State v. Crisafi

• Decision Date: 22 April 1991
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph CRISAFI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 486

247 N.J.Super. 486

589 A.2d 1033

STATE of New Jersey, Plaintiff-Respondent, v. Joseph CRISAFI, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 8, 1991.

Decided April 22, 1991.

Pamela Lynn Brause, designated Counsel, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney, Pamela Lynn Brause, Metuchen, of counsel and on the brief).

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney, Marijean Raffetto Stevens, Deputy Atty. Gen., of counsel and on the brief).

Joseph Crisafi filed a pro se supplemental brief and an addendum to that brief.

Before Judges ANTELL, O'BRIEN and KEEFE.

PER CURIAM.

Defendant appeals from his conviction of two counts of first degree aggravated sexual assault ( N.J.S.A. 2C:14-2), first degree armed robbery ( N.J.S.A. 2C:15-1), second degree aggravated assault ( N.J.S.A. 2C:12-1b(1)), fourth degree possession of a weapon (a letter opener) under circumstances not manifestly appropriate for a lawful purpose ( N.J.S.A. 2C:39-5d), and second degree possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a), upon which he received an aggregate sentence of 45 years with a 22 1/2 year period of parole ineligibility. We reverse and remand on condition, because the trial judge failed to determine whether defendant had knowingly and intelligently waived his constitutional right to counsel.

After he was indicted on December 4, 1980, defendant became a fugitive. He was finally located in and extradited from Texas in 1986. He was convicted on December 17, 1987, and sentenced on March 7, 1988. On this appeal, defendant raises the following legal arguments:

POINT I The defendant was denied his right to counsel when the court failed to determine he had knowingly and intelligently waived that right.

POINT II The prosecutor's reference to the defendant's pro se representation was improper.

POINT III The court erroneously limited the defense cross examination of the state's key witness, [the victim].

POINT IV The state failed to prove that the defendant's prior convictions were admissible to affect his credibility and should have been excluded by the court.

POINT V The court's failure to charge the jury on the lesser included offenses of criminal sexual contact and sexual assault was erroneous.

POINT VI The court's failure to excuse the juror who admittedly knew a witness in the case was error.

POINT VII The sentence imposed on the defendant was both improper and manifestly excessive.

In a supplemental pro se brief, defendant raises the following additional legal arguments:

Point I DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION AND THE PRODUCTION OF WITNESSES.

Point II POSSESSION OF A HANDGUN FOR UNLAWFUL PURPOSES AND POSSESSION OF A LETTER OPENER FOR UNLAWFUL PURPOSES REQUIRE SEPARATE VERDICTS.

Point III DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE COUNTS ONE AND TWO WERE NOT MERGED WITH COUNT FOUR.

In an addendum to his supplemental pro se brief, defendant raises as a fourth point:

Point IV DEFENDANT'S SENTENCE IS EXCESSIVE AND IT WAS NOT IMPOSED ACCORDING TO PROPER SENTENCING.

We agree with defense counsel's first legal argument since the trial judge failed to determine whether defendant knowingly and intelligently waived his right to counsel. In spite of the substantial evidence of defendant's guilt and the unfortunate circumstance that reversal of the convictions will necessitate retrial of an event which occurred more than ten years ago and again put the victim through the horror of the event, we are obliged to reverse and remand for a new trial based upon applicable state court precedents and opinions of the United States Supreme Court.

Since reversal is required, it is unnecessary to detail the facts which gave rise to the charges. Suffice it to say that according to the evidence the victim was subjected to substantial aggravated assault, aggravated sexual assault, and other offenses at the hands of defendant. However, we detail the circumstances leading up to defendant's trial as they relate to representation by counsel.

I.

After extradition from Texas, defendant entered a not-guilty plea on March 13, 1987. On that date, he was represented by Mr. Fullilove, an attorney from the public defender's office, although he argued some motions pro se. Defendant next appeared before the trial judge on April 10, 1987, again accompanied by Mr. Fullilove, who advised the court that defendant had presented a letter stating that Mr. Anthony Blasi had been appointed as his pool attorney, but apparently Mr. Blasi chose not to represent defendant.

On May 22, 1987, defendant and Mr. Fullilove again appeared before the trial judge and the following exchange took place:

THE COURT: Mr. Crisafi, we have Mr. Fullilove who, I understand, has been designated to represent you.

* * * * * *

THE DEFENDANT: I decline representation of this counsel at this time. I have--

THE COURT: You mean you want to represent yourself?

THE DEFENDANT: No, not really. I would like representation, and if it's necessary, I will go in pro se rather than--

THE COURT: It's up to you, but I'm not going to allow you to make a choice as to who is going to represent you.

THE DEFENDANT: All right, Your Honor, then I will represent myself.

THE COURT: That's up to you. I will have to ask counsel to sit by to assist you with whatever technicalities of the law you may be advised of. I will hear you.

Later on that same day, the court indicated to Mr. Fullilove at side bar:

THE COURT: He is going to make his choice. I can't let him decide who's going to represent him in the Public Defender's Office. He is not going to have that choice, and I will tell him that. He either has to decide that he's going to try it himself, with a Public Defender assisting him in the technical aspects, or he will be bound by a lawyer representing him. I won't play games with him, and I'm going to make it clear.

The judge then advised defendant to make his decision by May 27, stating:

... I must know by Wednesday afternoon whether there will be representation by counsel for you or whether you will be trying this case yourself with the technical assistance of an attorney assigned to sit in with you. So that I will not carry this any further.

On several subsequent appearances before the trial court, defendant was accompanied by Jed-Matthew D. Philwin, Esq., who said he was acting on behalf of the public defender's office. At some of those appearances, defendant argued pro se, and on others he asked Mr. Philwin to argue on his behalf.

On December 7, 1987, defendant appeared before the court pro se, although Mr. Philwin was also present, and the following exchange took place:

THE COURT: Before we proceed, Mr. Crisafi, I want to clear the air as to one point. Some time ago there was a discussion held in this Court at which time you indicated you did not want Mr. Fullilove. Do you remember?

MR. CRISAFI: Absolutely.

THE COURT: And I told you that the Court at that time had contacted the Public Defender's Office to obtain new counsel for you and they said they would not, that you were obligated to take Mr. Fullilove or go pro se. And I mentioned that to you and you said that being the case you would go pro se.

MR. CRISAFI: No, I did not, sir.

THE COURT: All right. I think the record will indicate otherwise. I think the record indicates otherwise. I never would have proceeded.

MR. PHILWIN: Your Honor, if I may intercede here. I had spoken with Mr. Crisafi about a week and a half ago and I don't know exactly what the words are going to be on the record, but he indicated to me that he felt that he was being forced to go pro se. He said he just didn't want to have Mr. Fullilove as his attorney.

* * * * * *

MR. CRISAFI: I feel that I'm being denied my right to counsel.

THE COURT: No, you are not. That's the law.

* * * * * *

MR. CRISAFI: I am being forced to try it. There is no other alternative.

THE COURT: No, you are not being forced. It is an election you are making. I am telling you that the Public Defender will not assign. Your argument is with the Public Defender, not with me.

MR. CRISAFI: I realize that, your Honor.

THE COURT: If you are willing to have Mr. Philwin try this case for you as your attorney, he has indicated that he is willing to do so if we requested.

* * * * * *

THE COURT: I have no choice but to say then the case will go on with Mr. Philwin sitting in to advise you as to the technicalities of the law.

MR. CRISAFI: If that's all I have.

On December 9, 1987, the court made the following inquiry of defendant:

THE COURT: ... Another question I want to ask you, I want you to fully understand that if it is your intention to try the case yourself with Mr. Philwin sitting alongside to advise you as to the rules and court procedures, you're going to be treated just as if I'm treating any other attorney practicing here. You're subject to the rules of court. Do you understand that?

MR. CRISAFI: Fully.

THE COURT: And I want to find out now if it is your intention to represent yourself or whether you want Mr. Philwin to try this case for you.

MR. CRISAFI: If I may be permitted to repeat myself. I'm sure Mr. Philwin is competent. I do not agree in Mr. Philwin's line of defense on my behalf. Therefore I cannot have Mr. Philwin represent me.

THE COURT: I would like counsel--

MR. CRISAFI: I feel I need counsel.

Thereafter, the trial began on December 10, at which defendant represented himself pro se with Mr. Philwin sitting in to advise him.

II.

The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel in order to protect his fundamental right to a fair trial. Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562, 572 (1975). The New Jersey Constitution...