                                NOT FOR PUBLICATION WITHOUT THE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-2534-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMIE K. HAYES, a/k/a
DUCE DUCE,

     Defendant-Appellant.
________________________

                    Submitted September 17, 2018 – Decided September 3, 2019

                    Before Judges Messano, Gooden Brown and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cape May County, Indictment No. 15-07-
                    0587.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Joshua D. Sanders, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Jeffrey H. Sutherland, Cape May County Prosecutor,
                    attorney for respondent (Gretchen A. Pickering,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a jury trial, defendant Jamie Hayes was convicted on a one-

count indictment charging him with third-degree theft, N.J.S.A. 2C:20-3(a). He

was sentenced to a flat five-year term of imprisonment. The conviction stemmed

from defendant's theft of a woman's handbag at an arcade in Wildwood. The

handbag contained her engagement and wedding rings, which defendant was

later observed wearing. On appeal, defendant raises the following points for our

consideration:

            POINT I

            THE TRIAL JUDGE IMPROPERLY DEPRIVED
            [DEFENDANT] OF HIS CONSTITUTIONAL RIGHT
            TO COUNSEL BY DENYING THE MOTION TO
            RELIEVE COUNSEL.

            POINT II

            THE TRIAL COURT DENIED [DEFENDANT'S]
            RIGHTS OF ALLOCUTION AND PRESENCE AT
            HIS SENTENCING, WHICH REQUIRES A
            REMAND FOR A NEW SENTENCING HEARING. [1]

We reject these contentions and affirm.




1
  Initially, defendant raised three points but later withdrew the first point, which
asserted that the trial judge deprived him of his constitutional right to represent
himself at trial. Thus, we have renumbered the points for clarity.
                                                                            A-2534-16T1
                                         2
                                             I.

        We briefly summarize the facts from the trial record. On April 12, 2015,

a woman reported to police that her handbag was stolen at Mariner's Arcade in

Wildwood. According to the victim, the handbag contained her wedding and

engagement rings valued at approximately $14,000, as well as an Olive Garden

gift card, among other things. The arcade manager provided police with the

surveillance footage from the arcade, which revealed a man leaving the arcade

carrying what appeared to be a woman's handbag. Approximately one week

later, the manager observed an individual he later identified as defendant on the

boardwalk. Believing defendant resembled the man depicted in the surveillance

footage, the manager took a photograph of defendant and provided it to police.

        After seeing the photograph, Wildwood Police Officer Spencer Smith

conducted an investigatory stop of defendant. At the time of the stop, defendant

was "wearing two rings on his [right] pinky finger[,]" and his clothing matched

that of the individual depicted in the arcade surveillance footage as well as "city

surveillance footage" obtained from street cameras.2 After confirming that the

rings on defendant's finger matched the stolen rings, Smith placed defendant




2
    The surveillance footage was played for the jury during the trial.
                                                                           A-2534-16T1
                                         3
under arrest. During a search incident to arrest, Smith found "an Olive Garden

gift card . . . made out to the victim" in "[defendant's] backpack."

      At trial, despite having four prior indictable convictions, defendant

testified on his own behalf. Defendant admitted that he was the person depicted

in the surveillance footage, but denied stealing the handbag. Defendant claimed

a different woman from the victim told him she had lost her handbag and asked

for his help in locating it. According to defendant, when he found the handbag

and "point[ed] it out to [her,]" she rewarded him with "an Olive Garden gift

card." Defendant claimed that the same woman then gave him the two rings in

exchange for twenty-five dollars so that she could "get some gas."

      Following the guilty verdict, the judge imposed a flat five-year prison

term after finding no mitigating factors, and aggravating factors three, N.J.S.A.

2C:44-1(a)(3) ("risk that . . . defendant will commit another offense"); six,

N.J.S.A. 2C:44-1(a)(6) ("extent of . . . defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted");3 and nine, N.J.S.A.

2C:44-1(a)(9) ("need for deterring . . . defendant and others from violating the



3
  In addition to having four prior indictable convictions for weapons and drug
related offenses, the judge pointed out that defendant had "[three] ordinance
violations and [nineteen] disorderly persons convictions[,]" and had received
probationary, county jail and State prison sentences in the past.
                                                                          A-2534-16T1
                                        4
law"). The judge determined "by clear and convincing evidence" that "the

aggravating factors substantially outweigh[ed] the lack of [any] mitigating

factors[,]" and entered a conforming judgment of conviction on January 24,

2017. This appeal followed.

                                             II.

      In Point One, defendant argues that by denying defense counsel's request

to be relieved as counsel after defendant filed a complaint against him, the judge

"deprived [defendant] of his federal and state constitutional rights to counsel."

According to defendant, given the "per se" conflict, "[c]ounsel was forced to

'actively represent[] conflicting interests,' his and his client's." We disagree.

      To lend context to the issue, we recite the pertinent procedural history of

the case.   Throughout the proceedings, defendant's bizarre and disruptive

behavior prompted the judge to take remedial action, including ordering a

psychiatric evaluation of defendant, which found him competent to stand trial,

issuing an extraction order to compel his appearance in court, and, later, ordering

defendant's removal from the courtroom. Defendant continuously filed civil

motions and asserted that his attorney, Thomas Rossell, a pool attorney, was not

representing him properly. Rossell noted that the motions filed by defendant

were "under the federal statutory code[,] . . . administrative code[,] and


                                                                            A-2534-16T1
                                         5
bankruptcy code[,]" and stated that he had "tried to explain to [defendant] that

those . . . areas of law . . . carry no weight in criminal court."

      On numerous occasions, defendant requested that he be allowed to

represent himself, requests that were denied by the judge after questioning

defendant and determining that defendant did not understand the nature and

consequences of his request to waive counsel. 4 See State v. Crisafi, 128 N.J.

499, 509-11 (1992) (outlining the topics a trial court must explore with a

defendant to ascertain whether a defendant's waiver of counsel is made

"knowingly and intelligently"). When the parties appeared on May 3, 2016, for

a pre-trial conference, defendant's disruptive behavior continued. In addition to

speaking over the judge and the attorneys, providing non-responsive answers to

the judge's questions, and refusing to sign the pre-trial memorandum, defendant

renewed his request to represent himself, and, for the first time, noted that he

had "a conflict of interest" with Rossell because he "already filed a complaint

against . . . Rossell" in "the civil division." In response, Rossell indicated that

he could not sign the pre-trial memorandum because he had "just [seen] a lawsuit

filed against [him,]" and would have to consult with superiors at the Office of



4
   Defendant unsuccessfully attempted to file an interlocutory appeal of the
judge's denial of his request to represent himself.
                                                                           A-2534-16T1
                                          6
the Public Defender (OPD). After asking defendant a series of questions and

receiving "[in]coherent" and "[non]responsive" answers, the judge again

determined that defendant was "not capable of representing himself," and set a

trial date.

        Despite the impending trial date, on June 8, 2016, Rossell moved to be

relieved as counsel. In a June 20, 2016 supporting certification, Rossell averred

that "[he] was retained through the Public Defender's office to represent

[defendant,]" but, "from the inception," defendant "has refused to listen to [his]

advice and counsel[,]" and "has resorted to yelling and screaming to drown [him]

out."    Rossell continued that defendant has repeatedly "filed motions to

represent himself[,] . . . as he has done in other jurisdictions," and "filed suit

against [him] on April 27, 2016." According to Rossell, defendant's "attitude"

and "refusal to assist . . . in his defense" has made it "impossible for [him] to

represent [defendant]" and the lawsuit "itself preclude[d] and bar[red him] from

representing [defendant] any further."

        On June 27, 2016, the day trial was scheduled to commence, the judge

denied Rossell's motion. The judge pointed out that Rossell had never been

served with the complaint, and an "unserved" and "[un]answered" complaint was

"not a legal or factual basis to relieve an attorney" who had "not even reviewed


                                                                          A-2534-16T1
                                         7
the contents of the complaint[.]"        The judge found that defendant was

"attempting to manipulate . . . , obstruct . . . , [and] delay the system[,]" but

refused to allow defendant to "control [and] manipulate the process[.]" The

judge noted that Rossell was defendant's second attorney assigned by the OPD,

and reiterated that "[n]otwithstanding the fact that [defendant had] represented

himself" before another judge, there was "nothing in this record" that supported

defendant's present request for self-representation.

      Following the trial, on January 23, 2017, when defendant appeared for

sentencing with his newly assigned attorney, Stephen Patrick,5 while rejecting

defendant's motion for a new trial, the judge expanded on his reasons for denying

Rossell's motion to be relieved as counsel. The judge noted that to support his

motion, Rossell "relied on the public defender's policy" forbidding "counsel to

represent defendant with an active lawsuit filed against him." However, the

judge explained that he was not bound by "any policy of the public defender."

Further, relying on State v. Johnson, 274 N.J. Super. 137 (App. Div. 1994), and



5
  Following the trial but prior to sentencing, defendant sent a letter to the judge,
labeled "pro-se summery judgement [sic]," asserting that the judge violated his
constitutional rights, and "seeking full criminal complaints filed" against the
judge for "treason" and "[i]mpersonating an officer of the court." Defendant
also requested that Patrick be "fire[d]" for "misrepresentation" and "fraud."


                                                                            A-2534-16T1
                                         8
State v. Biegenwald, 126 N.J. 1 (1991), the judge noted that the decision to

relieve counsel was discretionary, and depended upon "considerations" such as

the "proximity of the trial date, [and the] possibility of the client to obtain other

representation." 6 After "consider[ing] the proximity of the trial date, the need

to control [his] calendar, [and] trial counsel's reasons for withdrawing[,]" the

judge found no "reason to alter [his] decision."          The judge also stressed

defendant's continuous "pattern . . . to either delay or impede" the proceedings,

and explained that had he acquiesced to defendant's wishes, he would have ceded

control of his courtroom to defendant, who would have undoubtedly

"continue[d] to file actions[ and] lawsuits."

      We agree that "[t]he decision whether to relieve counsel is committed to

the sound discretion of the trial court, with a presumption against granting the

request[,]" id. at 21, and a trial court has "the power to tightly control its own

calendar so that the assignment of cases cannot be manipulated by the defense

counsel or the defendant." State v. Furguson, 198 N.J. Super. 395, 401 (App.

Div. 1985). However, because "[e]ffective counsel must provide the client with



6
  Previously, the judge had also denied defendant's request for an adjournment
to obtain private counsel because, among other things, despite being released on
bail prior to trial for over one month, defendant "made no effort" to secure
private counsel and "waited until the day of trial to make th[e] request."
                                                                             A-2534-16T1
                                         9
undivided loyalty and representation that is 'untrammeled and unimpaired' by

conflicting interests[,]" conflict-of-interest claims may provide a valid basis to

relieve counsel. State v. Norman, 151 N.J. 5, 23 (1997) (quoting State v.

Bellucci, 81 N.J. 531, 538 (1980)). That is so because "[t]here is no greater

impairment of a defendant's constitutional right to counsel than that which can

occur when his attorney is serving conflicting interests.            The resulting

representation may be more harmful than the complete absence of a lawyer."

Bellucci, 81 N.J. at 538. Thus, "it is incumbent on the courts to ensure that

defendants receive conflict-free representation." State ex rel. S.G., 175 N.J. 132,

140 (2003).

      Without a doubt, "[t]he paramount obligation of every attorney is the duty

of loyalty to his client." State v. Cottle, 194 N.J. 449, 463 (2008). This basic

maxim finds its voice in RPC 1.7(a), which provides that

              (a) Except as provided in paragraph (b), a lawyer shall
              not represent a client if the representation involves a
              concurrent conflict of interest. A concurrent conflict of
              interest exists if:

                    (1) the representation of one client will be
                    directly adverse to another client; or

                    (2) there is a significant risk that the
                    representation of one or more clients will
                    be materially limited by the lawyer's
                    responsibilities to another client, a former

                                                                           A-2534-16T1
                                        10
                    client, or a third person or by a personal
                    interest [7] of the lawyer.

Although the "personal interest" specified in RPC 1.7(a)(2) "is typically

implicated when the lawyer stands to derive some benefit, in addition to a legal

fee, from the matter or transaction with respect to which he or she is advising

the client[,]" Kevin H. Michels, New Jersey Attorney Ethics, § 19:3-2 at 455

(2019), it has been applied in other circumstances where the benefit to the

attorney was not financial in nature, or tied to the particular matter in which he

or she was representing the client.

       For example, in Cottle, our Supreme Court held that "an attorney who is

contemporaneously under indictment in the same county as his client, and being

prosecuted by the same prosecutor's office, is engaged in a per se conflict of




7
    Our Supreme Court has noted that the "sole exception" to the rule

              is when the "client gives informed consent, confirmed
              in writing, after full disclosure and consultation," and
              even then the lawyer may represent a client only if he
              "reasonably believes that [he or she] will be able to
              provide competent and diligent representation to [the]
              client' and 'the representation is not prohibited by law."

              [Cottle, 194 N.J. at 464 (second alteration in original)
              (quoting RPC 1.7(b)).]
                                                                           A-2534-16T1
                                         11
interest, absent a valid waiver by the client[,]" rendering the representation

"ineffective under our State Constitution." 194 N.J. at 473. As the Court noted,

            [a] client charged with a crime places his fate in the
            hands of his attorney, who stands between him and the
            considerable power of the State—a power mostly
            exercised through the office of the county prosecutor.
            The stakes are high in a criminal case with the client's
            freedom often hanging in the balance. With so much
            on the line, an attorney's self-interest should never
            interfere with the duty of unstinting devotion to the
            client's cause. An attorney should never place himself
            in the position of serving a master other than his client
            or an interest in conflict with his client's interest.
            Surely, the attorney must never be perceived as having
            a reason to curry some personal favor with the
            prosecutor's office at the expense of his client.

            [Id. at 463-64 (citation omitted).]

      Likewise, in Norman, the Court "continued to adhere" to the approach

announced in Bellucci that "a per se conflict arises, and prejudice will be

presumed, absent a valid waiver" where "a private attorney, or any lawyer

associated with that attorney, is involved in simultaneous dual representations

of codefendants[.]" Norman, 151 N.J. at 24-25. However, "[i]n all other cases,

'the potential or actual conflict of interest must be evaluated and, if significant,

a great likelihood of prejudice must be shown in that particular case to establish

constitutionally defective representation of counsel.'" Cottle, 194 N.J. at 467-

68 (quoting Norman, 151 N.J. at 25). See State v. Bell, 90 N.J. 163, 171 (1982)

                                                                            A-2534-16T1
                                        12
(holding that if "the circumstances demonstrate a potential conflict of interest

and a significant likelihood of prejudice, the presumption of both an actual

conflict of interest and actual prejudice will arise, without the necessity of

proving such prejudice").

      In State v. Davis, 366 N.J. Super. 30, 33-34 (App. Div. 2004), we

considered "whether a former public defender, . . . now retained by the [OPD]

as a pool attorney" to represent three defendants in separate murder-related

prosecutions, "must be disqualified from that representation because he . . . sued

the OPD and various former and present OPD employees alleging causes of

action arising out of his employment." Noting that RPC 1.7 "govern[ed] the

conflict of interest analysis in th[e] case," id. at 39, we concluded that "no actual

or potential conflict exist[ed]" and that the attorney's "continuing representation

[did] not violate the spirit of the Rules of Professional Conduct[.]" Id. at 48.

Finding no "solid foundation . . . for any claim of disqualifying conflict of

interest[,]" id. at 39, we rejected the State's concerns about the potential for

ineffective assistance of counsel claims as "speculative and thus insufficient to

constitute grounds for [the attorney's] disqualification." Id. at 37.




                                                                             A-2534-16T1
                                        13
      We cited with approval the district court's opinion in Essex County Jail

Annex Inmates v. Treffinger, 18 F. Supp. 2d 418 (D.N.J. 1998). There, the court

recognized that:

                    Because of the virtually limitless cases in which
             a "conflict" may theoretically arise when a lawyer's
             self-interest is implicated, there is a very real danger of
             analyzing these issues not on fact but on speculation
             and conjecture. Accordingly, when a conflict of
             interest issue arises based on a lawyer's self-interest, a
             sturdier factual predicate must be evident than when a
             case concerns multiple representation.            Only by
             requiring a more specific articulation of the facts giving
             rise to a conflict situation can courts refrain from
             effectively "straightjacket[ing] counsel in a stifling,
             redundant . . . code of professional conduct."
             Supposition and speculation, therefore, will simply not
             do.

             [Id. at 432 (first alteration in original) (citation omitted)
             (quoting Beets v. Collins, 65 F.3d 1258, 1272 (5th Cir.
             1995)).]

      New Jersey courts have never explicitly addressed whether a conflict of

interest, per se or otherwise, arises when a criminal defendant files a civil suit

against his defense attorney prior to trial. In a civil matter, a Connecticut federal

district court noted "it is hard to imagine a situation presenting a greater conflict

of interests than an attorney[] being sued by his client for malpractice while still

serving as counsel of record in the underlying action out of which the alleged

malpractice arose." CP Solutions PTE, Ltd. v. Gen. Elec. Co., 550 F. Supp. 2d

                                                                             A-2534-16T1
                                         14
298, 302 (D. Conn. 2008). The court held that "under [those] circumstances

. . . , withdrawal of representation is not only warranted but required." Ibid. In

contrast, in a criminal case, the Court of Criminal Appeals in Texas held that the

trial court's refusal to relieve a defendant's attorney was not error where the

defendant sued his third appointed counsel based on alleged violations of the

Civil Rights Act after already having two prior appointed attorneys removed at

his request. Perry v. State, 464 S.W.2d 660, 663-64 (Tex. Crim. App. 1971).

      In reaching its decision, the Perry court compared the case to Chamberlain

v. State, 453 S.W.2d 490 (Tex. Crim. App. 1970). There, the court held that the

filing of a civil suit by a defendant against a judge who was to preside at that

defendant's criminal trial did not require the judge to disqualify himself. Id. at

492. The court explained that "[i]f the mere filing of a civil action against the

judge presiding at a criminal case would disqualify him, then any judge would

be subject to disqualification at the whim of a defendant. Such practice, if

allowed, could delay or prevent the trial of a case." Ibid. By analogy, the Perry

court reasoned that if the trial court had allowed defendant to remove his third

appointed counsel, he "could effectively delay or prevent an appeal (or trial) by

filing a civil suit against his appointed counsel." 464 S.W.2d at 664.




                                                                          A-2534-16T1
                                       15
      Here, we are satisfied that while there was a potential conflict of interest

created by defendant's unserved complaint against Rossell, there was an

insufficient factual predicate to establish significant likelihood of prejudice to

defendant. Further, there was no significant risk that Rossell's representation of

defendant would be materially limited by his personal interest in violation of

RPC 1.7(a)(2). As we noted in Davis, Rossell's representation would have been

enhanced, rather than limited, because providing substandard performance

"would be contrary to his personal interest, since such conduct could provide

evidence to support" any related lawsuit. 366 N.J. Super. at 41.

      Thus, we discern no abuse of discretion in the judge's denial of Rossell's

motion to be relieved as counsel. As the judge explained and as the Perry court

expounded, relieving Rossell in the circumstances of this case would have ceded

control of the proceedings to defendant, who continued to file frivolous

applications against the judge and his newly assigned attorney even after he was

convicted. We agree with the judge that defendant's pattern evinced a motive to

manipulate, obstruct, and delay the proceedings, a practice that cannot be

countenanced for this or any defendant. Inherent in a trial court's "power to

tightly control its own calendar" is discretion to avoid "manipulat[ion] by the

defense counsel or the defendant." Furguson, 198 N.J. Super. at 401. Moreover,


                                                                          A-2534-16T1
                                       16
there is no indication in the record that Rossell failed to zealously defend

defendant, despite the difficult circumstances defendant created.8

                                             III.

      In Point Two, defendant argues the judge "unconstitutionally denied [him]

his right of allocution" by "remov[ing him] from the courtroom" after "a

disagreement" with his attorney and "then sentence[ing him] in absentia."

Defendant asserts a remand for resentencing is required to allow him "to

complete his allocution of reasons to mitigate his sentence." We disagree.

      On January 23, 2017, defendant appeared for oral argument on a motion

for a new trial filed by Patrick, his third assigned counsel, and for sentencing i n

the event he did not prevail on the motion. During the proceeding, defendant

continued his disruptive behavior by engaging in a largely unintelligible rant

during which he objected to the proceedings, objected to the court's jurisdiction

over him, and objected to Patrick's representation, 9 claiming he had filed a


8
    In addition to objecting to a technical amendment of the indictment,
challenging discovery violations, interposing various evidentiary objections,
and subjecting the State witnesses to grueling cross-examination, Rossell moved
for a judgment of acquittal, pursuant to Rule 3:18-1, both at the close of the
State's and the defense's case.
9
  Among other things, defendant accused Patrick of "committing treason" and
"paper terrorism" and of "violating the Peace and Friendship Treaty of 1778."


                                                                            A-2534-16T1
                                        17
complaint against Patrick in 2007 notwithstanding the fact that he had never

served Patrick with the complaint. When defendant failed to heed the judge's

warning and persisted in interrupting counsel and the court, the judge excused

defendant from the proceeding for being "disruptive and disrespectful to the

[c]ourt and to counsel." Citing Illinois v. Allen, 397 U.S. 337 (1970), the judge

noted there were "at least three constitutionally permissible ways for a trial

judge to handle an obstreperous defendant," including "bind[ing] and gag[ging]"

the defendant, "citing him for contempt[,] or taking him out of the courtroom

until he promises to conduct himself well."          The judge elected the latter

approach, noting that when he "asked [defendant] if he wanted to leave,"

defendant "rambled" and continued his disruptive behavior. Thus, the judge

concluded defendant was "attempt[ing] to obstruct and impede the orderly

proceeding of the court[,]" and had him removed.

      After denying the new trial motion, the judge moved on to sentencing.

Initially, the judge rejected the State's application for the imposition of a

discretionary extended term sentence, notwithstanding defense counsel's




Defendant also objected to the arguments contained in Patrick's brief, submitted
in support of the motion for a new trial, despite the fact that one of the six points
raised as erroneous was the judge's denial of Rossell's motion to be relieved as
counsel.
                                                                             A-2534-16T1
                                        18
acknowledgement that defendant qualified as a persistent offender. See N.J.S.A.

2C:44-3(a). Thereafter, the judge granted a brief recess to allow Patrick to

review the pre-sentence report with defendant, discuss the sentencing

parameters, and elicit defendant's "thoughts about sentencing[.]" When Patrick

returned, he reported to the judge that defendant had no thoughts about

sentencing. According to Patrick, defendant "looked at a couple . . . pages" of

the pre-sentence report and said "well this does[ not] address all the issues I

want raised." Patrick added defendant "had nothing to say except what he[ had]

said here before[,]" and "broke off the conversation," leaving defendant "to bang

his head." The judge was later advised that defendant was returned to the county

jail after he "started banging his head against the holding cell w[a]ll."

      At a sentencing hearing, a defendant has the right to be "present[,]" R.

3:21-4(b), and "the right to allocute, that is to address the court directly, in

connection with his or her sentence." State v. Blackmon, 202 N.J. 283, 297-98

(2010) (citing State v. Cerce, 46 N.J. 387, 393-95 (1966)); see R. 3:21-4(b).

"That right is well-established and has been embodied in our Court Rules." Id.

at 298.   "As such, Rule 3:21-4(b) requires the sentencing court to inquire

specifically of a defendant whether he or she wishes to speak on his or her own

behalf to present information in mitigation of the punishment." Ibid. "The


                                                                            A-2534-16T1
                                       19
defendant may answer personally or by his or her attorney." R. 3:21-4(b).

Indeed, "[s]entence shall not be imposed unless the defendant is present or has

filed a written waiver of the right to be present." Ibid.

      Additionally, Rule 3:16(b) provides:

            The defendant shall be present at every stage of the
            trial, including . . . the imposition of sentence, . . . .
            Nothing in this Rule, however, shall prevent a
            defendant from waiving the right to be present . . . . A
            waiver may be found either from (a) the defendant's
            express written or oral waiver placed on the record, or
            (b) the defendant's conduct evidencing a knowing,
            voluntary, and unjustified absence after (1) the
            defendant has received actual notice in court or has
            signed a written acknowledgement of the trial date, or
            (2) trial has commenced in defendant's presence.

"[W]here there is no express waiver, the touchstone is whether a defendant's

conduct reveals a knowing, voluntary, and unjustified absence." State v. Luna,

193 N.J. 202, 210 (2007).

      In addition to a defendant's right to waive his or her presence, a court is

free to remove a disobedient or belligerent defendant from the courtroom to

maintain order and decorum. See State v. Spivey, 122 N.J. Super. 249, 255-56

(App. Div. 1973) (discussing Allen, 397 U.S. at 343, where the Supreme Court

stated that "trial judges confronted with disruptive, contumacious, stubborn,

defiant defendants must be given discretionary power to meet the circumstances


                                                                         A-2534-16T1
                                       20
of a case" and might bind and gag a defendant, hold the defendant in contempt

of court, or remove the defendant from the courtroom), rev'd on other grounds,

65 N.J. 21 (1974)).     Thus, "[t]he right to be present at trial [, including

sentencing,] is not absolute." Luna, 193 N.J. at 210.

      Applying these principles, we are satisfied that the judge's removal of

defendant from the courtroom during the sentencing hearing was justified.

Throughout these proceedings, defendant persistently interrupted the court,

talked over his attorneys, demeaned his own counsel, and disparaged the court's

authority. Faced with these continuous disruptions, the judge opted to remove

defendant from the courtroom rather than the more extreme remedies of binding

and gagging him or holding him in contempt of court.              When given the

opportunity to conform his behavior so that he could return to the courtroom, or

"present . . . information in mitigation of punishment" to his attorney to relay to

the judge as permitted under Rule 3:21-4(b), defendant banged his head against

the holding cell wall, prompting his return to the county jail.

      We find no error in the judge's response to defendant's continuous unruly

behavior and no basis to intervene. As recognized by the Allen Court:

                  It is essential to the proper administration of
            criminal justice that dignity, order, and decorum be the
            hallmarks of all court proceedings in our country. The
            flagrant disregard in the courtroom of elementary

                                                                           A-2534-16T1
                                       21
            standards of proper conduct should not and cannot be
            tolerated. We believe trial judges confronted with
            disruptive,   contumacious,     stubbornly      defiant
            defendants must be given sufficient discretion to meet
            the circumstances of each case.

            [397 U.S. at 343.]

Here, we find no fault and no abuse of discretion in the manner in which the

judge responded to defendant's disruptive behavior during the sentencing

hearing and throughout the entire proceeding. Moreover, defendant's sentence

is amply supported by the record.

      Affirmed.




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