Opinion
DOCKET NO. A-4315-12T2
01-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH J. FIENGA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-06-1165. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Joseph J. Fienga was tried before a judge, sitting without a jury, and found guilty of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and third-degree theft by purposely obtaining and failing to make required disposition of property received, N.J.S.A. 2C:20-9. He appeals from the judgment of conviction dated March 1, 2013. For the reasons that follow, we affirm.
I.
Defendant was charged under Bergen County Indictment No. 11-06-1165 with second-degree theft of movable property, in an aggregate amount of more than $75,000, contrary to N.J.S.A. 2C:20-3. On November 13, 2012, defense counsel wrote a letter to the trial judge, noting that he had been informed that jury selection in the case was scheduled to begin on November 14, 2012. Counsel stated that, "Please be advised that pursuant to Rule of Court 1:8-1(a), my client, "[d]efendant Joseph J. Fienga, waives his right to a trial by jury." The letter also noted that, in addition to the jury waiver hearing, the judge would also have to address a motion in limine that had been previously submitted.
The following day, the parties appeared in court for a status conference. The following colloquy ensued between the court and defense counsel:
THE COURT: It is my understanding from your correspondence to the [c]ourt your client is waiving a jury. Is that correct?
[DEFENSE COUNSEL]: That is correct, your Honor.
THE COURT: So we'll proceed as a bench trial. We're not going to go today. The plan was to pick a jury today. Obviously we don't have to do that. I'm not going to force anybody to put on witnesses today.The judge then addressed a number of pretrial issues and scheduled the matter for trial.
Defendant, defense counsel, and the assistant prosecutor appeared in court on December 4, 2012. The judge stated that he wanted "to go over a couple of housekeeping items" and address certain matters "on the record[.]" The judge reviewed the State's list of potential witnesses and noted that, "because this is a nonjury trial," he would "have a lot of leeway" in how the trial would proceed.
The judge stated at one point that he would have to make findings on defendant's state of mind. At another point, the judge commented that he was "the trier of fact" and if defendant testified, any prior criminal record he had would be brought out on cross-examination. The judge stated that, if he used such evidence at all, it would only be "for purposes of credibility." Later, in discussing defendant's prior criminal record, the judge commented that he may have to consider it, and noted again that "we don't have a jury to deal with."
The trial began on December 6, 2012. The State presented testimony from six persons who indicated that they had contracted with defendant to make improvements to their homes and paid monies to defendant for the work. The witnesses testified that defendant either failed to do any of the work or did not complete all of the work he was contracted to perform.
They also testified that defendant had refused to refund some or all of the monies paid to him for the work. According to the witnesses, when confronted with the requests for refunds, defendant became belligerent and, in some instances, made threats. After the State rested, the judge denied defendant's motion for a judgment of acquittal.
Defendant then elected not to testify, but called his wife as a witness on his behalf. She said that defendant had been in business for several years, and his company had never had any complaints of the sort mentioned by the State's witnesses. Defendant's wife also indicated that defendant's company was no longer in business.
In his written summation, defense counsel acknowledged that, in his November 13, 2012 letter, he had advised the judge that defendant had waived his right to a jury trial. Counsel stated that defendant "had elected to have the [c]ourt decide both the facts and the application of those facts" in determining whether the State had proven the elements of the charge beyond a reasonable doubt. Counsel noted the judge had determined that defendant had "knowingly and voluntarily" waived his constitutional right to a jury, and the State had not opposed defendant's "application" to waive his right to a jury trial.
The judge issued a written opinion and verdict on January 3, 2013. The judge found, as to three witnesses, that the State failed to prove beyond a reasonable doubt that defendant was guilty of theft pursuant to N.J.S.A. 2C:20-3 or 2C:20-9. The judge further found the State had proven, beyond a reasonable doubt, that defendant was guilty of third-degree theft pursuant to N.J.S.A. 2C:20-9 as to two witnesses, and guilty of third-degree theft pursuant to N.J.S.A. 2C:20-3 as to the one witness. The judge determined that the total amount of the monies that defendant had unlawfully taken or retained totaled $35,689.
II.
Defendant thereafter filed a motion for a new trial or judgment notwithstanding the verdict. Among other things, defendant argued, that he was entitled to a new trial because he had not signed a written waiver of his right to a jury trial, and the court had not conducted a waiver hearing prior to the bench trial. In support of that motion, defendant relied upon the majority opinion in State v. Blann, 429 N.J. Super. 220 (App. Div. 2013), rev'd, 217 N.J. 517 (2014), which was decided after the trial judge rendered his verdict. The State opposed the motion.
The judge considered the motion on March 1, 2013. Over his attorney's objection, defendant was sworn and questioned by the judge concerning the jury waiver. Defendant acknowledged that he had spoken with his attorney about waiving a jury trial before counsel wrote the November 13, 2012 letter to the court. He said he did not have a conversation with counsel as to whether he should proceed with a jury trial or not. The judge asked defendant asked about the letter his attorney sent regarding the jury waiver. Defendant said he did not recall the letter.
The following colloquy ensued between the judge and defendant:
THE COURT: You understood that you had a right to a trial by jury?
[DEFENDANT]: Yes, I did.
THE COURT: And did you understand that a jury would be composed of twelve members of the community of your peers?
[DEFENDANT]: Yes, I did.
THE COURT: You understood that. And . . . you understood that you could participate in the selection of jurors?
[DEFENDANT]: I'm not sure about that. I'm assuming.
THE COURT: Did you have a discussion with [your attorney about] what a jury trial is?
[DEFENDANT]: Yes, but I don't recall him specifically saying you're going to be a part of this, you're going to be allowed to pick who you want on the jury or don't want. I assume he did.
THE COURT: Were you aware that the verdict must be unanimous?
[DEFENDANT]: Yes.
THE COURT: You were aware. All right. And that if you waived a trial by jury were you aware that it would be the [j]udge who would make the decision?
[DEFENDANT]: Yes.
. . .
THE COURT: . . . Now, did you discuss with [your attorney] the advantages and disadvantages of having a jury trial?
[DEFENDANT]: I don't think we specifically discussed that, no.
THE COURT: Do you know . . . that [your attorney] sent a letter saying that you're going to waive your trial by jury?
[DEFENDANT]: Yeah. Yes. We did discuss the pros and cons but I was not aware of a letter. I made an assumption.
THE COURT: Were you aware that he was going to notify the [c]ourt that you waived a trial by jury?
[DEFENDANT]: Yes. I thought that would be at the time that I was going to be questioned by you.
THE COURT: So when you were made aware of that was it your decision based upon your
discussion with [your attorney] to waive a trial by jury?
[DEFENDANT]: Not a hundred percent, your Honor. I assumed, which I obviously maybe assumed too much here in this whole situation[.] I assumed that decision would be made once I guess you were advising me of my rights or whatever it is on the difference between [a jury trial and a bench trial]. I thought that's when I made that decision.
THE COURT: So you knew that the jury would be of twelve members of the community when the letter was written or when the decision was made. Did you know that you were going to have twelve members of a jury?
[DEFENDANT]: Your Honor, what I'm saying is I didn't make any decisions.
The judge stated that he was convinced, by clear and convincing evidence, that defendant had a conversation with his attorney before counsel wrote to the court on November 13, 2012. The judge found that defendant had discussed the pros and cons of a jury trial with his attorney, and defendant authorized his attorney to waive his right to a jury trial and to send a letter to the court waiving that right.
The judge stated that he was also convinced that, even though defendant did not recall receiving the letter, counsel had provided a copy to defendant. The judge said that, when defendant and his attorney appeared in court on the initial trial date, defendant was alerted to the fact that there was not going to be a jury trial. The judge stated that, based on defendant's testimony, he was
satisfied that the defendant was aware that the jury would be composed of twelve members, that he had been advised of the nature certainly of the charges against him. . . . That he had a right to a trial by jury, that he discussed the pros and cons of a jury trial versus a nonjury trial. That . . . notwithstanding his testimony today that he was not aware that he could participate . . . he was aware that he was able to participate in jury selection. That he was aware that all twelve jurors must unanimously vote to convict and that he was aware that if he waived a jury that the [c]ourt would decide his guilt or innocence.
The judge further found that defendant was aware of these considerations on the date his attorney wrote the letter waiving his right to a jury trial. He determined that defendant had waived the jury trial knowingly and voluntarily, and the waiver was tendered in good faith.
The judge denied the motion for a new trial based on defendant's claims that he had not validly waived a jury trial. The judge also denied the motion for a new trial or judgment notwithstanding the verdict on the other grounds asserted. The judge sentenced defendant to three years in prison, imposed certain mandatory monetary penalties, and ordered restitution to the three victims in the total amount of $35,689.
On appeal, defendant raises the following arguments.
POINT ONE
EVEN IF OUR SUPREME COURT OVERRULES THIS COURT'S RECENT DECISION IN STATE V. BLANN, 429 N.J. SUPER. 220 (APP. DIV. 2013), THE CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY GRANTED DEFENDANT'S REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT FIRST ANALYZING THAT REQUEST IN ACCORDANCE WITH STATE V. DUNNE, 124 N.J. 303 (1991).
POINT TWO
IF THIS COURT'S MAJORITY OPINION IN BLANN IS AFFIRMED, DEFENDANT'S ENTITLEMENT TO RELIEF MOVES FROM CLEAR TO UNDENIABLE.
POINT THREE
THE RESTITUTION ORDER SHOULD BE VACATED BECAUSE THE COURT CONCLUDED THAT DEFENDANT IS NOT LIKELY TO BE ABLE TO MEET THE FINANCIAL OBLIGATION.
III.
As we noted previously, the trial judge ruled on defendant's motion for a new trial after this court decided Blann. While defendant's appeal in this case was pending, the Supreme Court reversed the judgment in Blann for the reasons expressed by Judge Lisa in his dissenting opinion. Blann, supra, 217 N.J. at 518 (citing Blann, supra, 429 N.J. Super. at 240-50 (Lisa, J.A.D., retired and temporarily assigned on recall, dissenting)). Therefore, we begin our analysis with the majority's decision in Blann, and Judge Lisa's dissenting opinion.
In Blann, defendant did not sign a written request to waive a trial by jury, as required by Rule 1:8-1(a). Blann, supra, 429 N.J. Super. at 227. However, the trial judge twice addressed the defendant on the record regarding the waiver request. Ibid. The first time was at a pre-trial conference, where the defendant told the court he wanted to have a bench trial. Id. at 227-28. Later, on the first day of the trial, defendant again confirmed that he had waived his right to a trial by jury. Id. at 228. The majority held that there was nothing in the record which would support a conclusion that the defendant had knowingly and voluntarily waived his right to a jury trial. Ibid.
The majority noted that the judge had not engaged in a colloquy with the defendant to ascertain whether he understood his constitutional right to a jury trial "and whether his request to waive that right was knowing and voluntary[.]" Id. at 232. The majority also noted that the judge had not made any findings "to that effect on the record." Ibid. Therefore, the majority reversed the defendant's conviction and remanded the matter for a new trial. Id. at 235.
In his dissenting opinion, Judge Lisa stated that he agreed with the majority's view that the judge's handling of the jury waiver "was inadequate" but he did not agree that reversal of defendant's conviction was warranted under the circumstances. Ibid. Judge Lisa noted that the defendant had "affirmatively and personally advised the court" that, upon the advice of his attorney, he wanted to waive a jury trial. Id. at 237. Judge Lisa stated that this was not a case in which the defendant had merely acquiesced to a bench trial. Id. at 237-38. The waiver issue had been discussed twice. Id. at 238.
Judge Lisa wrote, "The record makes clear that defendant knew he had the right to a jury trial and that he personally expressed his wish to waive that right." Ibid. He noted that if the defendant had signed the waiver request form in use in the county where he was tried, "he would have said in writing no more than he said verbally in open court." Id. at 244.
Judge Lisa added that, notwithstanding his conclusion that the defendant understood his choice and affirmatively chose a bench trial, it would be a better practice if judges engaged in a colloquy with defendants so that the judge could be assured that the defendant "possesses a deeper understanding of the choice he or she has." Id. at 246.
The judge said the Seventh Circuit had adopted a supervisory rule, which requires that, before accepting a jury waiver, the trial court in that circuit must explain to defendants: "'(1) that a jury is composed of twelve members of the community, (2) that the defendant may participate in the selection of jurors, (3) that the verdict of the jury must be unanimous, and (4) that if the defendant waives a jury trial, the judge alone will determine guilt or innocence.'" Id. at 247 (quoting United States ex rel. Williams v. De Robertis, 715 F.2d 1174, 1177-78 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S. Ct. 982, 79 L. Ed. 2d 219 (1984)).
However, other courts have not adopted such supervisory rules. Id. at 247-49 (citations omitted). Indeed, our Supreme Court had "clearly directed that, to be effective, a waiver must be made 'voluntarily, knowingly, and competently." Id. at 249 (quoting State v. Dunne, 124 N.J. 303, 317 (1991)). Judge Lisa concluded that New Jersey's case law
indicates that, putting aside the solemnity that accompanies a written waiver, an oral waiver affirmatively and personally made by a defendant in open court, which expresses substantially the same content as contained in the standard written form, is the functional equivalent of a written waiver. Thus, as long as it is established that a defendant understands the nature of the charges and of his or her right to be tried by a jury and affirmatively expresses his or her wish to waive that right, the waiver is effective.
[Ibid.]
Judge Lisa stated that the record was sufficient to sustain defendant's waiver and affirm his conviction, leaving him with the opportunity to pursue the matter further in a petition for post-conviction relief. Id. at 249-50. The judge also said trial judges should engage in a colloquy with defendant "in all cases" and that colloquy should include "at a minimum, the four fundamental points referred to above." Id. at 250. Judges should also "insist on a signed written waiver form in all cases." Ibid. Judge Lisa suggested promulgation of an official jury waiver request form for use statewide, and consideration of changes to Rule 1:8-1(a) to conform to his suggestions. Ibid.
As we stated previously, the Supreme Court reversed the majority's judgment in Blann, substantially for the reasons stated by Judge Lisa. Blann, supra, 217 N.J. at 518. The Court agreed with Judge Lisa's observation that trial judges should "engage in a more probing 'colloquy with defendants to further be assured that, before granting a waiver, a defendant possesses a deeper understanding of the choice he or she has.'" Ibid. (quoting Blann, supra, 429 N.J. Super. at 246).
The Court took note of the four points that Judge Lisa suggested be included in the written waiver form and discussed during the court's colloquy. Ibid. In the exercise of its supervisory powers, the Court directed that an official jury waiver request form containing those four points be prepared for use and that, at a minimum, trial judges include those four points in assessing the voluntariness of a waiver request. Ibid. (citations omitted).
IV.
We turn then to defendant's contention that the judge in this case erred by finding that he knowingly and voluntarily waived his right to a jury trial. Defendant contends that none of the four fundamental points mentioned in Blann were imparted to him. He says there was no colloquy with defendant whatsoever until the judge conducted his post-verdict inquiry of defendant. We are convinced that the record supports the trial judge's determination that defendant validly waived his right to a jury trial.
Here, defendant did not sign a formal jury waiver request. However, his attorney sent a letter to the court dated November 13, 2012, which stated unequivocally that defendant was waiving his right to a jury trial pursuant to Rule 1:8-1(a). The judge found that defendant had discussed the pros and cons of having a jury trial with his attorney before that letter was sent. The judge also found that defendant had authorized his attorney to write to the court and waive his right to a jury trial. We defer to these findings because there is sufficient credible evidence in the record to support them. State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted).
Even if the letter was not tantamount to a written waiver request pursuant to Rule 1:8-1(a), there also is sufficient credible evidence in the record to support the judge's finding that defendant knowingly and intelligently waived his right to a jury trial. As the record shows, the day after defense counsel sent the letter to the court, defendant appeared in court with his attorney, and defense counsel confirmed that defendant had waived his right to a jury trial. The judge indicated several times that he would be deciding the matter, not a jury. Furthermore, on the day before the trial began, the judge again raised the issue and, with defendant present, defense counsel confirmed that defendant had agreed to waive his right to a jury trial.
At no point did defendant express any disagreement with the representations his attorney made to the court. Although the court did not ask defendant to state on the record that he agreed with his counsel's representations, the trial judge did not err by accepting those representations, which were first made by counsel in writing, with a copy to defendant, and later made twice in court, in defendant's presence.
Defendant argues, however, that the trial judge erred by failing to undertake a colloquy with him concerning his waiver request before the trial. He argues that the judge should have questioned him on the "four fundamental points" outlined by Judge Lisa in Blann. Id. at 250. As noted, in the exercise of its supervisory responsibilities, the Supreme Court has required the promulgation of an official jury waiver form, incorporating the four points, as Judge Lisa suggested. Blann, supra, 217 N.J. at 518. However, when defendant waived his right to a jury trial in this case, there was no requirement that the judge question him on the aforementioned four points.
Indeed, at that time, the judge was merely obligated to consider the factors enumerated in Dunn, supra, 124 N.J. at 303. There, the Court noted that a criminal defendant does not have an absolute right under the federal or state constitutions to demand a non-jury trial. Id. at 309. The trial court must determine whether the defendant has "voluntarily, knowingly, and competently" waived his right to a trial by jury. Id. at 317. The court also must consider whether the waiver was made in good faith, and other factors relevant to whether a jury trial is require to maintain the public's confidence in the criminal justice system. Ibid.
Here, the trial judge properly found that defendant had "voluntarily, knowingly, and competently" waived his right to a jury trial and the record supports that finding. While defendant argues that the judge erred in relying upon a post-trial colloquy as a basis for this finding, the fact remains that, until defendant filed his motion for a new trial, the judge was not aware that defendant was arguing that a bench trial should not have been held. Indeed, as we have pointed out, in his post-trial submission, defense counsel again confirmed that defendant had elected to have a trial before a judge, sitting without a jury.
Furthermore, defendant's statements in the post-trial colloquy made clear that he waived his right to a jury trial "voluntarily, knowingly, and competently." He indicated that he had discussed the matter with his attorney. He said that he was aware that, if the matter was tried before a jury, the jury would be composed of twelve individuals. He said he knew that, if a bench trial was conducted, the judge would decide if he was guilty of the charged offenses. He also admitted that his attorney discussed with him the pros and cons of a jury trial. Based on defendant's testimony, the judge properly found that defendant's waiver was valid.
We note additionally that in State v. Jackson, 272 N.J. Super. 543 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995), we upheld the defendant's waiver of his right to a jury trial. Id. at 551. The defendant had signed the jury waiver request form, and his attorney advised the court that he had discussed the matter with his client. Id. at 548-49.
The prosecutor consented to the waiver, and the judge questioned the defendant on the record. Id. at 548-49. Defendant stated that he signed the form, and he wanted to waive a jury trial. Id. at 549. We upheld the waiver, noting that the validity of a waiver should be decided based on the totality of circumstances. Id. at 550.
We are convinced that, in this case, there is sufficient credible evidence in the record to support the trial judge's conclusion that defendant knowingly and voluntarily waived his right to a jury trial. The trial judge considered the totality of the circumstances and properly found that defendant validly waived a jury trial. If defendant wishes to pursue the matter further, he may do so in a timely-filed petition for post-conviction relief.
V.
Defendant also argues that the judge erred by ordering him to make restitution in the aggregate amount of $35,689. Defendant contends that restitution should not have been ordered because the judge suggested that defendant could not pay the amounts ordered. We disagree.
The court is required to order restitution to a victim who has suffered a monetary loss, provided "the defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(1), (2). In addition, the court must "set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2c(2).
In determining whether a defendant has an ability to pay restitution, the court "should look beyond the defendant's current assets and anticipated income during the period of incarceration." State v. Bolvito, 217 N.J. 221, 234 (2014). The court may consider "a defendant's educational background and employment history[, which] may affect his or her potential to achieve post-incarceration employment and a steady income[.]" Ibid. A defendant's ability to pay must be "assessed over the long term." Ibid.
Here, the trial judge conducted an ability-to-pay hearing. Defendant testified that he was employed and earned a gross monthly income of $3600. He claimed to have monthly expenses of $3500. Defendant said that he was going to obtain housing through the Veterans Administration. He said that an outstanding medical debt of $12,000 had been settled, and, as a veteran, he would not have to pay medical expenses. Defendant also said he has an outstanding car loan of $2400. He has no assets. He said, however, that he could borrow money from members of his wife's family to pay restitution.
The judge reviewed defendant's finances and said that he was "not willing to take blood out of the stone." The judge ordered restitution, but noted that the victims might never receive any monies. He commented that, perhaps defendant "would strike it rich at the lottery." The judge stated that, at least for purposes of the judgment of conviction, the victims "are entitled to restitution."
We are convinced that the record supports the judge's findings. The judge considered all of defendant's finances and whether defendant had the ability to pay "over the long term." Ibid. As the record shows, defendant was employed. He was capable of earning income and had little debt. He also had the ability to borrow monies from family members.
The judge's observation that the victims might not receive any monies did not reflect a determination that defendant did not have the ability to pay the amount ordered. In addition, the reference to the fact that defendant might someday win the lottery was not improper. See State in the interest of R.V., 280 N.J. Super. 118, 122-23 (App. Div. 1995) (noting that when setting restitution, a person's future prospects may be considered including the potential for winning the lottery or a jackpot at a casino).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION