                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1677-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

QUENTON C. JACKSON,

        Defendant-Appellant.


              Argued May 2, 2018 – Decided July 10, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              14-03-0622.

              Clifford P. Yannone argued the cause for
              appellant    (Starkey,   Kelly,    Kenneally,
              Cunningham & Turnbach, attorneys; Clifford P.
              Yannone, on the brief).

              Shiraz Imran Deen, Assistant Prosecutor,
              argued the cause for respondent (Joseph D.
              Coronato, Ocean County Prosecutor, attorney;
              Samuel Marzarella, Chief Appellate Attorney,
              of counsel; Shiraz Imran Deen, on the brief).

PER CURIAM
       Defendant Quenton C. Jackson appeals from a January 3, 2017

order denying his motion for a new trial.                  Defendant, convicted

of second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b), was sentenced on November 16, 2016, to a five-year

term of imprisonment subject to five years of parole ineligibility.

       The court granted defendant's request that he be permitted

to represent himself on April 19, 2016, after a comprehensive

Faretta1 hearing.         The judge did, however, direct defendant to

apply to the Office of Public Defender for standby counsel.                     The

application        was   granted,   and       defendant   had   standby   counsel

available throughout the proceedings.

       Jury selection was completed on July 26, 2016.              The following

day, defendant failed to appear. Since defendant had been admitted

to Monmouth Medical Center,2 the judge adjourned the trial until

August 2, 2016.

       On August 1, 2016, defendant failed to contact the court, as

he    had   been    instructed,     or   to    produce    the   documentation    to

corroborate his hospitalizations, and a bench warrant issued for




1
     Faretta v. California, 422 U.S. 806 (1975).
2
   In the transcripts of the proceedings, Monmouth Medical Center
is referred to by its former name, the Paul Kimball Hospital.


                                          2                               A-1677-16T3
his arrest.   He was located on August 2, at Ocean Medical Center,3

just after he had been discharged.        Trial resumed, and the jury

convicted defendant.

      The facts leading to the charge can be described briefly.

Ocean   County   Prosecutor's    Office    Special   Operations     Group

detectives executed a warrant at defendant's residence related to

an ongoing drug distribution investigation.      Officers recovered a

loaded black 9mm semi-automatic pistol from a sock hidden in a

recess near defendant's kitchen cabinets.      Several practice range

shooting targets hung on a wall.

      The detectives conducted a taped interview after defendant

signed a Miranda4 waiver.     He admitted that he lived alone in the

home, but denied any knowledge regarding the handgun.        When asked

about the target practice sheets hanging on the wall, defendant

responded that he had brought them home from a shooting range

where he uses 40mm rounds.

      At the August 2 proceeding, the judge and defendant engaged

in the following exchange:

                THE COURT:   [Defendant], you are present.
           We have had to    have the Sheriff's Department
           bring you in.     It is 11:30. I believe they
           had you here at   around 11. Good morning. We

3
  In the transcripts, Ocean Medical Center is referred to as Brick
Hospital.
4
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                   3                              A-1677-16T3
provided you with some water.    Anything you
would like to say at this point in time?

     [DEFENDANT]: Yeah, Your Honor.    I'm not
feeling well.

     THE COURT: Uh-huh.

     [DEFENDANT]: The Sheriffs came and got
me out of the hospital. That's where I was
at. The day that you called me for documents,
I couldn't get that to you because I was in
the hospital at the time, too.

     THE COURT: All right. Well, do you have
any proof that you were in the hospital or
anything?

     [DEFENDANT]: Yes.

     THE COURT: Well, you can provide that to
the [c]ourt.     And I understand from my
officers that you were released from the
hospital, you were not admitted.

     [DEFENDANT]: Released today.     That was
today.

     THE COURT: Excuse me, I'm talking.
     That they in fact found you at Brick
Hospital after they had been to your house
last night; after they had been to your house
that you had given us your address this
morning. That you were not at either place.
That you were not at Paul Kimball Hospital
this morning where your parents thought you
were. And that they finally tracked you down
at Brick Hospital.
     I'm informed by them that you were not
admitted to the hospital and that you have
been discharged from the hospital. And I have
no proof that you are not capable of
continuing with this trial.
     For the record, you did not in any way
comply with my instructions, both to you by

                      4                          A-1677-16T3
    leaving a message on your phone as well as
    speaking with your girlfriend on a number of
    occasions, to provide the [c]ourt with proof
    that you in fact were admitted to a hospital
    and that you in fact had some diagnosis that
    would not allow you to continue with the
    trial.
         You are here this morning and we are
    ready to proceed.

Defendant contended he could not proceed:

         THE COURT:     Do   you   understand        that,
    [defendant]?

         [DEFENDANT]: No, Your Honor.

         THE COURT: You don't.      All right.        What
    part don't you understand?

         [DEFENDANT]: I don't understand none of
    this.   I'm ill right now and I don't know why
    I'm here. I just got out of the hospital.

         THE COURT: You're here because you
    started the trial and you've been discharged
    from the hospital.

         [DEFENDANT]:   I've     been   back    to     the
    hospital.

         THE COURT: And you haven't communicated
    with the [c]ourt in any way, shape or form
    since last Wednesday.

         [DEFENDANT]: Well, I was in the hospital
    last night, I was in the hospital today.

         THE COURT: You've been discharged from
    the hospital, sir.

         [DEFENDANT]: I was in the hospital last
    night.



                             5                               A-1677-16T3
              THE COURT: You've been discharged from
         the hospital this morning, sir.

              [DEFENDANT]: And I was in the hospital
         in Bricktown today.

              THE COURT: You've been discharged this
         morning.

              [DEFENDANT]: Where I got    picked   up.
         That's where I got picked up.

              THE COURT: So you're not going to
         stipulate that that document shows that you
         had a prior conviction in 2003 which can be
         demonstrated to the jury to indicate that you
         are a prior felon under the statute?     Am I
         correct in assuming that?

              [DEFENDANT]: I can't tell you anything
         right now, sir. I'm not in my right state of
         mind, so.

              THE COURT: All right.   For the record,
         the [c]ourt is looking at the defendant and
         he appears to be sitting sort of properly in
         his chair. He is dressed as he was dressed
         the first day in what appears to be jeans and
         sneakers and a shirt at this time.

    During the Miranda hearing, defendant again claimed he was

unable to proceed:

              THE COURT: [Defendant], any objection to
         the [p]rosecutor playing a redacted version?
         A version that doesn't have many things that
         are in this past statement, I assume. . . .
         You shook your head no, does that mean no,
         [defendant]?

              [DEFENDANT]: I can't even -- I can't
         concentrate. I can't say. I plead the Fifth,
         Your Honor.


                               6                         A-1677-16T3
               THE COURT: Okay.      You can plead the
          Fifth. The [c]ourt, for the record, indicates
          that [defendant], when the portion came up
          about the gun I was observing [defendant], his
          eyes became completely wide open, he became
          interested in what was being said on the
          video.

When asked to comment about the proposed redactions, defendant and

the judge had the following exchange:

               THE COURT: [Defendant], any comment on
          any of that?

               [DEFENDANT]: Yes, Your Honor.    I can't
          represent myself right now at this point.

               THE COURT: And why is that, sir?

               [DEFENDANT]: Because I can't think
          clearly.    My blood pressure is probably
          through the roof right now and anxiety, so.

               THE COURT: Well, I appreciate that. I'm
          observing you all this time. You do not appear
          to be in any distress whatsoever.

               [DEFENDANT]: That's your opinion, Your
          Honor.

               THE COURT: Yes, it is.

               [DEFENDANT]: That's your opinion.

               THE COURT: And I'm just placing on the
          record that I'm observing you and that is
          absolutely my opinion.

     When asked if he wanted to continue to represent himself, or

was willing to allow standby counsel to "step in," defendant

responded that he would prefer to retain his own attorney.      The


                                7                          A-1677-16T3
court observed that defendant's similar request had been denied

the prior week, and that the issue had arisen back in January.

When the January request was made, defendant had contacted an

attorney, but had not actually retained her.                  Because the lawyer

had not yet been retained, the judge refused her request for an

adjournment since the jury was "on its way over to begin [the]

trial."

     Defendant reiterated he could not proceed because of his

health,    and   the   judge   denied       his    request     for   postponement.

Defendant insisted that he could not stand when he addressed the

judge because he might faint "[f]rom the pressure, the high blood

pressure, the anxiety."        The judge observed that defendant was

physically able to fully participate and had repeatedly expressed

his concerns on the record in a manner that corroborated the

judge's perspective that he was fit to proceed.                 The judge added:

"I am again placing on the record that I continue to observe you

and I feel [you are] competent to continue at this time."

     The medical and hospital documentation defendant provided in

support of his application for a new trial stated that he suffered

from anxiety, depression, panic attacks, and high blood pressure.

Although    defendant    had   gone     for       treatment    to    two   different

hospitals, both discharged him after an overnight stay.                            The

medical    documents    included   summaries         finding    defendant     to    be

                                        8                                    A-1677-16T3
generally    in   normal   health,    not   in   need   of   further

hospitalizations.

    In ruling on the motion for a new trial after review of the

documents, the judge held defendant was not prejudiced by being

compelled to try the matter despite his alleged health problems.

The judge said:

            [T]he totality of the circumstances and the
            events   that    occurred,   including    what
            transpired before the trial, what transpired
            with the [c]ourt's impression that there was
            a delay tactic going on by the defendant in
            firing a very competent attorney who had
            obtained, in the [c]ourt's opinion, a plea
            bargain that was beneficial, noting all of the
            evidence    that   was    presented    against
            [defendant], and he denied or decided to not
            take the deal. That he then went into a delay
            mode after that and did everything he could
            after that to try to delay this trial.

                 So I find that, while the motion is
            appropriate, it is out of time. But I will
            still, for the record, indicate that I am
            denying it both for that reason as well as for
            the reasons given as far as that I do not find
            that there was any prejudice to [defendant].
            That I do not find that there has been any
            medical evidence submitted that would show
            that [defendant] in fact was not able to
            participate from a competency standpoint, from
            an ability to understand what was going on,
            from an ability to represent himself in this
            case. To understand that he had the right and
            the ability to question the standby attorney
            that the [c]ourt had appointed, to use the
            services of that attorney if he had any
            questions.



                                  9                          A-1677-16T3
         And I also find that, clearly, based on
    my observations and personal observations of
    the defendant during the trial, that he was
    more than capable and appropriate in preparing
    his defense and presenting his defense and in
    executing both his opening and closing
    statements, his objections to evidence and all
    things that an attorney would have done on his
    behalf.

         Could he have been represented better
    with respect to certain things if he had an
    attorney? I think that's probably true. But
    the [c]ourt does not feel that he has the right
    now to come back and say that certain things
    were not done properly because he was not
    familiar with court rules and things like that
    and that he was too sick to continue. I think
    his own reactions, his own demeanor proved
    that he was capable of proceeding to trial at
    that time. So I deny all of the requests that
    were made on behalf of the defendant at this
    time.

On appeal, defendant raises the following points:

    POINT I
    THE TRIAL COURT ERRED IN DENYING APPELLANT'S
    APPLICATION TO POSTPONE THE TRIAL BECAUSE HE
    HAD EXPERIENCED MEDICAL ISSUES THAT DEEMED HIM
    UNFIT TO PROCEED AS AN INEXPERIENCED PRO SE
    LITIGANT THUS DENYING APPELLANT A FAIR TRIAL
    IN VIOLATION OF HIS DUE PROCESS RIGHTS.

    POINT II
    THE TRIAL COURT ERRED IN DENYING APPELLANT'S
    MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1
    BECAUSE HE WAS REQUIRED TO PROCEED AS AN
    INEXPERIENCED PRO SE LITIGANT SUFFERING WITH
    MEDICAL ISSUES THAT PREJUDICED APPELLANT AND
    DEPRIVED HIM A FAIR TRIAL THUS CAUSING A
    MANIFEST DENIAL OF JUSTICE UNDER THE LAW.




                         10                           A-1677-16T3
                                 I.

     Whether to grant an adjournment of trial due to a defendant's

health difficulties is a matter within the discretion of the trial

court.    State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.

1989); State v. Kaiser, 74 N.J. Super. 257, 271 (App. Div. 1962).

The trial court's decision "will not be deemed reversible error

absent a showing of an abuse of discretion which caused defendant

a 'manifest wrong or injury.'"   McLaughlin, 310 N.J. Super at 259

(quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.

1985)).

     According to the Kaiser court,

           Among those factors deserving consideration by
           the court in the exercise of its discretion
           are medical reports, personal observation of
           the accused, the effect of a continuance upon
           the State's ability to produce evidence at a
           subsequent date, and whether or not the
           accused will be better able to stand trial at
           a later time.

           [74 N.J. Super. at 271.]

We also consider "the clarity of the accused's testimony at trial

and the conduct of the trial court in granting defendant periods

of rest whenever . . . requested."    Ibid. (citing State v. Pierce,

27 P.2d 1087, 1088 (Wash. 1933)).

     Furthermore, a trial court's decision on a motion for new

trial "shall not be reversed unless it clearly appears that there


                                 11                          A-1677-16T3
was a miscarriage of justice under the law."             R. 2:10-1.    We defer

to the trial court with respect to "intangibles" not transmitted

by the record, including credibility and demeanor, but otherwise

make our own independent determination of whether a miscarriage

of justice occurred.        Carrino v. Novotny, 78 N.J. 355, 360 (1979);

Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson

v. Anastasia, 55 N.J. 2, 6-8 (1969); Kimmel v. Dayrit, 301 N.J.

Super. 334, 355 (App. Div. 1997) (quoting Caputa v. Antiles, 296

N.J. Super. 123, 138-39 (App. Div. 1996)).

                                       II.

      Although framed as two separate points of error, defendant

makes essentially the same argument as to both:               that defendant's

health mandated an adjournment.              To the contrary, our review of

the     medical   records     supports       the    judge's   conclusion    that

defendant's health did not warrant a postponement.               No due process

violation     occurred       because     his       application   was   denied.

Defendant's health issues were not disabling, and although he

attempted to be admitted into a second facility when discharged

from the first, he was quickly discharged from that hospital as

well.     The trial judge repeatedly observed that defendant was

responding throughout the trial as capably as could be expected

from a self-represented litigant.



                                       12                               A-1677-16T3
      When we review the Kaiser factors, that analysis supports the

trial judge's decision denying the motion for a new trial.                  The

medical records documented that defendant's medical problems were

not so serious as to impact his self-representation.              The judge

repeatedly observed that defendant's demeanor, attentiveness, and

questions to witnesses established beyond question his ability to

proceed.      Although the State would suffer minimal prejudice in

light of the nature of the charge, defendant's diagnosed conditions

are chronic.        An adjournment would not have made a significant

change to defendant's anxiety, depression, and elevated blood

pressure.     Independently weighing the Kaiser factors, we conclude

the   judge   did    not   err   in   denying   defendant's   motion    for    a

postponement upon his return to court after the execution of the

arrest warrant.

                                      III.

      Defendant's motion for a new trial was made out of time.

However, the judge nonetheless ruled on the merits.              As we have

said, the judge found that defendant's conduct during the trial

was entirely appropriate.         He denied the motion as untimely and

on the merits, and both decisions are supported by the record and

relevant precedent.        The denial of the motion for a new trial was

not a miscarriage of justice.

      Affirmed.

                                       13                              A-1677-16T3
