STATE V. REEVEY A-5316-08T4 12-13-10

STATE V. REEVEY A-5316-08T4

We affirm the denial of post-conviction relief based on alleged ineffective assistance of counsel, who failed to secure defendant's presence in the courtroom during an allegedly critical stage of the proceedings. During a break in jury selection when defendant was not in the courtroom, the judge conducted a hearing to determine whether a material witness intended to appear and testify. The witness, who was in the courtroom, was placed on the witness stand and examined with respect to his intention to comply with the subpoena allegedly issued to him. Although denying receipt of a subpoena, the witness indicated he would appear and testify if a subpoena were served upon him. The judge then briefly questioned the witness respecting the statement he gave to the police and concluded from the witness's answers that a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), was required and would be conducted in defendant's presence. Defendant was brought into the courtroom, and the Gross hearing was then conducted.

In his PCR petition, defendant raised multiple issues, which the PCR judge determined adversely to defendant. On appeal, defendant raised only the issue of his absence from the material-witness hearing, which he characterized as "a critical stage of the proceedings." Because this was an issue that could have been raised on direct appeal, we considered whether enforcement of the Rule 3:22-4 bar to preclude this claim would result in fundamental injustice. R. 3:22-4(a)(2).We found that the witness's testimony outside defendant's presence concerned only his obligation to testify at trial and whether he recalled the content of the statement he had given to the police. We noted that defendant was present for the Gross hearing and his counsel had an opportunity to cross-examine the witness at that time, including the very issues raised outside of defendant's presence. As a consequence, we found that there was neither an injustice nor a substantial denial of defendant's rights because his absence did not affect the fairness of the proceeding.