State v. Frank G. Dellisanti, ? N.J. ?, 2010 N.J. LEXIS 914 (September 20, 2010) – Prior opinion reversing conviction (2010 N.J. LEXIS 387 (April 27, 2010)) withdrawn, conviction affirmed.
“Defendant Frank Dellisanti was not in the courtroom when, during the jury’s deliberations, the trial court responded to two questions posed by the jury and when the jury returned its verdict…. Unfortunately, … the Appellate Division and this Court [initially perceived] that defendant’s absence from the courtroom during the concluding events of the trial was due to circumstances brought about by the execution of an unrelated warrant for his arrest issued in another county…. The facts, as we now understand them, present a defendant who complained of chest pains during a lunch recess and was transported to a local hospital for evaluation, and who made no demand for delay of his trial due to absence either when counsel conferred with the court on the record immediately post-recess, or in any post-trial motion…. Defendant now concedes the factual inaccuracy of his initial appellate claim that the execution of an arrest warrant caused him involuntarily to miss the concluding events of his trial…. Rather, a medical complaint precipitated defendant’s absence from the courtroom. His failure to request a delay of the trial, either immediately through counsel, or to raise the issue of an ‘involuntary’ absence in a post-trial motion, undermines any legitimacy to defendant’s belated and, as originally presented, factually false, appellate claim of a violation to his right to presence. Instead, we perceive defendant’s failure to object or to move post-trial for a new trial based on his courtroom absence as evidencing an acquiescence to not being present for the jury’s return of the verdict. Furthermore, under the circumstances here, we will not presume prejudice to defendant…. Therefore, we reject defendant’s argument that he is entitled to reversal of his conviction based on an asserted violation of his right to presence under Rule 3:16…. This case exemplifies the need for an on-the-record exploration of the reason for a defendant’s mid-trial absence and for a fulsome explanation of the trial court’s basis for ruling out an involuntary reason for the defendant’s lack of presence.”