendix 19 P. 23/69 Apr. 2. 2013 i - p_ 24/59 The present matter is almost 'diametrically opposed from a flhanifeet it?elf in obviously has been difficulty between the. Defiendant and the Sheriff's Officers. It is clear from his 'opinion that had Judge believed the -transport and/or. production of the defendant to be impractical that he wbuld_have permitted the 8 waiver.' Here, the trial court should have done the same; Mont instructive for the instant case with regard to the Cullen decision is. Judge discussion of the controlling authority and how to properly interpret same. Cullen at 13. "It is axiomatic that in interpreting a legislative enactment the starting point is the Of the statute itself. If the 'language is clear, 'the sole function of the courts' is to enforce it according' to its terms." Cullen. at 13 citing 'Velazquez ujiminez, 172 ZN.J. 'she concludes his rationale with, "Finally, the Court finds no rationale of.a' practical nature that would interfere with Mr. Cullen's appearance. As such, the Court hereby compels Mr. Cullen's physical appearance at Sentencing.' 20 Apt 3- 2013 No.0675 P. 25/69 240, 256 (2002). That is precisely what the defense is requesting be done here. The court continues its analysis, ."while arguably implicit, the Court finds. that no explicit directive can be found in N.J.S.A. 52:43-36, requiring the Defendant's presence at sentencing for the purpose of offering the surviving members of Mr. Cullen's~ homicide victims the opportunity to address both the Court and Mr. Cullen E. at 14. The court left such a decision to the legislature or a higher court to change the law and rule as written. More than seven years later the law and rule have not been so amended. Any review of the applicable law can only lead to the conclusion that a defendant has the privilege to waive his appearance at eentencing as long as he complies with No party disputes-that Appellant complied with the Rule; The victim has heen granted an explicit right to speak at sentencing. This right is exercised through the delivery of an impact statement to the sentencing courtfi" Delivering said statement in the presence of the defendant is not a vested right. Accordingly the decision of the Appellate Division must be reversed. "The 2012 amendment to the actually specifically touched on subparagraph and through the revision the Legislature did not add in any language regarding the presence of the defendant. Such an omission can only be deemed intentional and this. Court should be guided accordingly. 21 Apr. 2. 2013 p_ 25/59 For the foregoing reasons the decision of the Appellate Division must be reversed as Movent did not have _standing to file the present motion and on the merits of said motion;-absent oontravening authority the valid waiver submitted by Appellant is sufficient pursuant to 5; to absent _him from sentencing and still permit the victim to exercise all of the rights guaranteed to her by the and the New Jersey Constitution. Respectfully submitted, IA ULLO attorgf for Appellant 22