WEBVTT 2 00:01:14.789 --> 00:01:18.154 HAVE APPEARANCES OF COUNSEL. MONICA DO OUTEIRO: ASSISTANT PROSECUTOR ON BEHALF 3 00:01:18.154 --> 00:01:29.641 OF STATE. NATHANIEL F. RUBIN: FOR THE ATTORNEY AGAIN. ROBIN KAY LORD: 4 00:01:29.641 --> 00:01:44.032 ON BEHALF OF JESUS R. REYES-RODRIGUEZ ON BEHALF. MOLLY K.C. LINHORST: FOR AMERICAN 5 00:01:44.032 --> 00:01:47.695 CIVIL LIBERTIES UNION OF NEW JERSEY. CHIEF JUSTICE RABNER: JUGS AI PRELIMINARY 6 00:01:47.695 --> 00:01:54.118 OBSERVATION FOR COUNSEL HERE AND THE 6 GIFT COUNSEL WHO ARE THERE LINING UP FOR THE NEXT 7 00:01:54.118 --> 00:02:07.027 ARGUMENTS. THIS IS A NUMBER OF THE ARGUMENTS THAT HAVE BEEN ADVANCED HEADED IN THE 8 00:02:07.027 --> 00:02:11.660 DIRECTION BEYOND THE PARTICULAR FACTS THAT ARE PRESENTED BY THE CASE. AND I'D ASK THE 9 00:02:11.660 --> 00:02:16.496 PARTIES TO HAVE PH IN MIND THAT OUR FOCUS IS ON THE PARTICULAR ISSUES THAT HAVE BEEN RACE 10 00:02:16.496 --> 00:02:22.413 UNDER AND WE MAY NOT NECESSARILY HRAUFRPBLG INTO VARIOUS OTHER BROAD ARER THEMES THAT 11 00:02:22.413 --> 00:02:28.564 EMANATE FROM OUR FACTS PLEASE HAVE THAT IN MINDS AND IF WE TRY TO TRIM YOU OR TRY TO 12 00:02:28.564 --> 00:02:33.263 EXPAND UNDERSTAND WE'RE DOING SO WITH OUR FOCUS ON TODAY'S CONCERNS IN FRONT OF US. MR. 13 00:02:33.263 --> 00:02:41.700 DO OUTEIRO. MONICA DO OUTEIRO: THANK YOU YOUR HONOR AND IF I MAY JUST RESERVE 14 00:02:41.700 --> 00:02:45.507 SOME TIME FOR REBUTTAL IF NEEDED. CHIEF JUSTICE RABNER: THAT'S FINE. 15 00:02:45.507 --> 00:02:50.718 MONICA DO OUTEIRO: THANK YOU. USUALLY WHEN THE STATE COMES BEFORE THIS COURT WITH A PROBLEM 16 00:02:50.718 --> 00:02:55.450 IT ALSO COMES WITH WA IT BELIEFS TO BE A COMPLETE SOLUTION TO THE PROBLEM. THE ISSUE 17 00:02:55.450 --> 00:03:01.158 THEN ONLY BEING WHETHER THE COURT AGREES OR NOT WITH THE STATE'S SECLUSION. LOPEZ-CARRERA 18 00:03:01.158 --> 00:03:06.511 AND IMMIGRATION LANDS ESCAPES THE STATE CANNOT DO SO IN THIS CASE. THE STATE CANNOT OFFER 19 00:03:06.511 --> 00:03:12.819 THIS COURT A PERFECT SECLUSION THAT WILL FIX ALL OF THE ISSUES A-ATTEND WITH THE PROSECUTION 20 00:03:12.819 --> 00:03:18.209 OR SUBJECT TO REMOVAL BY FEDERAL IMMIGRATION AUTHORITIES. HAOEFP SOLUTION ADOPTED BY 21 00:03:18.209 --> 00:03:23.227 THE LOWER COURTS THEISH SWANS OF A BENCH WARRANTS BY THE TRIAL COURT OR ALLOW THE DEFENDANT 22 00:03:23.227 --> 00:03:29.395 TO APPEAR SRAOURTLY IS OFFERED BY THE APPELLATE DIVISION COMES WITH DOWN SIDES OF 23 00:03:29.395 --> 00:03:33.939 CONSTITUTIONAL I AM IMPORTANT THE STATE IS NOT IGNORANT THE FUTURE POTENTIAL TOR SPEEDY 24 00:03:33.939 --> 00:03:40.059 TRIAL ISSUED CREATED BY THE BENCH WARRANTS. THE ISSUANCE OF A PWARPT RECOGNIZES THAT A 25 00:03:40.059 --> 00:03:45.064 JURISDICTION OF NEW JERSEY IS NECESSARY TO COMPLETE THE CRIMINAL JUSTICE PROCESS. WHICH 26 00:03:45.064 --> 00:03:49.806 IS NOT ENDS WITH THE INJURE'S VERDICT BUT WITH SENTENCE BEING AT WHICH VICTIMS ARE PERMITTED 27 00:03:49.806 --> 00:03:54.862 FOR THE FIRST TIME TO SPEAK TO THE COURT AND THE DEFENDANT ABOUT THE EXACT OF CRIME AND 28 00:03:54.862 --> 00:03:59.886 WHICH DEFENDANT RECEIVES AN APPROPRIATE PUNISHMENT FOCUSED ON THE CRIME COMMITTED AND 29 00:03:59.886 --> 00:04:07.037 NOT THE DEFENDANT'S LOCATION. USUAL AOU OF A SPAPBT PRESERVES THE STATE ABILITY IN 30 00:04:07.037 --> 00:04:12.573 APPROPRIATE CASES IF THERE'S BEARS MENTIONING THAT A WARRANTS THE THING DEFENDANT WAS 31 00:04:12.573 --> 00:04:19.340 OPPOSING BEING ENTERED IS A PREREQUISITE FROM THIS DEFENDANT'S HOME COUNTRY IN USUAL WITH ANS 32 00:04:19.340 --> 00:04:24.835 OF A BENCH WARRANTS ENSURES INCLUDING THOSE THAT UNLIKE THIS DEFENDANT DO NOT HAVE ACCESS 33 00:04:24.835 --> 00:04:30.657 TO THE TECHNOLOGY AND INTERNATIONAL CAPABILITIES MINIMALLY NEED FOR VIRTUAL TRIAL APPEARANCE. 34 00:04:30.657 --> 00:04:35.829 THE SOLUTION PROFFERED BY THE APPELLATE DIVISION VIRTUAL BY A DEFENDANT AT TRIAL KERNELS 35 00:04:35.829 --> 00:04:41.902 THE STATE. THIS STATE WORSE THAT IT'S NOT THE PANSY THAT THE APPELLATE DIVISION BELIEFS 36 00:04:41.902 --> 00:04:45.799 JUST BECAUSE THERE'S A COURT RULE RECENTLY RECOLLECT THIGHSING THE POTENTIAL FOR VIRTUAL 37 00:04:45.799 --> 00:04:51.544 TESTIMONY BY A WITNESS DOES NOT MEAN THAT OUR COURTS ARE CURRENTLY CAPABLE OF PHEUPL YOU 38 00:04:51.544 --> 00:04:58.197 I CAN BEING VIRTUALLY ALL THE DEFENDANTS PRESENT IN COURT AS RECOGNIZED BY RULE 316B REQUIRES. 39 00:04:58.197 --> 00:05:04.231 EVEN DURING THE COVID PANDEMIC WHICH THE PRESSURE TO RESTART COURT OPERATIONS WAS GREAT 40 00:05:04.231 --> 00:05:10.484 AND METHODS A NECESSARY SOLUTION THIS COURT NEVER PERMITTED VIRTUAL TRIALS. THIS COURT 41 00:05:10.484 --> 00:05:17.602 ORDER REOPENING COURT PROVED TO BE THE ENDS OF THE PANDEMIC STILL DIRECT CRIMINAL TRAOEURLS 42 00:05:17.602 --> 00:05:23.306 TO BE IN PERSON STEPS MADE DURING THE PANDEMIC A-INTO CRIMINAL PROSECUTIONS STOPPED AT 43 00:05:23.306 --> 00:05:28.227 VIRTUAL GRAND JURY WHERE THE DEFENDANT IS NOT PRESENT AND SEMI VIRTUAL JURY VOIR DIRE 44 00:05:28.227 --> 00:05:34.436 AND THOSE STEPS ONLY CAME AFTER CAREFUL DELIBERATION INPUT FROM POLITE PROGRAMS. 45 00:05:34.436 --> 00:05:38.936 THESE EFFORTS FOCUSED ON APPROPRIATE LEGAL TESTS OR THE POSSIBILITY FOR INCORPORATING VIRTUAL 46 00:05:38.936 --> 00:05:43.584 APPEARANCE THEY FOCUSED ON THE FEES BUILT ABPRACTICE KALTS OF VIRTUAL APAOERPBLS. AND 47 00:05:43.584 --> 00:05:50.974 THEY UNCOVERED DIS PARTS CAUSED BY ACCESS TECHNOLOGY AN. THE STATES SUBMITS THAT THIS 48 00:05:50.974 --> 00:05:55.983 COURT MUST ADDRESS BEFORE IT CAN DETERMINE AN APPROPRIATE TEST FOR WHICH DEFENDANTS SHOULD 49 00:05:55.983 --> 00:06:01.681 BE ALLOWED TO APPEAR FOR TRIAL IS WHETHER WE CAN FAIL CONSTITUTIONAL VIRTUAL TRIAL APPEARANCE 50 00:06:01.681 --> 00:06:08.334 BY A DEFENDANT. THE STATE PLEA OFS THE ANSWER TO THIS QUESTION CAN BE DO THIS FAIRLY 51 00:06:08.334 --> 00:06:17.831 AN AI PRACTICAL ONE AND POLITE PROGRAMS FOR A DECISION DRAFTED. THE TESTIMONY CONTEMPLATED 52 00:06:17.831 --> 00:06:22.714 BY RULE AN CASE LAW IN COURT ORDER IS NOT A EQUIVALENT TO THE PRESENCE OF DEFENDANT AT 53 00:06:22.714 --> 00:06:27.808 TRIAL. DETERMINATION OF WHETHER WE CAN DO THIS REQUIRES CONSIDERATION OF AT LEAST FIVE 54 00:06:27.808 --> 00:06:31.329 ISSUES THAT THE STATE CAN SEE AND THAT WERE NOT A-ADDRESSED BY THE APPELLATE DIVISION. 55 00:06:31.329 --> 00:06:38.771 FIRST ENINSURING PRESENTS AT TRIAL ARE YOURS A PRACTICAL FOR THE HROPBL IS TICK WHETHER 56 00:06:38.771 --> 00:06:44.458 THAT IS TECHNOLOGICAL OR ANALOG DO WE GIVE MORE BREAKS IT REQUIRES ADDRESSING HOW TO ENSURE 57 00:06:44.458 --> 00:06:50.860 A DEFENDANT IS PRESENT AT SIDEBAR CONFERENCES CAN THE TECHNOLOGY BE IMPORTED TO THE VIRTUAL 58 00:06:50.860 --> 00:06:55.712 SETTING. IT REQUIRES HAVING A PROCEDURE FOR WHO AND HOW TO MONITOR DEFENDANT'S VIDEO 59 00:06:55.712 --> 00:07:02.822 FEED TO ENSURE HIS PRESENCE AND HANDLE ANY GLITCHES IN TECHNOLOGY THAT WOULD DEPRIVE 60 00:07:02.822 --> 00:07:06.701 PRESENT IT HERRING TESTIMONY AND WITH THAT SHOULD BE DONE IN OR OUT OF THE JURY'S PRESENCE. 61 00:07:06.701 --> 00:07:13.185 IT NEEDS TO ADDRESS SOLUTIONS TO DIS PART IN DEFENDANT'S INCLUSIVE-WHO'S BURDEN IT SHOULD 62 00:07:13.185 --> 00:07:17.729 BE TO PROVIDE THESE SOLUTIONS AND FINALLY AND REALLY MOST IMPORTANTLY FOR THE STATE IF 63 00:07:17.729 --> 00:07:22.820 THE STATE CAN IMPRESS ONE THING ON THE COURT IT ASKS THIS COURT NOT TO PROCEED DOWN THE 64 00:07:22.820 --> 00:07:27.764 PATH OF VIRTUAL WITHOUT SENTENCE BEING THE STATE IS CONCERNED THAT VIRT UTILITY SENTENCING 65 00:07:27.764 --> 00:07:32.958 COULD BE OR WOULD BE TURNED INTO A FARS PROVIDING REMOVED DEFENDANTS UNLIKE THEIR COUNTER 66 00:07:32.958 --> 00:07:37.444 PARTS THAT ARE PRESENT IN THE STATE OF NEW JERSEY NOTHING MORE THAN A TPHOPL NON SENTENCE 67 00:07:37.444 --> 00:07:42.515 WITHOUT ANY MECHANISM FOR ENFORCE. . CRIME VICTIMS IN THIS STATE PARTICULARLY THOSE 68 00:07:42.515 --> 00:07:46.391 ASKED TO APPEAR IN PERSON TO TESTIFY ABOUT WHAT IS OFTEN THE WORSE MOMENT OF THEIR LIVES 69 00:07:46.391 --> 00:07:52.464 DESERVE MORE AND ARE ENTITLED MORE BY OUR CONSTITUTION. THE STATE ACKNOWLEDGES THAT 70 00:07:52.464 --> 00:07:57.363 THE PROFFERED SOLUTIONS BY BOTH OF OUR LOWER COURTS PRESENT THE PREVERBALL CHOICE BETWEEN 71 00:07:57.363 --> 00:08:03.155 TWO EAVES NEITHER I'LL IDEAL NOT ONLY OF DEFENDANTS BUT THEIR VICTIMS. AS SUCH THE 72 00:08:03.155 --> 00:08:10.215 STATE SUBMITS THIS MAY BE APPROPRIATE FOR COURT TO REVISIT OR AT LEAST THE SOLUTION PROFFERED 73 00:08:10.215 --> 00:08:15.520 BY THE A CDL. NUMB ALLOWING DEFENDANT NOT OTHERWISE SUBJECT TO DETENTION UNDER THE CJRA 74 00:08:15.520 --> 00:08:21.844 TO CONSENT TO DETENTION THIS SOLUTION WAS REQUESTED BY THIS DEFENDANT BUT BELIEVEDED BY 75 00:08:21.844 --> 00:08:26.544 THE LOWER COURT TO BE FOR CLOSED BY LOPEZ-CARRERA. SUCH A SECLUSION WOULD IN AND 76 00:08:26.544 --> 00:08:32.465 OUT BE NOT BE OF HELPFUL IT WOULD PROVIDE A REMEDY TO FUTURE DEFENDANTS AN VICTIMS SA LIKE 77 00:08:32.465 --> 00:08:38.054 UNTIL THE HROPBL IS TICK OF VIRTUAL TRIAL ARE SETTLED THE STATE SUBMITS THAT THE LESSER 78 00:08:38.054 --> 00:08:41.905 OF EVIL IS THE BENCH WARRANTS ISSUED BY THE TRIAL COURT. THE STATE WOULD BE HAPPY NOW 79 00:08:41.905 --> 00:08:45.492 TO ANSWER ANY QUESTIONS THE COURT LAST TO THE BEST OF ITS ABILITY. CHIEF JUSTICE 80 00:08:45.492 --> 00:08:50.001 RABNER: SO THIS GOES BACK TO THE ABSTRACT COMMENT THAT I MADE AT THE OUTSET. WE HAVE 81 00:08:50.001 --> 00:08:55.983 A DEFENDANT WHO WAS A-RAINED WHO FAILED TO SHOW UP FOR A DISCRETIONARY KPS AT THE PRELIMINARY 82 00:08:55.983 --> 00:09:03.261 STAGES OF OUR PROCEEDINGS AND THEN A BENCH WARRANTS ISSUED. AM I MISTAKEN ABOUT THAT 83 00:09:03.261 --> 00:09:10.289 TKOET. MONICA DO OUTEIRO: IT WASN'T INCLUDING APPLYING FOR PTI AND APPEALING 84 00:09:10.289 --> 00:09:16.314 REJECTION OF PTI. IT WAS ESSENTIALLY WHEN WE GOT TO, YOU KNOW, THERE WAS NO PLEA RESOLUTION 85 00:09:16.314 --> 00:09:22.310 AND WE WERE AT THE PRESS PISS OF TRIAL THAT THE BENCH WARRANTS ISSUED. CHIEF 86 00:09:22.310 --> 00:09:26.881 JUSTICE RABNER: WHAT WAS IT THAT PROMPTED THEISH SWANS EVER THE BENCH WARRANTS. 87 00:09:26.881 --> 00:09:29.854 MONICA DO OUTEIRO: THAT THERE WAS NO MORE PRETRIAL MOTIONS THAT THE NEXT STEP WOULD BE 88 00:09:29.854 --> 00:09:35.678 TRIAL AND THAT THE DEFENDANT WHILE HE HAD APPEARED VIRTUALLY FOR OTHER PRETRIAL MATTERS 89 00:09:35.678 --> 00:09:40.534 WOULD NOT BE PRESENT IN COURT. CHIEF JUSTICE RABNER: WAS THERE A PROCEEDING 90 00:09:40.534 --> 00:09:46.907 THAT HAD BEEN SCHEDULED THAT WAS MISSED A DISCRETIONARY CONFERENCE DO I DO I I CAN'T 91 00:09:46.907 --> 00:09:49.520 RECALL AND I WOULDN'T REPRESENT TO THIS COURT THAT THIS THIS DEFENDANT WAS NOT APPEARING 92 00:09:49.520 --> 00:09:54.558 VIRTUALLY. HE WAS APPEARING VIRTSLY YOU UP UNTIL A CERTAIN POINT UP UP UNTIL OBVIOUSLY, 93 00:09:54.558 --> 00:09:59.392 YOU KNOW, TRIAL OR NOT. CHIEF JUSTICE RABNER: IS THIS CASE APPROPRIATELY AND 94 00:09:59.392 --> 00:10:05.681 THE REMEDY SOUGHT NOW IS DISMISSAL OF THE INDICTMENT BY DEFENSE. IS THE IS IT 95 00:10:05.681 --> 00:10:10.191 NECESSARY FOR THE COURT TO TRY TO CHART A COURSE ALL THE WAY THROUGH TRIAL AN SENTENCING 96 00:10:10.191 --> 00:10:15.318 TO RESOLVE THIS CASE. MONICA DO OUTEIRO: WELL THE APPELLATE DIVISION HAS 97 00:10:15.318 --> 00:10:20.223 DIRECT THE THE TO ALLOW THIS DEFENDANT TO APAOERL FOR TRIAL WITHOUT ADDRESSING ANYTHING 98 00:10:20.223 --> 00:10:27.800 BEYOND THAT SO YES I BELIEVE IT IS. JUSTICE WAINER APTER: I THOUGHT THE BENCH 99 00:10:27.800 --> 00:10:33.073 WARRANT WAS ISSUED AT THE STATE'S REQUEST FOR THE DEFENDANT'S FAILURE TO APPEAR AT A DISCRETION 100 00:10:33.073 --> 00:10:36.523 CONFERENCE BUT YOU'RE SAYING THAT THAT'S NOT CORRECT AND THAT THE BENCH WARRANTS ISSUED 101 00:10:36.523 --> 00:10:41.047 WHY. MONICA DO OUTEIRO: THE PWARPT WAS ISSUED BECAUSE THE DEFENDANT COULDN'T 102 00:10:41.047 --> 00:10:45.964 APPEAR IN PERSON AND THAT THE NEXT STEP WAS TRIAL BUT I DON'T WANT THE COURT TO BELIEVE 103 00:10:45.964 --> 00:10:50.836 THAT THIS DEFENDANT WASN'T THE FACTS OF THIS CASE IS THIS DEFENDANT WAS APPEARING VIRTUALLY 104 00:10:50.836 --> 00:10:56.971 WAS COULD APPEAR VIRTUALLY AT PROCEED. JUSTICE WAINER APTER: WAS THERE SOME 105 00:10:56.971 --> 00:11:01.241 DISCUSSION ON THE RECORD OKAY TRIAL CANNOT PROCEED VIRTUALLY AND THEREFORE WE MUST HAVE 106 00:11:01.241 --> 00:11:04.322 A BENCH WARRANT. MONICA DO OUTEIRO: THERE'S ALSO A MOTION FILED BY THE DEFENDANT 107 00:11:04.322 --> 00:11:09.807 IN THIS MOTION THAT WAS BEFORE THE COURT WITH REGARD TO HOW TO PROCEED AT THAT POINT AND 108 00:11:09.807 --> 00:11:14.480 THE REQUEST WAS MADE BY THE DEFENDANT TO DISMISS THE CASE BECAUSE THE STATE COULD NOT 109 00:11:14.480 --> 00:11:18.833 TRY THE DEFENDANT BECAUSE THE DEFENDANT WAS NOT WP THE STATE OF NEW JERSEY. CHIEF 110 00:11:18.833 --> 00:11:23.147 JUSTICE RABNER: ARE MOTIONS ALREADY RESOLVED DOUGH DO I BELIEVE SO. I RECALL THAT THERE 111 00:11:23.147 --> 00:11:28.447 WAS AGAIN AN APPLICATION FOR PTI. A PTI REJECTION. CHIEF JUSTICE RABNER: 112 00:11:28.447 --> 00:11:34.033 I'M TALKING ABOUT ORDINARY PRETRIAL MOTIONS DOUGH DO I I DON'T KNOW IF THE STATE HASSED 113 00:11:34.033 --> 00:11:38.323 ANY MOTIONS YOU HAD WOULD HAVE TO ASK DEFENSE COUNSEL IF THERE WERE ANY MOTIONS 114 00:11:38.323 --> 00:11:44.171 CONTEMPLATED WITH REGARD TO PRETRIAL MOTIONS BUT AGAIN THEY REACHED A POINT WHERE THE 115 00:11:44.171 --> 00:11:48.647 DETERMINATION OR AGAIN THE REQUEST BY DEFENDANT WAS MADE THAT DEFENDANT CAN'T APPEAR OR 116 00:11:48.647 --> 00:11:53.248 THE STATE CANNOT TRY HIM IN PERSON THEREFORE THE CASE SHOULD BE DISMISSED. JUSTICE 117 00:11:53.248 --> 00:11:57.240 NORIEGA: CAN WE BACK UP JUST A LITTLE BIT TO CLARIFY. MY READING OF IT WAS THE DEFENDANT 118 00:11:57.240 --> 00:12:02.527 WAS RELEASED PRETRIAL AND IMMEDIATELY DETAINED BY ICE SO HE NEVER MADE IT OUT OF CUSTODY 119 00:12:02.527 --> 00:12:08.767 FROM COUNTS HE WENT RIGHT TO ICE CUSTODY RIGHT DOUGH DO I I HAVE NO REASON TO DISPUTE 120 00:12:08.767 --> 00:12:12.919 THAT YES. JUSTICE NORIEGA: THEN HE WAS INDICTED RIGHT SO HE WAS INDICTED NOT 121 00:12:12.919 --> 00:12:20.351 IN CUSTODY, NOT BEING REQUIRED TO APPEAR TO COURT. THAT'S MY UNDERSTANDING IS THAT IN 122 00:12:20.351 --> 00:12:25.720 AUGUST OF 2021 SEVERAL MONTHS FROM MARCH UNTIL AUGUST AFTER HIS RELEASE HE WAS INDICTED. 123 00:12:25.720 --> 00:12:35.286 SO AT THAT POINT A SUMMONS ISSUES AND A COURT DATE IS ASSIGNED. SO AT THAT POINT IN 124 00:12:35.286 --> 00:12:44.380 BETWEEN AT SOME POINT IN NOVEMBER OF 2021 HE'S DEPORTED. THE IT'S NOT CLEAR TO ME WHEN 125 00:12:44.380 --> 00:12:48.436 THAT FIRST APPEARANCE WAS BUT SIMULTANEOUSLY THERE'S A COURT APPEARANCE IN THE CRIMINAL 126 00:12:48.436 --> 00:12:54.820 MATTER THAT'S SCHEDULE EVERYONE APPEARS. HE DOESN'T COURT ISSUES A BENCH WARRANTS. 127 00:12:54.820 --> 00:12:57.339 MONICA DO OUTEIRO: THERE'S ALSO LIKE I SAID THERE WAS MOTION PRACTICE WITH REGARD TO 128 00:12:57.339 --> 00:13:04.696 APPLICATIONS TO PRETRIAL -- EXCUSE ME NOT PRETRIAL DETENTION. PTI THANK YOU. 129 00:13:04.696 --> 00:13:08.858 JUSTICE PIERRE-LOUIS: HE WAS APPEARING FROM MEXICO VIA ZOOM BECAUSE THE BENCH WARRANT 130 00:13:08.858 --> 00:13:15.291 SUSPECT ISSUED UNTIL 2023 CORRECT. HE'S INDICTED IN 2021 SO IN THE INTERIM DURING THAT 131 00:13:15.291 --> 00:13:22.147 TIME PERIOD IT APPEARS HE WAS APPEARING FROM MEXICO VIA ZOOM TO PARTICIPATE IN SEVERAL 132 00:13:22.147 --> 00:13:25.665 COURT PROCEEDINGS. MONICA DO OUTEIRO: THAT'S MY UNDERSTANDING SWELL. 133 00:13:25.665 --> 00:13:28.287 CHIEF JUSTICE RABNER: WAS THIS CASE READY TO GO TO TRIAL. MONICA DO OUTEIRO: 134 00:13:28.287 --> 00:13:32.905 I THINK IT WAS AT THE TABLING WHERE THERE WAS NO OTHER RESOLUTION AND WE WERE ON THE WAY 135 00:13:32.905 --> 00:13:37.987 TO TRIAL BUT THE ONLY WAY THIS WAS GOING TO RESOLVE BECAUSE THERE WAS NO ACCEPTANCE INTO 136 00:13:37.987 --> 00:13:42.784 PFPL TI IS IT WAS GOING TO GO TO TRIAL YES, YOUR HONOR. JUSTICE NORIEGA: THE 137 00:13:42.784 --> 00:13:47.391 WAY I READ IT WAS SEVERAL PWAFRPBTS ISSUED A-LODGE THE WAY. EVERY TIME THERE WAS A NON 138 00:13:47.391 --> 00:13:51.933 APPEARANCE AND I THINK THAT SEEMS TO BE THE STARTING QUESTION OF IS THAT THE APPROPRIATE 139 00:13:51.933 --> 00:13:58.810 MECHANISM. YOU MENTIONED EARLIER WHEN YOU WERE DURING YOUR OPENING THAT THE BENCH WARRANTS 140 00:13:58.810 --> 00:14:04.148 IS A NECESSARY STEP TO COMPLETE THE CRIMINAL TRIAL PROCESS. RIGHT IS THAT DID I GET THAT 141 00:14:04.148 --> 00:14:07.138 RIGHT. MONICA DO OUTEIRO: I SAID THE DEFENDANT'S PHYSICAL APPEARANCE IN THE 142 00:14:07.138 --> 00:14:11.849 STATE OF N.J. I BELIEVE IS NECESSARY TO COMPLETE THE CRIMINAL JUSTICE PROCESS. I TONIGHT 143 00:14:11.849 --> 00:14:17.375 SEE HOW WE -- HOW WE GET TO SENTENCING EVEN IF THERE IS A PLEA HOW SENTENCING IS 144 00:14:17.375 --> 00:14:21.702 ACCOMPLISHED WITHOUT THE DEFENDANT BEING WITHIN THE JURISDICTION. JUSTICE NORIEGA: 145 00:14:21.702 --> 00:14:26.438 SO I GUESS MY QUESTION IS IS THE BENCH WARRANT A SINCERE MECHANISM TO MAKE THAT HAPPEN 146 00:14:26.438 --> 00:14:32.214 UPON SOMEBODY'S REMOVAL FROM THE COUNTRY. MONICA DO OUTEIRO: I THINK ONCE WE 147 00:14:32.214 --> 00:14:38.836 HAVE REMOVAL YES. TO SOME EXTENT I UNDERSTAND THE REASONS FOR NON APPEARANCE ARE DIFFERENT 148 00:14:38.836 --> 00:14:45.689 BUT I MEAN WHEN YOU HAVE A SOMEONE WHO HAS BEEN IN THE COUNTRY THAT'S NOT APPEARING IN 149 00:14:45.689 --> 00:14:50.166 COURT THAT'S THE MECHANISM THAT WE USE. JUSTICE NORIEGA: I'M NOT SPEAKING TO THE 150 00:14:50.166 --> 00:14:56.928 ISSUE OF THE VOLITIONAL ACT OF NOT APPEARANCE AT THIS POINT BUT JUST IN TERMS OF WHETHER OR 151 00:14:56.928 --> 00:15:02.531 NOT THE BENCH WARRANT IS A SINCERE MECHANISM TO ACTUALLY ATTEMPT TO GET THE PERSON BACK 152 00:15:02.531 --> 00:15:07.055 FROM OUTSIDE OF THE COUNTRY DO I. MONICA DO OUTEIRO: I'M SORRY, YOUR HONOR, 153 00:15:07.055 --> 00:15:12.193 I FEEL LIKE I'M NOT UNDERSTANDING PARTICULARLY WITH THE PHRASE SINCERE. IT'S THE PROCEDURE 154 00:15:12.193 --> 00:15:17.108 THAT EXISTS. JUSTICE NORIEGA: OKAY LET'S GO TO THAT. HOW DOES THE BENCH WARRANT 155 00:15:17.108 --> 00:15:22.773 HELP SECURE THE PERSON KOFPLING BACK TO THE US. MONICA DO OUTEIRO: SO I THINK 156 00:15:22.773 --> 00:15:28.696 THE BENCH WARRANT IS A STEP IN THAT PROCESS. AGAIN HERE WE HAD HEY DEFENDANT WHO WAS 157 00:15:28.696 --> 00:15:33.500 ACTIVELY OPPOSING THE ISSUANCE OF ANY KINDS OF WARRANT AND WE KNOW IN THIS CASE THAT SHOULD 158 00:15:33.500 --> 00:15:39.700 THE STATE EVEN WANT TO CONTEMPLATE EXTRADITION THAT THAT'S PART OF THE PROCESS. I THINK 159 00:15:39.700 --> 00:15:43.571 IT ALSO. JUSTICE WAINER APTER: JUST TO CLARIFY YOU'RE SAYING WITHOUT A BENCH WARRANT 160 00:15:43.571 --> 00:15:46.634 YOU CANNOT EXTRADITE. MONICA DO OUTEIRO: JUSTICE WAINER APTER: ON 161 00:15:46.634 --> 00:15:51.400 THIS PARTICULAR COUNTRY. MONICA DO OUTEIRO: OUR EXTRADITION TREATY WITH MEXICO 162 00:15:51.400 --> 00:15:55.912 ONE OF THE REQUIREMENTS IS THE EXISTENCE OF A WARRANT SO WHETHER OR NOT A WARRANT CAN 163 00:15:55.912 --> 00:16:03.491 ISSUE THE STATE CEASES IT'S PART OF THAT WE'RE PUT IN THIS CON UNDRUM BY THE LOWER COURT 164 00:16:03.491 --> 00:16:09.470 TO SAY THE STATE NEVER. IF WE CAN'T GET THE THING WE NEED WE CAN'T START THAT PROCESS. 165 00:16:09.470 --> 00:16:13.326 CHIEF JUSTICE RABNER: HOW OFTEN DOES YOUR OFFICE SEEK TRADITION. MONICA 166 00:16:13.326 --> 00:16:17.130 DO OUTEIRO: SO I CAN TELL, YOUR HONOR, THAT IN THE 20 YEARS I'VE BEEN P THE PROSECUTOR'S 167 00:16:17.130 --> 00:16:23.420 OFFICE WE HAVE THROT EXTRADITED AN DEFENDANT FROM THE OUTSIDE THE UNITS I HAVE A KWERBG 168 00:16:23.420 --> 00:16:29.288 ARE WHEN SHE WAS WITH ANOTHER OFFICE DID DO THE EXTRADITION WITH MEXICO. IT'S A PROCEDURE 169 00:16:29.288 --> 00:16:36.574 THAT TOOK OVER ABOUT FIVE YEARS. IT REQUIRED AT THE START OF THE STATE'S COMPILE AN 170 00:16:36.574 --> 00:16:42.157 APPLICATION IT REQUIRED THE STATE TO COMPILE DISCOVERY BUT THEY NEEDED TO BE TRANSLATED 171 00:16:42.157 --> 00:16:47.178 INTO SPANISH IT WAS TRANSMITTED TO THE STATE DEPARTMENT. THE STATE DEPARTMENT TRANSMITTED 172 00:16:47.178 --> 00:16:52.858 IT TO MEXICO. MY UNDERSTANDING IS OUR DIP LOW MAT I CAN RELATIONS WITH THE COUNTRY OF 173 00:16:52.858 --> 00:16:58.631 ORIGIN GOING TO THE SPEED WITH WHICH APPLICATIONS MIGHT BE CONSIDERED IN HER CASE MEXICO 174 00:16:58.631 --> 00:17:05.752 ASKED FOR ADDITIONAL DOWNS WHICH HAD TO BE TRANSLATED SO IT'S AN ARD DO YOU SEE PROCESS. 175 00:17:05.752 --> 00:17:10.246 CHIEF JUSTICE RABNER: IT'S YOUR ANSWER DOESN'T PRICE IT'S ONE THAT IS RARELY 176 00:17:10.246 --> 00:17:16.202 INVOKED BY PROSECUTOR'S. IS THERE ANY REASON THAT IN THE RARE CASE THE PROSECUTION 177 00:17:16.202 --> 00:17:20.260 COULDN'T GO TO THE JUDGE JUDGE AND SAY WE NEED A PWARPT AT THIS TIME IN TORED TO COMPLETE 178 00:17:20.260 --> 00:17:26.837 THAT PROCESS AS OPPOSED TO ENTERING CASE AFTER CASE WHERE EXTRADITION IS NOT EVEN 179 00:17:26.837 --> 00:17:30.515 CONSIDERED. MONICA DO OUTEIRO: SO I WOULD JUST PUSH BACK ON WHETHER OR NOT 180 00:17:30.515 --> 00:17:34.137 EXTRADITION WAS EVEN CONSIDERED. BUT THERE'S NOTHING THIS SAYS THE STATE CAN'T DO THAT. 181 00:17:34.137 --> 00:17:38.513 THAT ALSO DIDN'T ON SOME OF THE PROBLEM OF THE BROAD ARE PROBLEM I THINK AND I UNDERSTAND 182 00:17:38.513 --> 00:17:43.818 THE COURT'S DESIRE TO KEEP THIS NARROW, YOU KNOW, AS A PROSECUTOR WE ARE ALWAYS LOOKING 183 00:17:43.818 --> 00:17:49.043 FOR GUIDANCE. WE WANT TO DO THINGS THE RIGHT WAY IT DOESN'T ADDRESS THE ISSUE OF HOW 184 00:17:49.043 --> 00:17:54.595 TO HANDLE THESE CASES TO BEGIN WITH. I UNDERSTAND THAT IN LOPEZ-CARRERA THE 185 00:17:54.595 --> 00:17:59.436 REPRESENTATION TO THE COURT WAS THAT, YOU KNOW, THESE WERE RARE CASES. I THINK AS WE STANDS 186 00:17:59.436 --> 00:18:04.030 HERE IN 2026 I DON'T THINK THEY'RE RARE. CHIEF JUSTICE RABNER: YOU'RE WELCOME 187 00:18:04.030 --> 00:18:08.488 TO PUSH BACK HAS YOUR OFFICE TAKEN ESTOPS IS TO SEEK EXTRADITION IN THIS MATTER DOUGH 188 00:18:08.488 --> 00:18:13.239 DO HE NO BECAUSE OF THE PENDENCY OF THE THE LITIGATION PARTICULARLY WITH REGARD TO 189 00:18:13.239 --> 00:18:17.158 WHETHER A WARRANT CAN EVEN ISSUE. CHIEF JUSTICE RABNER: IS IT YOUR INTENDING 190 00:18:17.158 --> 00:18:23.367 TO SEEK EXTRADITION IS IT A THIRD DEGREE CHILD ENDANGERMENT CHARGE. MONICA DO 191 00:18:23.367 --> 00:18:28.812 OUTEIRO: I IT IS I CAN'T COMMIT MY OFFICE TO OFFICE ANY ANY DECISIONS THAT'S SOMETHING 192 00:18:28.812 --> 00:18:34.963 ABOVE MY PAY GRADE IF YOU WILL. THAT BEING SAID I EXTRADITION IS NOT JUST ABOUT CAN WE 193 00:18:34.963 --> 00:18:39.475 DO IT IT'S ABOUT OBVIOUSLY A GIGS OF RESOURCES SO IS I'M NOT GOING TO SAY YES, YOUR HONOR, 194 00:18:39.475 --> 00:18:44.059 IF YOU SAID IT WE WOULD GO BACK AND DO IT RIGHT NOW AND THAT'S A DECISION THAT WOULD NEED 195 00:18:44.059 --> 00:18:49.791 TO BE MADE BASED ON THE RESOURCES OFS ONS. CHIEF JUSTICE RABNER: I RAISE IT 196 00:18:49.791 --> 00:18:53.861 BECAUSE YOU SAWED WE NEED APPEAR BENCH WARRANT. MONICA DO OUTEIRO: TO CONSIDER. 197 00:18:53.861 --> 00:18:57.691 CHIEF JUSTICE RABNER: YOU DON'T NEED IT TO CONSIDER DO YOU DOUGH DO I I THINK 198 00:18:57.691 --> 00:19:00.874 IF. CHIEF JUSTICE RABNER: OR DO YOU NEED IT TO CONSIDER. MONICA DO 199 00:19:00.874 --> 00:19:06.968 OUTEIRO: WHAT WAS BEING SAID IT IS WE CAN'T HAVE IT AT ALL. IN THIS CASE THAT'S WHY AGAIN 200 00:19:06.968 --> 00:19:12.164 I THINK WE DON'T -- AGREE WITH, YOUR HONOR, THAT WE DON'T NEED IT TO CONSIDER IT BUT THAT 201 00:19:12.164 --> 00:19:15.926 ALSO THIS DOESN'T ADDRESS WHAT WE'RE GOING TO DO WITH ALL OF THESE CASES THAT ARE SIMILARLY 202 00:19:15.926 --> 00:19:21.798 SITUATED THAT ARE SITTING ON OUR CALENDAR WITH IF THE BENCH WARRANT ISN'T THE SOLUTION 203 00:19:21.798 --> 00:19:27.385 AN VIRTUAL TRIAL ISN'T OR VIRTUAL PROCEEDING THROUGH THIS TRIAL EUPS ISN'T THE SECLUSION 204 00:19:27.385 --> 00:19:33.294 THEN WE'RE IN THIS NO MAN'S LANCE OF CASES STAEPG ACTIVE ON A COURT AS CALENDAR. 205 00:19:33.294 --> 00:19:37.131 JUSTICE PATTERSON: WITH RESPECT TO THE EXTRADITION ISSUE SOLELY HAS THE APPELLATE 206 00:19:37.131 --> 00:19:44.962 DIVISION SAID, YOU KNOW, NO BENCH WARRANT BUT UNLESS NEEDED FOR A EFFORT TO GET TO 207 00:19:44.962 --> 00:19:50.220 EXTRADITE THE DEFENDANT, WOULD THAT RESOLVE YOUR PROBLEM WITH THAT ASPECT OF THE APPELLATE 208 00:19:50.220 --> 00:19:54.268 DIVISION'S DECISION. MONICA DO OUTEIRO: IT WOULD RESOLVE TO AN EXTENT IT THE 209 00:19:54.268 --> 00:19:59.841 STATE HAD ABILITY TO FILE FOR EXTRADITION IN THIS CASE. IF IT DOESN'T IT LEAVE OPEN WHAT 210 00:19:59.841 --> 00:20:04.842 TO DO WITH THIS CASE WHICH WOULD BE I GUESS LEAVE IT OPEN ON THE COURT'S CALENDAR IT WOULD 211 00:20:04.842 --> 00:20:09.263 EVENTUALLY GET PUT ON THE KILL LITTLES. I DON'T KNOW IF THAT'S LIKE THE FORMAL NAME OF. 212 00:20:09.263 --> 00:20:16.755 THAT'S WHAT WE CALL IT. IN MONMOUTH COUNTY YOU. IT WOULD TKPWE GET DISMISSED. 213 00:20:16.755 --> 00:20:21.538 CHIEF JUSTICE RABNER: THAT'S A NEW TERM FOR US DOUGH DO I I'M SURE IT HAS A MORE FORMAL 214 00:20:21.538 --> 00:20:25.933 NAME BUT THAT'S I MEAN THAT'S WHAT WE REFER TO IT CASES THAT ARE VERY OLD AND WE HAVE 215 00:20:25.933 --> 00:20:31.599 TO SAY WA WE'RE GOING TO DO. THE ASSIGNMENT JUDGE WHAT WE'RE GOING TO DO WITH THEM AN 216 00:20:31.599 --> 00:20:37.238 WE WOULD BE STUCK IF WE CAN'T EXTRADITE THEY WOULD GET DISMISSED AND, YOU KNOW, THE 217 00:20:37.238 --> 00:20:42.828 STATE'S CONCERN I THINK DIS PART JUST FLOWS IN THIS CASE OUT OF ALL LEVELS BECAUSE THEN 218 00:20:42.828 --> 00:20:47.511 WE HAVE, YOU KNOW, THIS VICTIM NOT GETTING ANYTHING THIS DEFENDANT NOT GETTING IN THIS 219 00:20:47.511 --> 00:20:51.428 CASE. LIKE WHAT DO WE DO. CHIEF JUSTICE RABNER: I UNDERSTAND YOUR DESIRE TO 220 00:20:51.428 --> 00:20:56.482 NOT BEING ON THAT LIST. WHAT DOES A BENCH WARRANT ACCOMPLISH PRACTICALLY. 221 00:20:56.482 --> 00:21:00.212 MONICA DO OUTEIRO: SHOULD WE DO VIRGINIA DICTION I'LL PUT THAT TO THE SIDE BECAUSE WE 222 00:21:00.212 --> 00:21:04.658 TALKED ABOUT THAT IT GIVES US THE ABILITY IF THIS DEFENDANT RETURNS TO THE UNITED STATES. 223 00:21:04.658 --> 00:21:08.492 I KNOW I WANT TO STAND BEFORE THIS COURT AND SUGGEST THAT, YOU KNOW, JUST BECAUSE HE'S 224 00:21:08.492 --> 00:21:14.159 NOT A US CITIZEN HE WOULD COME IN THIS COUNTRY WITHOUT INSPECTION I THINK IS THE TECHNICAL 225 00:21:14.159 --> 00:21:20.356 TERM. APOLOGIZE IMMIGRATION IS NOT MY FOR TAKE BUT THIS DEFENDANT HAS THAT IN HIS PAST 226 00:21:20.356 --> 00:21:27.521 IT WOULD ALLOW US THAT ABILITY TO BRING HIM BACK WITHIN THE STATE OF NEW JERSEY. I THINK 227 00:21:27.521 --> 00:21:34.797 AGAIN AS I CONCEDE AND I CAN'T I'M NOT GOING TO -- I CAN'T STAND BEFORE THIS COURT AND 228 00:21:34.797 --> 00:21:39.269 SAY ANYTHING DIFFERENT. OBVIOUSLY AT SOME POINT THESE CASES IF THERE'S NOT A MECHANISM 229 00:21:39.269 --> 00:21:45.007 TO RESOLVE THEM WITH THE DEFENDANT NOT BEING IN THE UNITED STATES THESE CASES DO HAVE 230 00:21:45.007 --> 00:21:52.599 THE POTENTIAL OF NOT BEING RESOLVED, OF FACING SPEEDY TRIAL DISMISSAL OR DISMISSAL BY 231 00:21:52.599 --> 00:21:56.199 THE STATE BECAUSE WE CAN'T PROSECUTE THEM. CHIEF JUSTICE RABNER: AND I TAKE 232 00:21:56.199 --> 00:22:01.928 IT YOUR POSITION IS THAT A BENCH WARRANT ENDS FOR THE FURTHER PROCEEDS UNTIL IT'S LEFTED. 233 00:22:01.928 --> 00:22:06.637 MONICA DO OUTEIRO: IT TAKES IT OFF THE COURT'S CALENDAR. IT PUTS IT IN A POSITION 234 00:22:06.637 --> 00:22:13.430 SHOULD CIRCUMSTANCES CHANGE WE CAN MAKE DIFFERENT DECISIONS. IT PUTS US IN THE POSITION 235 00:22:13.430 --> 00:22:17.953 OF PRO AT THEINGING OUR PROSECUTION SHOULD THE DEFENDANT COME BACK INTO THE UNITED STATES 236 00:22:17.953 --> 00:22:24.809 BY WHATEVER MEANS. YEAH IT JUST AGAIN IT'S NOT IDEAL. I REALLY -- REALLY TRULY DID WANT 237 00:22:24.809 --> 00:22:29.929 TO BE ABLE TO COME TO THIS COURT WITH A SOLUTION AND IT'S A VERY STICKY AND DIFFICULT 238 00:22:29.929 --> 00:22:35.516 ISSUE. JUSTICE NORIEGA: IT'S NOT AN UNFAIR POSITION IN THE SENSE THAT BENCH 239 00:22:35.516 --> 00:22:40.931 WARRANTS HAVE ALWAYS SERVED THAT PURPOSE RIGHT. IF THE NON APPEARANCE IS BECAUSE SOMEBODY'S 240 00:22:40.931 --> 00:22:47.757 IN A DIFFERENT JURISDICTION IN CUSTODY IN FEDERAL CUSTODY SOMETIMES THIS ARE PLACE HOLD 241 00:22:47.757 --> 00:22:53.127 HE IS SO THE PERSON ISN'T LOST IN THE SYSTEM AND HAS SOME WAY OF TREUG HE SHALLING ADVICE 242 00:22:53.127 --> 00:22:58.481 AL FOR THEM TO SAY WHATEVER SITUATION YOU'RE IN YOU NEED TO COME BACK TO THIS COURT. THAT'S 243 00:22:58.481 --> 00:23:03.488 A FAIR POSITION FOR THE STATE TO TAKE AND I THINK EXTRADITION IS A HUGE COMMITMENT OF 244 00:23:03.488 --> 00:23:08.386 RESOURCES AND MOST COUNTSY PROSECUTOR'S OFFICE OFFICE AREN'T GOING TO SPENDS ON A REGULAR 245 00:23:08.386 --> 00:23:16.363 BASIS FOR THIRD FOURTH DEGREE CRIMES IS THAT FAIR DOUGH DO I CAN'T SPEAK THAT. 246 00:23:16.363 --> 00:23:22.062 JUSTICE NORIEGA: OKAY. SO ARE THERE OPTIONS THAT HAVE BEEN INVESTIGATED BY EAT YOUR OFFICE 247 00:23:22.062 --> 00:23:29.551 OR ANY OR OFFICE YOU'RE AWARE OF IN TERMS OF COORDINATING EFFORTS TO HAVE THE FORTUNE 248 00:23:29.551 --> 00:23:35.168 NATIONAL COME BACK INTO THE COUNTRY UNDER CIRCUMSTANCES LIMITED TO COMING IN FOR THE 249 00:23:35.168 --> 00:23:43.070 CRIMINAL CASE BECAUSE THAT SOMETIMES IS DEFEATED BY THE EXISTENCE OF A BENCH WARRANTS. 250 00:23:43.070 --> 00:23:50.165 UNTIL THERE'S AN ANG ARRANGEMENT MADE THERE IS A BLOCKADE. HAS ANYBODY LOOKED INTO THOSE 251 00:23:50.165 --> 00:23:55.866 POSSIBILITIES. IT'S BROUGHT UP IN THE BRIEFING IN TERMS OF ALL THE TOOL KITS THAT DON'T 252 00:23:55.866 --> 00:24:00.375 INCLUDE EXTRADITION. MONICA DO OUTEIRO: SO ANY OPTION AFTER REMOVAL WHICH 253 00:24:00.375 --> 00:24:08.499 IS SITUATED IN THIS CASE EXTRADITION IS THE ONLY SECLUSION THAT I'M AWARE OF. 254 00:24:08.499 --> 00:24:11.081 JUSTICE WAINER APTER: THERE'S NO OTHER WAY TO GET SOMEONE BACK INTO THE UNITED STATES 255 00:24:11.081 --> 00:24:17.514 TO THE POINT THE DEFENDANT WAS SAYING HE WAS WILLING TO MEET THE STATE AT THE BORDER AND 256 00:24:17.514 --> 00:24:21.379 PAY EXTRADITION RIGHT. MONICA DO OUTEIRO: DEFENDANT SAID THAT I DON'T KNOW 257 00:24:21.379 --> 00:24:24.728 IF THAT'S WOULD BE LAWFUL. JUSTICE PIERRE-LOUIS: THE OTHER THING IN THE TOOL 258 00:24:24.728 --> 00:24:31.035 KIT WOULD HAPPEN BEFORE TKPORLGS HAS YOUR OFFICE HAD ANY EXPERIENCE WITH REQUESTING DEFERRED 259 00:24:31.035 --> 00:24:37.394 ACTION OR ADMINISTRATIVE STAYS OF REMOVAL OR TRYING TO COORDINATE WITH ICE PRIOR TO 260 00:24:37.394 --> 00:24:43.931 DEPORTATION DOUGH DO HE YES SO I ASKED THE DIRECTOR KNOWING I WAS GOING TO COME HERE 261 00:24:43.931 --> 00:24:48.165 ANTICIPATING I ASKED THE DIRECTOR OF OUR TRIAL TEAMS WHAT OUR EXPERIENCE HAS BEEN SO WHAT 262 00:24:48.165 --> 00:24:54.239 SHE SAID IS THAT IT'S AND I THINK AS THIS COURT FOUND IN LOPEZ-CARRERA WHEN YOU HAD NUMEROUS 263 00:24:54.239 --> 00:25:00.218 FRIEND OF THE COURTS BRIEFS EXPLAINING HOW COMPLICATED AND UNKNOWABLE THE IMMIGRATION 264 00:25:00.218 --> 00:25:05.838 PROCESS IS SHE SAID IT'S HARD FOR US TO KNOW. SHE SAID USUALLY LIKE THE WAY WE KNOW THAT 265 00:25:05.838 --> 00:25:12.066 SOMEONE EVEN HAS IMMIGRATION ISSUES IS IF THEY GO TO COUNTY JAIL AND AN DETAIN ARE IS 266 00:25:12.066 --> 00:25:16.526 PUT ON THEM THEN WE HAVE IDEA THAT THEY COULD BE SUBJECT TO REMOVAL PROCEEDINGS BUT SHE 267 00:25:16.526 --> 00:25:20.924 SAID THERE'S NOT LIKE A CONSISTENT TIMING WITH REGARD TO THAT IT'S VERY UNCERTAIN AND 268 00:25:20.924 --> 00:25:27.429 THAT OFTENTIMES NOT ALWAYS THAT OFTENTIMES BY THE TIME WE FIND OUT ABOUT IT THE DEFENDANT'S 269 00:25:27.429 --> 00:25:31.595 BEEN REMOVED FROM THE UNITED STATES ALREADY. SHE SAID THERE ARE TIMES AND WE'LL TELL 270 00:25:31.595 --> 00:25:37.295 THE COURT THIS THIS HE ARE VERY RARE SHE SAID IS THAT IMMIGRATION AUTHORITIES WILL CALL 271 00:25:37.295 --> 00:25:42.961 US AND SAY HEY, WE HAVE THIS DEFENDANT, HE'S GOING TO TB REMOVED. DO YOU WANT TO FILE, 272 00:25:42.961 --> 00:25:47.515 YOU KNOW, ANY OF THOSE PLAYINGSES IN THE TOOL KIT. SO THERE ARE TIMES THAT THAT HAPPENS 273 00:25:47.515 --> 00:25:54.008 BUT SHE SAID THAT THAT'S VERY RARE. YOU KNOW, OUR SPAOERPTS IS EVEN IF SOMEONE'S BEEN 274 00:25:54.008 --> 00:25:58.928 DETAINED OR HAS THAT DETAINER PUT ON THEM BY ICE DOESN'T MEAN THEY'RE GOING TO BE REMOVED 275 00:25:58.928 --> 00:26:04.590 OR THAT THEY'RE GOING TO REMAIN IN CUSTODY AND SO YEAH IT'S POSSIBLE. I'M NOT SANG IT'S 276 00:26:04.590 --> 00:26:11.171 NOT POSSIBLE BUT BECAUSE I FEEL LIKE THE AT SOME POINT WE'RE THE LITTLE SIBLING OF THE 277 00:26:11.171 --> 00:26:15.527 FEDERAL GOVERNMENT WE DON'T HAVE A MECHANISM TO KNOW ALL OF THIS AND TO ENSURE THAT -- 278 00:26:15.527 --> 00:26:20.212 I CAN'T TELL THE COURT WE WILL DEFINITELY HAVE THIS INFORMATION AND WE WILL DO THIS IN 279 00:26:20.212 --> 00:26:23.575 EVERY CASE. JUSTICE PIERRE-LOUIS: AND EVEN THE PROCEEDING TOWARDS USING ONE 280 00:26:23.575 --> 00:26:32.107 THOF PROCESS HE IS IN THE TOOL KIT WHICH IS AN ICE KIT FROM 2011 HAS THERE BEEN ANY UPDATE 281 00:26:32.107 --> 00:26:35.915 TO THAT DOUGH DO I BELIEVE SO. I BELIEVE THAT. JUSTICE PIERRE-LOUIS: I JUST 282 00:26:35.915 --> 00:26:42.688 WANTED TO. MONICA DO OUTEIRO: ATTORNEY GENERAL ADVISED THAT IT'S BEEN UPDATED. 283 00:26:42.688 --> 00:26:46.445 JUSTICE PIERRE-LOUIS: EVEN IN USING THOSE TOOLS IT'S NOT GUARANTEED EVEN TOOL 284 00:26:46.445 --> 00:26:54.649 KIT ITSELF NOTES THAT THERE'S OCCASIONS IF A WRIT IS REQUESTED AND ASSIGNED BY A JUDGE 285 00:26:54.649 --> 00:26:59.699 THAT THERE ARE KAEURPBS THAT ICE MIGHT NOT HONOR THE KIT. MONICA DO OUTEIRO: 286 00:26:59.699 --> 00:27:04.208 THOSE WERE THE FACTS IN MR. LOPEZ-CARRERA SPECIFICALLY HE ASKED THE IMMIGRATION COURT 287 00:27:04.208 --> 00:27:08.910 TO STAY HIS REMOVAL AND THAT WAS DENIED. THE STATE ASKED PERMISSION TO FILE AND THAT 288 00:27:08.910 --> 00:27:14.212 WAS DENIED. SO AGAIN IT'S I THINK THAT'S I UNDERSTAND AGAIN THE NEED TO KEEP THIS CASE 289 00:27:14.212 --> 00:27:20.709 OR THE DESIRE TO KEEP THIS CASE KIND OF NARROW BUT THERE'S NO -- THERE'S NO I CAN'T SAY 290 00:27:20.709 --> 00:27:26.472 THAT WE CAN DEFINITELY DO IN EVERY CASE AN IT SHOULD BE ON US TO MAKE SHEER WE FILE THOSE 291 00:27:26.472 --> 00:27:30.461 APPLICATIONS BEFORE A DEFENDANT'S REMOVED. WE DON'T HAVE THE AUTHORITY OR CONTROL TO 292 00:27:30.461 --> 00:27:35.485 SAY THAT EON COULD DO THAT IN EVERY CASE. CHIEF JUSTICE RABNER: WHY EXPLAIN 293 00:27:35.485 --> 00:27:42.265 WHY YOU CAN'T REACH OUT TO ICE IN INDIVIDUAL CASES ASK ASK FOR ONE OF THESE OPLGSS DOUGH 294 00:27:42.265 --> 00:27:46.677 DO I BECAUSE OFTENTIMES WE DON'T KNOW THAT THIS IS AN ISSUE UNTIL AFTER THE DEFENDANT'S 295 00:27:46.677 --> 00:27:50.642 REMOVED. AGAIN THE ONLY WAY FOR US TO KNOW. CHIEF JUSTICE RABNER: OF COURSE 296 00:27:50.642 --> 00:27:57.081 DOUGH DO I ASSUMING WE KNOW THAT'S DIFFERENT. ASSUMING WE KNOW AGAIN IF THIS COURT SAYS 297 00:27:57.081 --> 00:28:03.079 THE STATE HAS OBLIGATION TO MAKE THESE INQUIRIES LIKE THAT -- YES, IF YOU TELL US TO DO 298 00:28:03.079 --> 00:28:05.968 THAT WE CAN DO THAT. CHIEF JUSTICE RABNER: DOES THAT HAPPEN GENERALLY IN CASES 299 00:28:05.968 --> 00:28:10.535 IN YOUR OFFICE. DID THAT HAPPEN IN THIS CASE WHERE THERE WAS AN AFFIRMATIVE EFFORT TO 300 00:28:10.535 --> 00:28:16.948 REACH OUT TO ICE DOUGH DO HE I DON'T KNOW ABOUT THIS CASE SPECIFICALLY. AGAIN APPRISING 301 00:28:16.948 --> 00:28:23.392 US. BUT AGAIN LIKE THE WAY WE WOULD EVEN HAVE AN IDEA THIS THIS COULD BE AN ISSUE IS 302 00:28:23.392 --> 00:28:29.423 ONLY IF THE DEFENDANT GOES INTO THE COUNTY JAIL AND ICE PUTS A DETAIN ARE ON THEM THAT'S 303 00:28:29.423 --> 00:28:34.272 LIKE THE ONLY WAY FOR ME TO KNOW STPR JUMP WE'RE NOT GOING TO ASSUME BECAUSE SOMEONE HAS 304 00:28:34.272 --> 00:28:38.792 A SPECIFIC LAST NAME OR A PLACE OF BIRTH OUTSIDE OF THE UNITED STATES THAT THEY ARE SOMEONE 305 00:28:38.792 --> 00:28:42.892 THAT HIGHEST. CHIEF JUSTICE RABNER: I'M ASKING ABOUT SITUATIONS WHERE YOU KNOW 306 00:28:42.892 --> 00:28:47.915 YOU'VE BEEN ADVISED BY DEFENSE COUNSEL YOU'RE AWARE OF THE DETAINER IS IT A PRACTICE OF THE 307 00:28:47.915 --> 00:28:53.050 OFFICE TO REACH OUT TO ICE AND SAY THIS CASE WE HAVE A PARTICULAR INTEREST IN PROSECUTING. 308 00:28:53.050 --> 00:28:59.043 PLEASE ALLOW US OR WE MAKE A REQUEST CONSISTENT WITH ONE OF THE OPTIONS IN THE TOOL KIT 309 00:28:59.043 --> 00:29:06.697 DOE DOUGH I THINK IT'S THE RARITY OF NOTHING THAT. HAVING THAT INFORMATION BUT NO IT'S 310 00:29:06.697 --> 00:29:12.082 NOT I'M SORRY IT MIGHT HAVE BEEN SOMETHING THAT THE OFFICE CAN DO. JUSTICE NORIEGA: 311 00:29:12.082 --> 00:29:16.431 I THINK THE QUESTION HAS IT'S OFFICE DONE IT AND I WOULD FOLLOW-UP AND SAY IF THE OFFICE 312 00:29:16.431 --> 00:29:24.087 HAS DONE IT WHAT'S BEEN THE SUCCESS RATE IN OTHER WORDS WE'RE TALKING A LOT ABOUT EAMORPH 313 00:29:24.087 --> 00:29:29.609 USLY YOU CAN DO ALL OF THESE THINGS YOU CAN MAKE THESE ATTEMPTS HAS IT HAPPENED AND WHAT 314 00:29:29.609 --> 00:29:35.869 IS ICE'S RESPONSE WHAT HAS THE RESPONSE BEEN AND HAS THERE BEEN ANY MOVEMENT IN THE 315 00:29:35.869 --> 00:29:40.516 RELATIONSHIP BETWEEN YOUR PARTICULAR OFFICE AND ICE IN TRYING TRO CREATE SOME KIND OF BRIDGE 316 00:29:40.516 --> 00:29:45.791 TO SAY WE FOUND OUT ABOUT A CASE. WE'RE CURIOUS TO KNOW ABOUT IT. THAT IS THERE BEEN 317 00:29:45.791 --> 00:29:50.455 ANY MOVEMENT ON THAT. THE SPEAKER: SO I CAN'T SAY WITH ANY SKINS WE DO THIS. 318 00:29:50.455 --> 00:29:54.758 AGAIN THE INFORMATION I GAVE YOU IS THE INFORMATION I HAVE WITH REGARD TO THE 319 00:29:54.758 --> 00:30:01.504 EXPERIENCE OF MY OFFICE. I DON'T KNOW THAT WE'VE MADE ANY EFFORTS TO BRIDGE A GAP WITH 320 00:30:01.504 --> 00:30:08.249 ICE. I THINK THAT IS A PARTICULARLY FRAUGHT RELATIONSHIP. JUSTICE PIERRE-LOUIS: 321 00:30:08.249 --> 00:30:14.554 YOU THE AG CAN SPEAK MORE GENERALLY ON WHAT'S BEEN HAPPENING THROUGHOUT THE STATE BUT 322 00:30:14.554 --> 00:30:20.376 AS YOU MENTIONED EARLIER IN LOPEZ-CARRERA THAT DEFENDANT SPECIFICALLY THE STATE DID REACH 323 00:30:20.376 --> 00:30:25.367 OUT TO ICE DID ASK TO FILE AN APPLICATION FOR STAY OF REMOVAL AND DEFERRED ACTION AND 324 00:30:25.367 --> 00:30:32.050 BOTH WERE DENIED AND DEFENDANT WAS I GUESS ICE INDICATED THEY WOULD NOT DELAY HIS 325 00:30:32.050 --> 00:30:39.675 DEPORTATION SO I GUESS IT'S JUST A MIXED BAG AT TIMES WHAT MIGHT HAPPEN AS A RESULT. 326 00:30:39.675 --> 00:30:44.432 THE SPEAKER: I THINK THAT'S SOMETHING THAT RISES AND FALLS DEPENDING ON WHAT IS GOING 327 00:30:44.432 --> 00:30:48.642 ON IN THE IMMIGRATION CONTEXT ITSELF BUT AGAIN. JUSTICE WAINER APTER: YOU'VE 328 00:30:48.642 --> 00:30:54.465 STATED OR ALLUDED TO US POSSIBLY RECONSIDERING LOPEZ-CARRERA. WHAT SPECIFICALLY WOULD 329 00:30:54.465 --> 00:31:00.320 YOU ASK FOR THE HOLDING TO BE. MONICA DO OUTEIRO: SO I WOULD SPECIFICALLY ASK 330 00:31:00.320 --> 00:31:06.146 THIS COURT TO AND I I THINK IT'S PRESENTED BY THE FACTS OF THIS CASE. MS. LORD MADE THIS 331 00:31:06.146 --> 00:31:10.451 REQUEST. THIS WAS A CASE WHERE THE DEFENDANT DID NOT MEET THE REQUIREMENTS THE STATE 332 00:31:10.451 --> 00:31:15.207 BELIEVED FOR EVEN THE FILING OF A MOTION FOR DETENTION SO WE DID NOT MOVE FOR DETENTION. 333 00:31:15.207 --> 00:31:21.282 MS. LORD MADE THE REQUEST TO HAVE THE DEFENDANT' RELEASE REVOKED THAT IS SOMETHING THAT 334 00:31:21.282 --> 00:31:26.153 THE A CDL DID ASK THIS COURT TO WHERE WHETHER OR NOT A DEFENDANT CAN CONSENT TO DETENTION. 335 00:31:26.153 --> 00:31:30.595 IT WAS NOT ADDRESSED IN LOPEZ-CARRERA. I THINK IT IS PRESENTED BY THE FACTS OF THIS CASE. 336 00:31:30.595 --> 00:31:37.173 THE STATE DIDN'T CONSENT IT THAT AND I THINK JUDGE CADE EPBS DECISION YOU CAN SEE HE 337 00:31:37.173 --> 00:31:44.963 DIDN'T DO IT. HE BELIEVED FOR CLOSED HIM IF IT TOUCHED PORN IMMIGRATION. AGAIN THERE 338 00:31:44.963 --> 00:31:49.735 WAS NO REPRESENTATION BY MS. LORD THAT COULD BE MADE NOR ANY REPRESENTATION BY THE STATE 339 00:31:49.735 --> 00:31:55.555 THAT THIS DEFENDANT'S RISK FACTORS UNDER THE TRY ADD CHANGED. I THINK THE REASON THIS 340 00:31:55.555 --> 00:32:01.089 COURT NEEDS TO CONSIDER IT IS BECAUSE THE STATE'S EXPERIENCE HAS BEEN IN CASES WHERE DEFENDANTS 341 00:32:01.089 --> 00:32:07.792 DO NEED THE TRIAD OF CONCERNS FOR THE CJRA AND THE STATE FOOLS A MOTION FOR DETENTION 342 00:32:07.792 --> 00:32:11.850 IF THIS DEFENDANT HAD COMMITTED A CRIME THAT WAS A PRESUMPTION OF DETENTION. THE STATE 343 00:32:11.850 --> 00:32:19.099 WOULD HAVE MOVED FOR DETENTION THIS DEFENDANT COULD HAVE MOVED NEAR DETENTION. IF WE 344 00:32:19.099 --> 00:32:22.636 HAD MOVED FOR DEFENDANT BECAUSE THIS DEFENDANT WOULD HAVE GOTTEN WHAT HE WANTED HE COULD 345 00:32:22.636 --> 00:32:26.273 HAVE CONSENTED TO DETENTION. JUSTICE WAINER APTER: I'M JUST ASKING WHAT SHOULD 346 00:32:26.273 --> 00:32:32.434 THE HOLDING BE HOW SHOULD WE CHANGE LOPEZ-CARRERA DOUGH DO I I THINK IT SHOULD ALLOW DEFENDANTS 347 00:32:32.434 --> 00:32:38.291 TO CONSENT TO DETENTION TO REMOVE TO REVOKE DETENTION. CHIEF JUSTICE RABNER: 348 00:32:38.291 --> 00:32:46.789 LOPEZ-CARRERA WAS ABOUT READING THE STATUTE AND DEFINING LEGISLATIVE INTENT. IS THAT 349 00:32:46.789 --> 00:32:51.039 SUPPORTED IN EITHER OF THOSE SOURCES THE REQUEST YOU'RE MAKING NOW. MONICA DO 350 00:32:51.039 --> 00:32:57.009 OUTEIRO: I THINK IT IS NOT FOR CLOSED BY STATUTE IF THE IDEA I THINK THE STATUTE IS GETTING 351 00:32:57.009 --> 00:33:02.550 AT AND WHA LOPEZ-CARRERA WAS ADDRESSING WAS THE STATE'S REQUEST TO DETAIN THE DEFENDANT 352 00:33:02.550 --> 00:33:07.997 OVER HIS OBJECTION. I THINK I THINK THIS IS A DIFFERENT SITUATION IN THAT RESPECT AND 353 00:33:07.997 --> 00:33:15.763 I ALSO THINK IT'S. JUSTICE PATTERSON: ANY MECHANISM IN THE CJR FOR A SON SENT 354 00:33:15.763 --> 00:33:19.785 DETENTION. MONICA DO OUTEIRO: THERE'S NONE. JUSTICE PATTERSON: WOULDN'T 355 00:33:19.785 --> 00:33:26.565 THE LEGISLATURE HAVE INCLUDED THAT HAD IT ANTICIPATED THIS ALTERNATIVE ROUTE TO 356 00:33:26.565 --> 00:33:33.216 DETENTION SOMEBODY HAS SCORES ARE EXTREMELY LOW AND THERE'S REALLY NO INDICATION WHATSOEVER 357 00:33:33.216 --> 00:33:40.183 THAT THERE WOULD BE A BASIS FOR DETENTION UNDER THE STATUTE WHERE DO WE FIND IN THE STATUTE 358 00:33:40.183 --> 00:33:45.270 THE AUTHORITY TO HAVE A CONSENT PROCEDURE. MONICA DO OUTEIRO: I DON'T THINK 359 00:33:45.270 --> 00:33:50.390 THE LEGISLATURE CONSIDERED THIS ALL AT ALL. I THINK THE LEGISLATURE ASSUMED AND RIGHTFULLY 360 00:33:50.390 --> 00:33:55.164 SO THAT MOTION DEFENDANTS DO NOT WANT TO BE INCARCERATED. THERE'S NO BENEFIT TO THE 361 00:33:55.164 --> 00:34:02.826 DEFENDANT TO BE INCARCERATED PRIOR TO PRIOR TO TRIAL. AND I THINK THAT I MEAN MR. 362 00:34:02.826 --> 00:34:08.984 LOPEZ-CARRERA, THE TWO COMPANION CASES ALL OF THOSE DEFENDANTS PRAOEFRD THE OPTION OF BEING 363 00:34:08.984 --> 00:34:14.639 FREE IN THEIR COUNTRY OF ORIGIN RATHER THAN BEING DETAINED IN NEW JERSEY. WE NOW KNOW 364 00:34:14.639 --> 00:34:20.780 THAT NOT ALL DEFENDANTS BELIEVE THAT BECAUSE WE HAVE MR. REYES-RODRIGUEZ THAT'S PRESENTING 365 00:34:20.780 --> 00:34:25.020 THE ALTERNATIVE ACTION. CHIEF JUSTICE RABNER: IS IT YOUR ONS OR THE ATTORNEY 366 00:34:25.020 --> 00:34:28.369 GENERAL ASKED THE LEGISLATURE PUR SUITED THE ACTION THAT YOU'RE CONSIDERING APHEPBDZ THE 367 00:34:28.369 --> 00:34:32.301 LAW AND ALLOW DEFENDANTS TO CONSENT TO DETENTION. MONICA DO OUTEIRO: I CAN'T 368 00:34:32.301 --> 00:34:40.416 SPEAK FOR THE OFFICE OF TOERPBL. UNDER THE PROSECUTOR'S CODE OF ETHICS OUR ABILITY TO 369 00:34:40.416 --> 00:34:46.646 LOBBY THE LEGISLATURE IS I THINK CONSTRAINED. THERE ARE ORGANIZATIONS THAT DO THAT AND 370 00:34:46.646 --> 00:34:50.888 DO REACH OUT TO OUR OFFICE. CHIEF JUSTICE RABNER: SO NO. MONICA DO 371 00:34:50.888 --> 00:34:55.834 OUTEIRO: NO. TO BE HONEST WHEN EVE REACHED OUT TO THE ORGANIZATIONS AND I'VE PRESENTED 372 00:34:55.834 --> 00:35:02.319 THEM WITH WHAT ELSE YOU CAN FIX THOSE GO NO WHERE. JUSTICE NORIEGA: ISN'T IT 373 00:35:02.319 --> 00:35:07.165 POSSIBLE THAT WE COULD REACH THAT CONCLUSION WITHOUT NECESSARILY CHANGING LOPEZ-CARRERA 374 00:35:07.165 --> 00:35:12.816 IN THE SENSE THAT THAT WAS NOT THE PURPOSE OF THAT OPINION. THE PURPOSE OF THAT OPINION 375 00:35:12.816 --> 00:35:18.387 WAS A COURT NOT FINDING IMMIGRATION AS A REASON TO DETERMINE SOMEBODY HAD A PROBABILITY 376 00:35:18.387 --> 00:35:24.852 OF NOT RETURNING TO COURT. WHEREAS THE CONSENT ISSUE I THINK THERE'S PLENTY OF CIRCUMSTANCES 377 00:35:24.852 --> 00:35:30.454 WHERE DEFENDANTS WAIVE THEIR CONSTITUTIONAL RIGHTS IN ORDER TO MAKE A DECISION IN A 378 00:35:30.454 --> 00:35:35.227 PARTICULAR CIRCUMSTANCE EITHER BY APPLY OR GOING TO TRIAL OR WAIVING ALL SORTS THE RIGHTS 379 00:35:35.227 --> 00:35:41.396 THAT MAY BE NOT ARE NOT STATUTORILY REQUIRED ONE WAY OR THE OTHER IN OTHER TO HELPS THEMSELVES 380 00:35:41.396 --> 00:35:46.530 IN A PARTICULAR CASE SO THE IDEA OF SOMEBODY CONCEPTING TO CUSTODY TO GAIN JAIL CREDIT 381 00:35:46.530 --> 00:35:51.366 CONTINUE ONTO BE PRESENT BE ABLE TO PARTICIPATE IN THE CASE MIGHT ACTUALLY BE OF SOMETHING 382 00:35:51.366 --> 00:35:55.263 THAT WE WOULD ANTICIPATE IN OUR CRIMINAL JUSTICE. MONICA DO OUTEIRO: YES AND 383 00:35:55.263 --> 00:36:02.238 I THINK WHAT DISTURBS THE STATE IS THAT IT IS HAPPENING. DEFENDANTS WHO THE STATE BELIEFS 384 00:36:02.238 --> 00:36:09.832 MEET THE CYRA FACTOR IN SIMILAR IMMIGRATION AND HAVE SIMILAR INTERESTS ARE CONSENTING 385 00:36:09.832 --> 00:36:14.189 TO DETENTION REMAINING IN UNITED STATES AN BEING ABLE TO ANSWER THEIR CRIMINAL CHARGES 386 00:36:14.189 --> 00:36:20.211 AND THIS IS NOT AFFORDED TO. CHIEF JUSTICE RABNER: WE APPRECIATE YOUR CONCERN. 387 00:36:20.211 --> 00:36:25.790 HAS THERE BEEN A CASE IN WHICH AN APPEAL HAS BEEN SOUGHT OVERRULING WHERE A JUDGE SAID 388 00:36:25.790 --> 00:36:32.728 I'M NOT GOING TO ACCEPT AN CONSENT AND HOU WOULD WE A-ADDRESS IT IN THIS CASE DOUGH DO I 389 00:36:32.728 --> 00:36:38.338 I THIS THE COURT IS USUALLY THERE'S A ARGUMENT BY THE STATE IN THOSE CASES WHERE THAT 390 00:36:38.338 --> 00:36:43.481 THE DEFENDANT'S DETENTION IT REQUIRED AND THE JUDGE HAS NOT REFUSING TO KPEP DEFENDANT'S 391 00:36:43.481 --> 00:36:49.916 CONSENTS AND THE STATE AS ARGUMENT THAT THEY SHOULD BE DETAINED AND UNDER THE CJRA. 392 00:36:49.916 --> 00:36:51.936 JUSTICE WAINER APTER: I DIDN'T UNDERSTAND THAT. MONICA DO OUTEIRO: IN THOSE 393 00:36:51.936 --> 00:36:57.254 CASES IT'S NOT GOING BEFORE THE COURT SIMPLY AS AN ISSUE OF YOU'RE NOT ACCEPTING MY CONSENT. 394 00:36:57.254 --> 00:37:03.799 THIS IS THE CASE RIGHT THIS IS THE CASE WHERE THE JUDGE. CHIEF JUSTICE RABNER: 395 00:37:03.799 --> 00:37:06.784 WAS THAT PRESENTED TO THE COURT IN THIS CASE. MONICA DO OUTEIRO: YES IT WAS. 396 00:37:06.784 --> 00:37:11.184 CHIEF JUSTICE RABNER: AS PART OF THE REQUEST THAT THE COURT REVIEW THIS DECISION. 397 00:37:11.184 --> 00:37:15.097 MONICA DO OUTEIRO: BEFORE THIS COURT OR PRESENTED TO THE TRIAL COURT. IT WAS 398 00:37:15.097 --> 00:37:18.365 PRESENTED TO THE TRIAL COURT. CHIEF JUSTICE RABNER: OR THIS COURT. 399 00:37:18.365 --> 00:37:20.586 MONICA DO OUTEIRO: IT'S IN THE STATE'S BRIEFING IN THIS CASE. CHIEF JUSTICE RABNER: 400 00:37:20.586 --> 00:37:28.627 IS IT ABISSUE ON WHICH THIS COURT GRANTED REVIEW. DON'T WE FLEED THAT IN ORDER TO ISSUE THE 401 00:37:28.627 --> 00:37:33.755 RULING THAT YOU'RE SUGGESTING IS APPROPRIATE. MONICA DO OUTEIRO: IT WAS IN 402 00:37:33.755 --> 00:37:39.274 THE STATE'S BRIEFING, YOUR HONOR. I DON'T I CAN'T SPEAK TO WHAT THE COURT PERCEIVED 403 00:37:39.274 --> 00:37:45.029 THIS ISSUE TO BE ON LEAVE TO A PEEL BUT IT IS PRESENTED IN THE RECORD. IT WAS PRESENTED 404 00:37:45.029 --> 00:37:51.021 BY AMICUS AND IN LOPEZ-CARRERA. JUSTICE WAINER APTER: AND YOUR POINT IS HERE 405 00:37:51.021 --> 00:37:55.880 THAT THE DEFENDANT REQUESTED TO BE DETAINED BUT THE JUDGE SAID NO. MONICA DO 406 00:37:55.880 --> 00:38:00.717 OUTEIRO: YES THE DEFENDANT IN THIS CASE REQUESTED THAT HIS RELEASE BE REVOKED AND THE 407 00:38:00.717 --> 00:38:05.895 JUDGE SAID KNOW BECAUSE OF LOPEZ-CARRERA. JUSTICE WAINER APTER: AND YOUR REQUEST 408 00:38:05.895 --> 00:38:11.090 IS THAT WE STATE THAT A JUDGE CAN SAY YES DESPITE LOPEZ-CARRERA. MONICA DO OUTEIRO: 409 00:38:11.090 --> 00:38:18.353 THAT WOULD BE IN THE A SOLUTION FOR IT DEFENDANT'S CASE BUT IT WOULD BE AN. 410 00:38:18.353 --> 00:38:22.197 JUSTICE HOFFMAN: WHAT STEPS WERE TAKEN IN THIS CASE TO VET WHETHER A VIRTUAL APPEARANCE 411 00:38:22.197 --> 00:38:32.766 WAS AN OPTION. INCLUDING LOGISTICS, INTEGRITY AND CONVERSATIONS WITH OPPOSING COUNSEL 412 00:38:32.766 --> 00:38:38.809 AS TO WHETHER THERE COULD BE AN AGREEMENT AS TO HOW TO PROCEED VIRTUALLY WHAT WAS ACTUALLY 413 00:38:38.809 --> 00:38:42.875 DONE HERE. MONICA DO OUTEIRO: BECAUSE THE COURT TRIAL COURT REJECTED THAT OPTION 414 00:38:42.875 --> 00:38:48.005 IT WAS THE APPELLATE DIVISION THAT IN ITS DECISION SUGGESTED THAT THAT WAS THE SOLUTION 415 00:38:48.005 --> 00:38:52.654 AND. JUSTICE WAINER APTER: HE APPEARED VIRTUALLY RIGHT. MONICA DO OUTEIRO: 416 00:38:52.654 --> 00:38:57.349 HE APPEARED VIRTUALLY BEFORE TRIAL. JUSTICE PIERRE-LOUIS: TALKING ABOUT FOR 417 00:38:57.349 --> 00:39:03.625 TRIAL WERE ANY STEPS TAKEN TO DETERMINE HOW A VIRTUAL TRIAL WOULD WORK DOUGH TOE NO BECAUSE 418 00:39:03.625 --> 00:39:11.116 THE LOWER COURT ISSUED THE BENCH WARRANT AND THE REAL LIKE REALITY OF A VIRTUAL TRIAL 419 00:39:11.116 --> 00:39:16.238 WAS FIRST INTRODUCED OR FIRST ACCEPTED BY THE APPELLATE DIVISION. JUSTICE 420 00:39:16.238 --> 00:39:21.513 HOFFMAN: BUT IF YOU'RE COMING BEFORE US AND SAYING THAT THERE ARE PROBLEMS ASSOCIATED 421 00:39:21.513 --> 00:39:28.996 WITH PROCEEDING VIRTUALLY HOW DO YOU KNOW THAT WITH REGARD TO THIS CASE UNLESS YOU'VE 422 00:39:28.996 --> 00:39:33.753 EXPLORED THAT OPTION? MONICA DO OUTEIRO: SO. JUSTICE HOFFMAN: FOR 423 00:39:33.753 --> 00:39:40.616 TRIAL. I UNDERSTAND THAT AS JUSTICE PIERRE-LOUIS SAID HE HAD APPEARED BUT HOW DO YOU 424 00:39:40.616 --> 00:39:48.622 KNOW THAT THOSE PROBLEMS COULD NOT BE RESOLVED IF THOSE CONVERSATIONS AND THAT ANALYSIS 425 00:39:48.622 --> 00:39:53.351 AND EXPIRATION HAS NOT HAPPENED. MONICA DO OUTEIRO: WE HAVE HAD OTHER MATTERS 426 00:39:53.351 --> 00:39:59.216 THAT HAVE PROCEEDED VIRTUALLY. JUSTICE HOFFMAN: THEY ALL VARY CASE BY CASE. 427 00:39:59.216 --> 00:40:02.504 MONICA DO OUTEIRO: I DON'T THINK THE LOGISTIC VARY CASE BY CASE BECAUSE THE 428 00:40:02.504 --> 00:40:09.677 LOGISTICS HAVE TO COME FROM THE COURT. THERE NEEDS TO BE THE MECHANISM IN PLACE AND THOSE 429 00:40:09.677 --> 00:40:13.333 DON'T COME FROM THE STATE AND THE DEFENDANT GETTING TOGETHER OF THE THE DEFENDANT'S 430 00:40:13.333 --> 00:40:21.377 ABILITY IN THIS CASE TO APPEAR VIRTUALLY FOR NON -- FOR CONTESTED MOTIONS OR THE JURY'S 431 00:40:21.377 --> 00:40:26.997 NOT PRESENT IS VERY DIFFERENT -- AND I THINK THESE ARE THE STATE'S CONCERNS IS DIFFERENT 432 00:40:26.997 --> 00:40:33.838 FROM THE DEFENDANT BEING PRESENT FOR TRIAL BECAUSE PRESENCE IS MORE THAN JUST WHAT A 433 00:40:33.838 --> 00:40:38.550 WITNESS IS. A WITNESS APPEARS VIRTUALLY. YOU CAN SEE THEM YOU CAN HEAR THEM. THEY CAN 434 00:40:38.550 --> 00:40:42.683 SEE YOU. YOU CAN HEAR THEM AND IF YOU CAN'T IT'S VERY OBVIOUS THAT'S TPHOP HAPPENED. 435 00:40:42.683 --> 00:40:48.539 PRESENTS OF THE DEFENDANT REQUIRES MORE. I DON'T KNOW THAT IT'S A SOLUTION THAT WE CAN 436 00:40:48.539 --> 00:40:54.519 COME TO US JUDGE THE STATE AND THE DEFENDANT AND THE STATE HAS HAD OTHER PROCEEDINGS IN 437 00:40:54.519 --> 00:41:00.451 MONMOUTH COUNTY WE'VE HAD ONE PCR HEARING HAPPEN. CHIEF JUSTICE RABNER: BUT 438 00:41:00.451 --> 00:41:04.224 NO TRIALS. MONICA DO OUTEIRO: THIS WAS WITH A DEFT THAT WAS REMOVED TO KWAT 439 00:41:04.224 --> 00:41:10.173 MALLA. I CAN'T RECALL THE NAME AT THE MOMENT. I DON'T WANT TO GUESS. JUSTICE 440 00:41:10.173 --> 00:41:15.697 PATTERSON: WE'RE TALKING ABOUT THE PCR. THE SPEAKER: PCR HEARING. THAT'S WHAT 441 00:41:15.697 --> 00:41:20.394 WE'VE EXPERIENCED. JUSTICE PATTERSON: NO JURY TRIALS. THE SPEAKER: 442 00:41:20.394 --> 00:41:26.443 QUITE HONESTLY THE RULES IN PLAY TALK ABOUT WITNESSES TESTIFYING. NO LANCE BEING TALKS 443 00:41:26.443 --> 00:41:32.883 ABOUT WITNESSES TESTIFYING VIRTUALLY AND THAT'S JUST A VERY I -- I THINK TO SOME EXTENT 444 00:41:32.883 --> 00:41:38.784 I HATE TO SAY COMMON TENSE, YOUR HONOR, BUT THOSE ARE VERY DIFFERENT IN THAT WHETHER OR NOT 445 00:41:38.784 --> 00:41:41.886 WE CAN EARN SURE THE DEFENDANT IS PRESENT IN THE COURTROOM. JUSTICE WAINER APTER: 446 00:41:41.886 --> 00:41:47.927 IF THE DEFENDANT HASN'T CONSENTED TO APPEAR. MONICA DO OUTEIRO: THE DEFENDANT 447 00:41:47.927 --> 00:41:54.429 HAS SAID NO AND YES AND I THINK PHRT APPELLATE DIVISION WOULD CONSENT WHICH IS WHY THE 448 00:41:54.429 --> 00:41:56.975 APPELLATE DIVISION CAME TO THE RESOLUTION. JUSTICE WAINER APTER: WHICH WOULD 449 00:41:56.975 --> 00:42:01.282 REQUIRE WAIVING THE CONSTITUTIONAL RITE TO BE PRESENT, ETC. MONICA DO OUTEIRO: 450 00:42:01.282 --> 00:42:08.119 I A-DON'T WANT TO SPEAK FOR DEFENDANT BUT I THINK THE ASSUMPTION IS THAT THEY'RE WAIVING 451 00:42:08.119 --> 00:42:12.244 THE RIGHT TO BE PHYSICALLY PRESENT BUT THEY'RE ASSUMING A RIGHT TO BE VIRTUALLY PRESENT 452 00:42:12.244 --> 00:42:20.239 AND ALL THAT THAT ENCOMPASSES. AGAIN THE STATE WE HAVE -- IF THIS IS A STEP THE COURT 453 00:42:20.239 --> 00:42:26.006 WANTS US TO MAKE THAT'S -- WE CAN DEAL WITH THAT BUT THE STATE'S INTEREST IS ALWAYS IN 454 00:42:26.006 --> 00:42:30.102 THAT TRIALS ARE JUST AND FAIR FOR BOTH OUR VICTIMS AND FOR THE DEFENDANT. WE HAVE NO 455 00:42:30.102 --> 00:42:36.067 INTEREST IN HAVING, YOU KNOW, TRIALS REVERSED ON APPEAL. AND WITHOUT DETERMINATIONS ON 456 00:42:36.067 --> 00:42:42.563 HOW THIS HAPPENS, WITHOUT GUYS TO TRIAL COURTS. COURTS WANTS TO GET IT RIGHT AND THE 457 00:42:42.563 --> 00:42:47.228 WAY TO DO THAT IS TO HAVE TKPWAOEUPBGS FROM TR COURT ON HOW TO HANDLE IT AND THE LOGISTICS 458 00:42:47.228 --> 00:42:52.645 OF HOW TO DO IT. THE ONE PCR WE DID WHERE THE DEFENDANT WAS APPEARING VIRTUALLY IT WAS 459 00:42:52.645 --> 00:42:59.422 THREE WITNESSES. ONEFY NIGHT ISSUE IT TOOK OVER FIVE DAYS IN COURT. EVERY SESSION WAS 460 00:42:59.422 --> 00:43:05.847 STOPPED DUE TO A LOSS OF INTERNET CONNECTION WITH THE DEFENDANT SO THERE WAS NEVER A FULL 461 00:43:05.847 --> 00:43:13.455 DAY. DEFENDANT DID TESTIFY. THERE APPEARED TO BE MORE TECHNOLOGICAL ISSUES DURING HIS 462 00:43:13.455 --> 00:43:19.150 CROSS-EXAMINATION THAN OTHER PARTS. I THINK THE DIFFICULTY THE COURT'S ANTICIPATE WITH 463 00:43:19.150 --> 00:43:25.598 REGARDS CROSS-EXAMINATION HIM OR CONDUCTING CROSS-EXAMINATION THAT INVOLVED DOCUMENTS 464 00:43:25.598 --> 00:43:32.296 SO I THINK THIS IS A BIG STEP AND I THINK TO, YOUR HONOR,'S QUESTION I THINK THAT THIS IS 465 00:43:32.296 --> 00:43:38.240 A STEP THAT OUR COURTS CAN TAKE BY JUST THE PARTIES GETTING TOGETHER AND FIGURING IT OUT. 466 00:43:38.240 --> 00:43:42.624 JUSTICE HOFFMAN: YOU SAID THE COURT WANT TO GET IT RIGHT AND OFTENTIMES ONE 467 00:43:42.624 --> 00:43:48.055 BIG STEP FOR THE COURT TO GET IT RIGHT IS FOR THE PARTIES TO COME TOGETHER AND SAY HERE'S 468 00:43:48.055 --> 00:43:53.410 WHAT WE UNDERSTAND CAN HAPPEN. HERE'S A PROCESS. WE BOTH ACCEPT. HERE'S HOW THIS WILL 469 00:43:53.410 --> 00:43:59.691 WORK AND IT FEELS TO ME LIKE ASKING THE COURT TO GET IT RIGHT BEFORE THE PARTIES HAVE 470 00:43:59.691 --> 00:44:06.161 EXPLORED WHAT THE OPTION IS AND WHAT IS A VERY NOVEL AND NEW CIRCUMSTANCE FEELS A LITTLE BIT 471 00:44:06.161 --> 00:44:10.740 LIKE WE'RE PUTTING THE CART BEFORE THE HORSE. I MEAN WE SEE OFTENTIMES WHEN THE PARTIES 472 00:44:10.740 --> 00:44:16.301 GET TOGETHER AND TRY AND WORK OUT THE LOGISTICS AND THE DETAILS AND I DON'T WHAT FROM 473 00:44:16.301 --> 00:44:21.338 MY UNDERSTANDING NOTHING HAS CHANGED HERE FROM THE FACT THAT DEFENDANT WAS ABLE TO APPEAR 474 00:44:21.338 --> 00:44:30.957 REMOTELY UNTIL NOW SO I'M JUST NOW SURE HOW WE -- I I FEEL HAM STRUNG BY NOT KNOWING WHAT 475 00:44:30.957 --> 00:44:36.604 IS IT THAT THE PARTIES JOINTLY CONCEDE IS A POSSIBILITY OR IS NOT A POSSIBILITY OR WHERE 476 00:44:36.604 --> 00:44:40.427 IS THAT DISAGREEMENT. MONICA DO OUTEIRO: SO I THINK THIS IS NOT AN ISSUE 477 00:44:40.427 --> 00:44:44.687 THAT THE PARTIES CAN ADDRESS WITHOUT INPUT FROM THE COURT BECAUSE IT LIKE THE TECHNOLOGICAL 478 00:44:44.687 --> 00:44:50.788 ASPECTS OF THIS REQUIRE COURT INPUT. I THINK THAT'S WHY I MENTIONED SOME OF THE VIRTUAL 479 00:44:50.788 --> 00:45:00.928 STEPS THAT WE TOOK DURING COVID CAME WITH STEAK HOLDERS AN PILOT PROGRAMS. SO MS. LORD 480 00:45:00.928 --> 00:45:07.261 IS A CAPABLE ADVERSE. I DON'T THINK THAT SHE HAS THE ABILITY TO FIGURE OUT HOW THE COURSE 481 00:45:07.261 --> 00:45:10.668 IS GOING TO HANDLE. JUSTICE HOFFMAN: I'M NOT ASKING FOR THE PARTIES TO FIGURE 482 00:45:10.668 --> 00:45:17.265 IT THIS OUT. I'M ASKING FOR PARTIES TO PROVIDE INFORMATION GUIDANCE THAT ALLOWS THE COURT 483 00:45:17.265 --> 00:45:21.139 MAKE THAT DECISION. MONICA DO OUTEIRO: I THINK THE THERE'S A DIFFERENCE THE 484 00:45:21.139 --> 00:45:25.928 DEFENDANT APPEARING VIRTUALLY FOR COURT APPEARANCES IS DIFFERENT ONCE WE GET TO THE 485 00:45:25.928 --> 00:45:36.116 TRIAL BECAUSE OF THE JURY'S PRESENCE. THE WAYS THAT WE CAN FIGURE OUT IF DEFENDANT'S 486 00:45:36.116 --> 00:45:41.751 MISSING AN ARGUMENT ON JUST SAY A CONTESTED MOTION, NO TESTIMONY. YOU KNOW, IF DEFENDANT 487 00:45:41.751 --> 00:45:47.974 MISSES SOME OF THAT WE CAN EASILY JUST OR EASILY HAVE THAT RETOLD TO THE DEFENDANT OR 488 00:45:47.974 --> 00:45:52.740 DEFENDANT GO INTO A VIRTUAL BREAKOUT ROOM WITH COUNSEL AND ABOUT AEBL TO DISCUSS THAT. 489 00:45:52.740 --> 00:46:00.441 THAT -- THAT CAN'T HAPPEN IN THAT SAME WAY WITH A JURY PRESENT. RIGHT WE ALWAYS HAVE 490 00:46:00.441 --> 00:46:05.138 TO BE COULD GO ASSISTANT OF WHAT THE JURY SEE. JUSTICE PATTERSON: IT'S VERY 491 00:46:05.138 --> 00:46:11.040 KPHREUBLGTED I'M WONDERING IF THERE'S ANY CONSIDERATION OF WHAT HAPPENS IN COVID DURING 492 00:46:11.040 --> 00:46:19.525 COVID IN VARIOUS JURISDICTIONS WHEN THERE ACTUAL WERE CIVIL JURY TRIALS YOU CAN CONDUCTED. 493 00:46:19.525 --> 00:46:23.739 MONICA DO OUTEIRO: THAT I'M NOT SURE. AND THESE DIFFICULTIES ARE WHY I DON'T 494 00:46:23.739 --> 00:46:27.663 WANT TO SPEAK FOR THIS COURT TO THIS COURT THAT WOULD BE KINDS OF AWKWARD BUT I THINK 495 00:46:27.663 --> 00:46:33.625 THAT'S WHY DURING COVID WE NEVER TOOK THE STEP TO HAVE CRIMINAL TRIALS TO BE CONDUCTED 496 00:46:33.625 --> 00:46:40.973 VIRTUAL. WE DON'T EVEN ALLOW DWI TRIALS TO HAPPENED VIRTUAL. CHIEF JUSTICE 497 00:46:40.973 --> 00:46:45.491 RABNER: YOU HAD ANOTHER ARGUMENT WHICH IS SENTENCES CAN'T BE CARRIED AOUT AND I 498 00:46:45.491 --> 00:46:50.251 UNDERSTAND YOU'D LIKE TO COURT TO ADDRESS WHETHER TRIALS CAN BE CONDUCTED REMOTELY WHETHER 499 00:46:50.251 --> 00:46:57.274 STEPSES CAN BE SERVED REMOTELY AND LOPEZ-CARRERA AND OTHER THINGS. I WANTS TO COME BACK 500 00:46:57.274 --> 00:47:02.350 TO BASICS. AND THAT IS THE QUESTION OF THE BENCH WARRANT THAT BEGAN THIS PROCESS. WHAT 501 00:47:02.350 --> 00:47:06.796 HAVE OTHER STATES OTHER JURISDICTIONS DONE IN CIRCUMSTANCES LIKE THIS. MONICA DO 502 00:47:06.796 --> 00:47:15.883 OUTEIRO: I'M NOT AWARE, YOUR HONOR. CHIEF JUSTICE RABNER: IT WOULD BE HELPFUL 503 00:47:15.883 --> 00:47:19.862 IF THAT COULD BE PRESENTED TO THE COURT AS WELL. MONICA DO OUTEIRO: I'D BE 504 00:47:19.862 --> 00:47:24.314 HAPPY TO SUBMIT SAY PROEFT ARGUMENT BRIEF. CHIEF JUSTICE RABNER: WITHOUT HEARING 505 00:47:24.314 --> 00:47:28.301 FROM THE CLERK OF THE COURT. MONICA DO OUTEIRO: OF COURSE. CHIEF JUSTICE 506 00:47:28.301 --> 00:47:32.356 RABNER: OTHER QUESTIONS ANYTHING YOU'D LIKE TO ADD DOUGH TOE NO, YOUR HONOR, THANK YOU 507 00:47:32.356 --> 00:48:13.624 SO MUCH. NATHANIEL F. RUBIN: GOOD MORNING, YOUR HONORS, AND MAY IT PLEASE THE 508 00:48:13.624 --> 00:48:20.583 COURT I WANT TO START WITH THREE POINTS ACCOUNT BUILT AN BENCH WARRANTS AND AM OF COURSE 509 00:48:20.583 --> 00:48:24.932 HAPPY TO ANSWER ANY QUESTIONS THAT WOULD BE HELPFUL TO THE COURT. FIRST A DEFENDANT'S 510 00:48:24.932 --> 00:48:31.212 REMOTE APPEARANCE AT TRIAL SHOULD BE QUITE RARE. WHILE THIS COURT RULES FORMLY AUTHORIZE 511 00:48:31.212 --> 00:48:36.860 A COURT SHOULD PERMIT TESTIMONY ONLY IN UNUSUAL CASES IN WHICH THE DEFENDANT CAN MOCK 512 00:48:36.860 --> 00:48:42.638 A CONVINCING SHOWING THAT THEIR ABS IS TRULY INVOLUNTARY AND ALSO WHERE THE COURT IS FULLY 513 00:48:42.638 --> 00:48:49.320 SATISFIED THAT THERE'S TPHRO RISK OF GAMES MAN SHIP OF UNFAIRNESS OR TKAEUPB ARE TO VICTIMS 514 00:48:49.320 --> 00:48:55.205 WITNESSES OR TO COURT'S TRUTH SEEKING FUNCTION. THAT INCLUDES BUT IS NOT LIMITED TO ENSURING 515 00:48:55.205 --> 00:49:00.535 TECHNOLOGY ANAL OTHER SAFE GUARDS PRESENT ARE SUFFICIENT TO PROTECT THE INTEGRITY OF THE 516 00:49:00.535 --> 00:49:05.352 PROCEEDING AND THAT'S A BAR THAT MOST OUT OF COUNTRY DEFENDANTS WILL LIKELY BE UNABLE 517 00:49:05.352 --> 00:49:10.232 TO MEET. INDEED GIVEN THE CHARGES HERE IT MIGHT BE HARD TO MEET IN THIS CASE WHERE THERE'S 518 00:49:10.232 --> 00:49:14.975 AN INDIVIDUAL VICTIM AND OR AT LEAST BASE ON THE IMMIGRATION RECORD THE DEFENDANT HAS 519 00:49:14.975 --> 00:49:21.173 INDICATED AN INTEREST IN PROVING AN IDENTITY DEFENSE. MOST INDICATIONS WHERE THIS WOULD 520 00:49:21.173 --> 00:49:25.307 BE APPROPRIATE WOULD BE CRIMES THAT WHERE THE DEFENDANT'S CREDIBILITY AND TESTIMONY ARE 521 00:49:25.307 --> 00:49:28.980 UNLIKELY TO MAKE A DIFFERENCE IN THE DETERMINATION OF THE FACTS. JUSTICE 522 00:49:28.980 --> 00:49:33.575 WAINER APTER: CAN YOU SAY ONE MORE TIME WHY IT WOULD BE UNLIKELY TO WORK IN THIS CASE. 523 00:49:33.575 --> 00:49:36.786 NATHANIEL F. RUBIN: SO IN THIS CASE WHERE THERE'S A INDIVIDUAL VICTIMS THE 524 00:49:36.786 --> 00:49:42.433 VICTIM MAY HAVE AN INTEREST IN CONFRONTSING THE DEFENDANT IN PERSON AND ADDITIONALLY WRB 525 00:49:42.433 --> 00:49:46.439 DEFENDANT INDICATED IN REMOVAL PROCEEDINGS IN IMMIGRATION COURT A DISPUTE BASED ON 526 00:49:46.439 --> 00:49:51.588 IDENTIFICATION AND MISIDENTIFIED INDICATION IF THE DEFENDANT PURSUES THAT KIND OF DEFENSE 527 00:49:51.588 --> 00:49:57.397 THE DEFENDANT'S PHYSICAL PRESENTS MAY BE PRARL LEVEL. JUSTICE PATTERSON: IN OTHER 528 00:49:57.397 --> 00:50:07.987 WORDS THE DEFENDANT TOOK THE CASE THAT HE WAS NOT THE PERSON PO COMMITTED THE CRIME. 529 00:50:07.987 --> 00:50:09.833 NATHANIEL F. RUBIN: YES. CHIEF JUSTICE RABNER: ARE YOU SAYING THAT TRIALS CAN 530 00:50:09.833 --> 00:50:14.654 BE CONDUCTED INVESTIGATORLY FAB AND C ARE SATISFIED OR ARE YOU SAYING WE SHOULDN'T BE 531 00:50:14.654 --> 00:50:18.864 GOING DOWN THAT ROAD BECAUSE OF ABC AND D. NATHANIEL F. RUBIN: WE'RE SAYING 532 00:50:18.864 --> 00:50:23.819 IN RARE CASES WHERE ABC AND D ARE SATISFIED YES THOSE WOULD BE THE TYPES OF CASES WHERE 533 00:50:23.819 --> 00:50:29.189 A DEFENDANT COULD VIRTUALLY APPEAR AT TRIAL BUT AGAIN THOSE ARE A SMALL MINORITY OF CASES. 534 00:50:29.189 --> 00:50:33.516 JUSTICE WAINER APTER: SO WHEN THE DEFENDANT ARGUES THAT THEY DID NOT COMMIT 535 00:50:33.516 --> 00:50:39.555 THE CRIME BECAUSE THEY WEREN'T PRESENT YOU'RE SAYING THAT COULDN'T HAPPEN VIRTUALLY. 536 00:50:39.555 --> 00:50:44.443 NATHANIEL F. RUBIN: WE'RE SAYING THAT THE DETERMINATION ABOUT WHERE ABOUT WHETHER 537 00:50:44.443 --> 00:50:50.undefined A DEFENDANT MIGHT BE ABLE TO TESTIFY VIRTUALLY SHOULD BE SENSITIVE TO THE LIKELY 539 00:50:55.227 --> 00:51:01.661 CRIME WAS COMMITTED BY THE DEFENDANT OR BY ANOTHER PERSON THAT TURNS ON PARTICULAR 540 00:51:01.661 --> 00:51:06.828 ASPECTS OF IDENTIFICATION FOR INSTANCE, THE DEFENDANT'S ALLEGED TATTOOS IN THIS CASE. 541 00:51:06.828 --> 00:51:10.739 THAT MIGHT BE AN INSTANCE WHERE THE PHYSICAL PRESENCE OF THE DEFENDANT IN THE COURTROOM 542 00:51:10.739 --> 00:51:17.031 IS PARTICULARLY PROBATIVE TO THE DETERMINATION FACTS. THALGTS IN CONTRAST FOR IN TPREUPS 543 00:51:17.031 --> 00:51:24.680 TO A CASE WHERE A DEFENDANT PERHAPS A DRUG POSSESSION OR GUN POSSESSION INDICATION WHERE 544 00:51:24.680 --> 00:51:33.282 THERE MIGHT BE BODY CAM FOOTAGE THERE MIGHT BE THINGS DETERMINE FIT OF THE FACTS. 545 00:51:33.282 --> 00:51:37.525 JUSTICE NORIEGA: WHERE DOES THAT HRAOEFP US IN TERMS OF WHETHER WHERE YOUR TEST IT SEPARATED 546 00:51:37.525 --> 00:51:42.632 REMOTE CAN'T BE DONE IN THIS PARTICULAR TYPE OF TRIAL WHAT'S THE ALTERNATIVE BENCH WARRANTS 547 00:51:42.632 --> 00:51:47.277 AND THE CASE SITS LANGUISHING. NATHANIEL F. RUBIN: WE THINK THAT IF REMOTE 548 00:51:47.277 --> 00:51:52.605 APPEARANCE AT TRIAL ISN'T POSSIBLE THE ABILITY TO CONTINUE THE CASE SHOULD THE DEFENDANT 549 00:51:52.605 --> 00:51:58.163 RETURN TO THE UNITED STATES AND EITHER THROUGH A CHANGE IN FEDERAL IMMIGRATION ENFORCEMENT 550 00:51:58.163 --> 00:52:02.686 DISCRETION FROM THE FEDERAL GOVERNMENT AN UNAUTHORIZED REENTRY TO THE UNITED STATES AN 551 00:52:02.686 --> 00:52:08.322 RESUME THE CASE THEN ARE THE BEST WAYS TO ENSURE THAT A TRIAL CAN BE HELPED WHICH MEETS 552 00:52:08.322 --> 00:52:13.021 THE SAFE GUARDS FOR HOLDING TRIALS. JUSTICE NORIEGA: ARE YOU AWARE OF WHAT 553 00:52:13.021 --> 00:52:18.540 THE LIKE HOOD IS OR WHAT THE HISTORY IS IN OUR STATE OF PEOPLE PEOPLE BEING ABLE TO COME 554 00:52:18.540 --> 00:52:26.090 BACK IN WITH A BENCH WARRANTS AFTER INFORMINGS TO BE ABLE TO FACE CRIMINAL PROSECUTION. 555 00:52:26.090 --> 00:52:28.880 NATHANIEL F. RUBIN: I COULDN'T SPEAK TO THE STATISTICS BUT WITH I CAN SPEAK 556 00:52:28.880 --> 00:52:32.698 TO THE WAYS WHICH SOMEBODY CAN COME BACK TO THE UNITED STATES. OBVIOUSLY EXTRADITION 557 00:52:32.698 --> 00:52:38.867 IS A PARTICULARLY RARE WAY IN WHICH SOMEBODY COMES BACK. THERE MAY BE EXTRADITIONS FROM 558 00:52:38.867 --> 00:52:44.047 MEXICO TO THE WHOLE OF UNITED STATES MUCH MORE COMMON IS SOMEONE EVENTS TO THE UNITED STATES 559 00:52:44.047 --> 00:52:49.100 LIKE PAROLE AND MUCH MORE COMMON THAN THAT IS SOMEBODY EARTHS ENTERS THE UNITED STATES 560 00:52:49.100 --> 00:52:53.679 WITHOUT ANY KINDS OF LEGAL AUTHORIZATION AFTER THEY'VE BEEN REMOVED. WHAT A BENCH WARRANTS 561 00:52:53.679 --> 00:52:58.507 ALLOWS WHERE SOMEBODY COMES BACK IN THOUGH IS IF THEY ARE SUBSEQUENTLY ARRESTED IN ANOTHER 562 00:52:58.507 --> 00:53:03.763 JURISDICTION OR INDEED IN NEW JERSEY FOR THEM TO SUBSEQUENTLY BE ABLE TO BE BROUGHT TO 563 00:53:03.763 --> 00:53:08.214 NEW JERSEY TO CONTINUE ONTO FACE THE CRIMINAL PROCEEDINGS AGAINST THEM. JUSTICE 564 00:53:08.214 --> 00:53:14.050 NORIEGA: SO ESSENTIALLY LEAVES THE CASE LANGUISHING UNLESS THE DEFENDANT THEMSELVES 565 00:53:14.050 --> 00:53:18.159 CHOOSE TO REENTER THE COUNTRY AND HAPPEN TO BE ARRESTED THEN HAPPEN TO BE BROUGHT BACK 566 00:53:18.159 --> 00:53:24.461 TO NEW JERSEY FOR PROSECUTION. OTHERWISE THERE'S NO THE CASE IS EFFECTIVELY ADMINISTRATIVELY 567 00:53:24.461 --> 00:53:28.288 CLOSED FOR THE TIME BEING. NATHANIEL F. RUBIN: SO THE CASE WOULD BE UNABLE 568 00:53:28.288 --> 00:53:33.331 TO PROCEED YES IN THAT CASE. BUT WE NONETHELESS THING THAT IT'S STILL PRESERVES THE INTERESTS 569 00:53:33.331 --> 00:53:37.085 OF THE STATE IN CONTINUING A PROSECUTION SHOULD THE BENCH WARRANT CONTINUE TO BE OUTSTANDING 570 00:53:37.085 --> 00:53:42.184 THE STATE MAINTENANCE AN INTEREST IN ENSURING THE PUBLIC SAFETY OF THE CITIZENS PARTICULARLY 571 00:53:42.184 --> 00:53:46.171 IF A DEFENDANT SHOULD REENTERS THE COUNTRY AND REENTER THE STATE THE STATE MAINTENANCE 572 00:53:46.171 --> 00:53:52.076 AND INTEREST IN PROVING A CRIME WAS COMMITTED IF IT'S POSSIBLE AND IMPOSING SENTENCE. 573 00:53:52.076 --> 00:53:56.253 JUSTICE PATTERSON: SO WHAT HAPPENS I DON'T KNOW YOUR COLLEAGUES USE THE FEMUR 574 00:53:56.253 --> 00:54:03.235 THE KILL LIST BUT I ASSUME THAT'S INACTIVE LIST OF SOME SORT WHERE CASES ARE PUT 575 00:54:03.235 --> 00:54:09.196 ADMINISTRATIVELY BECAUSE THEY ARE NOT BEING PURSUED FOR THE MOMENT, IS THAT WHAT THAT IS? 576 00:54:09.196 --> 00:54:14.880 NATHANIEL F. RUBIN: I CAN'T SPEAK QUITE TO THE PROCEEDINGS THAT ARE USED IN 577 00:54:14.880 --> 00:54:19.956 EVERY INDIVIDUAL COURT AS TO HOW CASES AR ADMINISTRATIVELY HANDLED. JUSTICE 578 00:54:19.956 --> 00:54:24.631 PATTERSON: LET'S SAY THERE IS A LIST SOMEWHERE WHATEVER IT MAY BE CALLED WHERE CASES THAT 579 00:54:24.631 --> 00:54:32.351 ARE NOT CURRENTLY BEING PROSECUTED BECAUSE SOMEONE HAS BEEN DEPORTED OR ARE ON THAT 580 00:54:32.351 --> 00:54:39.066 LIST, IS THERE A DIFFERENT STATUS IN THOSE CASES DEPENDING ON WHETHER THERE IS A BENCH 581 00:54:39.066 --> 00:54:42.456 WARRANTS. NATHANIEL F. RUBIN: I WOULD NOT BE ABLE TO ANSWER THAT QUESTION WITH 582 00:54:42.456 --> 00:54:46.515 CERTAINTY, YOUR HONOR. CHIEF JUSTICE RABNER: AOUFR LEFT THE DOOR OPEN FOR 583 00:54:46.515 --> 00:54:50.300 CERTAIN TRIALS AND I'M ASSUMING THESE WOULD BE SERIOUS CASES THAT THE STATE WANTED TO 584 00:54:50.300 --> 00:54:55.974 PURSUE. HOW WOULD SENTENCE BE SERVED. NATHANIEL F. RUBIN: SO WHEN THIS COMES 585 00:54:55.974 --> 00:55:01.756 TO SENTENCING WE SEE THERE IS A FEW DIFFERENT CONSIDERATION THAT WOULD APPLY HERE SO THE 586 00:55:01.756 --> 00:55:06.061 FIRST OF THESE IS YES IT WOULD BE POSSIBLE IN MOST CASES THAT SOMEBODY TO BE EXTRADITED 587 00:55:06.061 --> 00:55:10.729 TO SURVEY SENTENCE BUT EVEN IF SOMEBODY COULDN'T OR WOULDN'T BE EXTRADITED TO SERVE SAY 588 00:55:10.729 --> 00:55:14.652 SENTENCE THE POSSIBILITY THAT THE SENTENCE WOULD BE SERVED SHOULD SOMEBODY RETURN TO THE 589 00:55:14.652 --> 00:55:19.069 UNITED STATES IS STILL A STRONG INTEREST THAT THE STATE HAS FOR INSTANCE, IN A CASE LIKE 590 00:55:19.069 --> 00:55:23.947 RESTITUTION IF SOMEBODY SHOULD RETURN TO THE UNITED STATES FOR WHATEVER REASON WE THINK 591 00:55:23.947 --> 00:55:28.899 THERE'S STILL AN INTERESTS THAT THE STATE HAS IN ENINSURING SAO THE VICTIM RECEIVES 592 00:55:28.899 --> 00:55:33.114 RESTITUTION. THE STILL HAS INTEREST IN COLLECTING A FINE IF SOMEBODY SHOULD COME BACK 593 00:55:33.114 --> 00:55:38.197 TO THE STATE WHO SHOULD BE SCARCE INCARCERATED IN ORDER TO PROTECT THE PUBLIC ENSURING 594 00:55:38.197 --> 00:55:41.519 THAT HE ARE INCARCERATED. JUSTICE WAINER APTER: WOULD YOU THEN NEED A BENCH 595 00:55:41.519 --> 00:55:47.156 WARRANT IN ORDER FOR THAT THIS HAPPEN OR ONCE THERE IS A SENTENCE DOES THAT ACT AS A BENCH 596 00:55:47.156 --> 00:55:51.199 WARRANTS WITHOUT NEEDING A BENCH WARRANT. NATHANIEL F. RUBIN: MY UNDERSTANDING 597 00:55:51.199 --> 00:55:56.212 IS THAT A BENCH WARRANTS OPERATES ESSENTIALLY THE ADMINISTRATIVE TOOL FOR SOMEBODY WHO 598 00:55:56.212 --> 00:56:01.667 HAS MISSED A COURT APPEARANCE TO BE BROUGHT INTO COURT. SO I'M NOT CERTAIN IF A SENTENCE 599 00:56:01.667 --> 00:56:08.986 WOULD OFBGS OFFICIALLY QUALIFY AS A PWARPT OR WOULD BE USED AS THE ADMINISTRATIVE TOOL 600 00:56:08.986 --> 00:56:11.975 TO GET THERE. JUSTICE WAINER APTER: I'M ASKING BECAUSE IF THE QUESTION IS IF 601 00:56:11.975 --> 00:56:16.251 EVERYONE AGREES THAT A BENCH WARRANTS WOULD BE NECESSARY AT SOME POINT IN ORDER FOR THE 602 00:56:16.251 --> 00:56:21.420 PERSON TO ACTUALLY SERVE THEIR SENTENCE IF THEY ENDS UP BACK IN THE UNITED STATES THEN 603 00:56:21.420 --> 00:56:29.255 ARE WE JUST DEBATING WHEN THAT HAPPENS BEFORE A VIRTUAL TRIAL OR ONLY AFTER VIRTUAL TRIAL 604 00:56:29.255 --> 00:56:33.050 AND SOME SORT OF SENTENCE. NATHANIEL F. RUBIN: I THINK BROADLY SPEAKING WAOR 605 00:56:33.050 --> 00:56:37.818 WE ARE DEBATE BE WHEN A BENCH WARRANTS WOULD BE MOST APPROPRIATE AND MANY CASES THAT SHOULD 606 00:56:37.818 --> 00:56:42.727 BE A QUESTION THAT COLUMNS DOWN TO THE TRIAL COURTS DISCRETION AN IT'S GOING TO MATTER 607 00:56:42.727 --> 00:56:47.273 WHEN A CASE ESSENTIALLY IS UNABLE TO PROCEED FURTHER THROUGH VIRTUAL MEANS. THAT WOULD 608 00:56:47.273 --> 00:56:51.295 GENERALLY BE THE TIME AT WHICH POINT IT'S APPROPRIATE TO IMPOSE A BENCH WARRANT BECAUSE 609 00:56:51.295 --> 00:56:57.342 THE BENCH WARRANT THEN ALLOWS FOR FUTURE EVENTS IN THE CASE NOT TO BE SCHEDULED IT ALLOWS 610 00:56:57.342 --> 00:57:02.426 FOR THE CASE TO RESUME SHOULD THE DEFENDANT REAPPEAR IN THE UNITED STATES AT WHATEVER 611 00:57:02.426 --> 00:57:08.997 STAGE THE PROCEEDINGS IS MOST APPROPRIATE WHETHER THAT'S AT AN EVIDENTIARY HEARING WHETHER 612 00:57:08.997 --> 00:57:14.906 IT'S AT TRIAL OR LATER. CHIEF JUSTICE RABNER: START THE PROCESS IF YOU WOULD. 613 00:57:14.906 --> 00:57:19.931 IF THE ATTORNEY GENERAL OFFICE IF A COUNTY PROSECUTOR IS MADE AWARE THAT THE INDIVIDUAL 614 00:57:19.931 --> 00:57:26.223 HAS BEEN DETAINED BY ICE PENDING REMOVAL HAS THERE BEEN GUIDANCE OR WILL THERE BE GUIDANCE 615 00:57:26.223 --> 00:57:35.203 TO COUNTY PROSECUTOR'S ABOUT INTERACTIONS EFFORTS TO CONTACT ICE TO STOP THAT PROCESS. 616 00:57:35.203 --> 00:57:38.913 NATHANIEL F. RUBIN: CHIEF JUSTICE RABNER: IN FAVOR OF PROSECUTION. 617 00:57:38.913 --> 00:57:42.388 NATHANIEL F. RUBIN: I'M NOT AWARE OF THE UNIFORM GUIDANCE THAT EXISTS EITHER 618 00:57:42.388 --> 00:57:50.059 FROM THIS OFFICE OR THAT EXISTS ON A COUNTSY PROSECUTOR LEVEL BASIS. SO I COULDN'T SPEAK 619 00:57:50.059 --> 00:57:54.864 TO WHETHER WE HAVE ANY KIND OF A UNIFORM POLICY THAT WAY. MY UNDERSTANDING IS THIS 620 00:57:54.864 --> 00:58:02.553 OFTENTIMES EXISTS IN A SPACE WHERE INDIVIDUAL PROSECUTOR'S HAVE TO EXERCISE A LOT OF 621 00:58:02.553 --> 00:58:08.108 DISCRETION AND AT THE SAME TIME IT'S OFTENTIMES THE CASE THAT ON A PRACTICAL LEVEL THE 622 00:58:08.108 --> 00:58:13.915 STATE ISN'T MADE AWARE OF WHETHER SOMEBODY IS IN FACT IN ICE CUSTODY. CHIEF JUSTICE 623 00:58:13.915 --> 00:58:18.096 RABNER: BUT IN AI CASE WHERE YOU ARE MADE WEAR OF THAT DEFENSE COUNSEL ALERTS YOU OR IT IS 624 00:58:18.096 --> 00:58:25.465 BROUGHT TO THE PROSECUTOR'S ATTENTION, ARE EFFORTS BEING MADE TO CONTACT ICE PURSUANT 625 00:58:25.465 --> 00:58:30.194 TO THE TOOL KIT. NATHANIEL F. RUBIN: MY UNDERSTANDING IS THAT PROSECUTOR'S 626 00:58:30.194 --> 00:58:36.736 CAN AND DO MAKE THESE REQUESTS BUT AGAIN I COULDN'T SPEAK TO HOW FREQUENTLY THEY ARE 627 00:58:36.736 --> 00:58:39.820 MADE. JUSTICE PIERRE-LOUIS: THERE'S NO GUIDANCE FROM THE ATTORNEY GENERAL OFFICE 628 00:58:39.820 --> 00:58:45.469 TO COUNTSY PROSECUTOR'S OFFICES TO AT LEAST BE FARM WITH THE TOOL KIT TO USE THE STEPS 629 00:58:45.469 --> 00:58:52.221 IN THE TOOL KIT. YOU HAVE NO SENSE OF WHETHER THAT HAS HAPPENED OR IS HAPPENING. 630 00:58:52.221 --> 00:58:56.760 NATHANIEL F. RUBIN: I COULDN'T SPEAK TO WHETHER -- I I COULDN'T SPEAK WITH CERTAINTY HERE 631 00:58:56.760 --> 00:59:00.766 AND NOW WHETHER WE HAVE THAT GUIDANCE OUT. I WOULD CERTAINLY IF THE COURT WOULD BE 632 00:59:00.766 --> 00:59:04.835 INTERESTED BE HAPPY TO PROVIDE IT SHOULD THE REQUEST FOR INFORMATION. JUSTICE 633 00:59:04.835 --> 00:59:09.295 PIERRE-LOUIS: DO YOU HAVE ANY INFORMATION, YOU KNOW, FROM THE ATTORNEY GENERAL PERSPECTIVE 634 00:59:09.295 --> 00:59:16.400 AS TO WHAT HAS BEEN HAPPENING IN THE COUNTSY PROSECUTOR'S OFFICES RECENTLY. HAVE YOU 635 00:59:16.400 --> 00:59:22.332 COUNTY PROSECUTOR'S OFFICE BEEN COMMUNICATING WITH ICE AND MAKING REQUESTS FOR 636 00:59:22.332 --> 00:59:28.171 ADMINISTRATIVE STAYS OF REMOVAL OR DEFERRED ACTION OR REQUESTING WRITS TO PRODUCE DEFENDANTS 637 00:59:28.171 --> 00:59:32.881 FOR COURT PROCEEDINGS IF THEY ARE STILL IN CUSTODY. DO YOU HAVE ANY SENSE OF WHAT'S 638 00:59:32.881 --> 00:59:37.013 GOING ON RIGHT NOW. NATHANIEL F. RUBIN: I COULDN'T SPEAK AT A BROAD LEVEL TO 639 00:59:37.013 --> 00:59:45.583 WHAT INDIVIDUAL COUNTY PROSECUTOR'S OFFICE ARE DOING IN THAT REGARD, NO LIN THE ATTORNEY 640 00:59:45.583 --> 00:59:49.888 GENERAL OFFICE HAD ANY CASES ARE YOU IN COMMUNICATION WITH ICE. I THINK WE'RE TRYING 641 00:59:49.888 --> 00:59:53.861 TO GET AN UNDERSTANDING OF WHAT'S HAPPENING WHETHER THE TOOL KIT IS USEFUL WHETHER ICE 642 00:59:53.861 --> 00:59:59.057 IS KRAOPTING. BECAUSE THE TOOL KIT ITSELF STATES THAT THERE ARE INSTANCES WHERE ICE MIGHT 643 00:59:59.057 --> 01:00:07.665 NOT -- YOU KNOW, MIGHT NOT APPROVE OR MIGHT NOT HONOR A WRIT EVEN, YOU KNOW, SO I THINK 644 01:00:07.665 --> 01:00:13.831 WE WOULD LIKE SOME INFORMATION ON AS TO WHAT'S GOING ON. IT WOULD SEEM THE AG'S OFFICE 645 01:00:13.831 --> 01:00:17.040 WOULD HAVE SOME OF THAT INFORMATION. NATHANIEL F. RUBIN: OUR UNDERSTANDING 646 01:00:17.040 --> 01:00:22.831 IS THAT ICE DOES NOT COOPERATE FREQUENTLY. AND WHEN IT COMES TO THE ICE GUIDANCE. WE 647 01:00:22.831 --> 01:00:29.606 UNDERSTAND IT TO HAVE BEEN UPDATED IN 2021. JUSTICE PIERRE-LOUIS: HAS IT CHANGED 648 01:00:29.606 --> 01:00:34.538 SIGNIFICANTLY. NATHANIEL F. RUBIN: NO, YOUR HONOR. CHIEF JUSTICE RABNER: 649 01:00:34.538 --> 01:00:38.739 YOU MAY IT RIGHT HA IT'S DIFFICULT BUT IS IT DIFFICULT TO REACH OUT TO THE APPROPRIATE 650 01:00:38.739 --> 01:00:47.114 INDIVIDUAL AND SAY THE STATE THE COUNTY REQUESTS XYZ WITH RESPECT TO THIS DEFENDANT WHILE 651 01:00:47.114 --> 01:00:51.011 REMOVAL PROCEEDINGS ARE PENDING. NATHANIEL F. RUBIN: THAT'S CERTAINLY EASIER 652 01:00:51.011 --> 01:00:54.690 THAN EXTRADITION IS, YOUR HONOR, AND WE DON'T DISPUTE THAT. CHIEF JUSTICE RABNER: 653 01:00:54.690 --> 01:00:57.586 BUT IT'S NOT BEING DONE AT THIS POINT. NATHANIEL F. RUBIN: I COULDN'T SPEAK 654 01:00:57.586 --> 01:01:02.345 WITH SERPBLT WITH OUT FREQUENTLY IT'S BEING DONE. CHIEF JUSTICE RABNER: I UNDERSTAND 655 01:01:02.345 --> 01:01:07.436 YOUR POSITION HERE. I IMAGINE IF THE ANSWER WAS WE'VE GIVEN GUIDANCE AND WE ARE DOING 656 01:01:07.436 --> 01:01:11.736 THIS, YOU WOULD BE IN A POSITION TO TELL US. NATHANIEL F. RUBIN: I CAN SAY 657 01:01:11.736 --> 01:01:14.647 I'M NOT A-AWARE OF ANY SUCH GUIDANCE STANDING HERE NOW. CHIEF JUSTICE RABNER: 658 01:01:14.647 --> 01:01:21.207 LET'S GO BACK A STEP FURTHER IN THE PROPERS HE HE IS. IF YOU'RE MADE AWARE AND DEFENDANT 659 01:01:21.207 --> 01:01:27.086 COUNSEL SAYS WE WANT TO HAVE AND ARRAIGNMENT CONDUCTED REMOTELY TO HAVE AT LEAST A 660 01:01:27.086 --> 01:01:31.806 PRELIMINARY PROCEEDING IN THIS CASE, WHO SHOULD BE RESPONSIBLE FOR REACHING OUT TO ICE 661 01:01:31.806 --> 01:01:35.988 TO ATTEMPT TO COORDINATE THAT THE DEFENDANT OR THE STATE. NATHANIEL F. RUBIN: 662 01:01:35.988 --> 01:01:45.770 SO WE THINK BASED ON THE STRUCTURE OF RULE ONE 21B IT WOULD BE THE APPLICANT WHO SEEKS 663 01:01:45.770 --> 01:01:52.080 TO APPEAR REMOTE HREU TO MAKE A REQUEST OR SORRY TO SHOW A NEED FOR GOOD CAUSE TO APPEAR 664 01:01:52.080 --> 01:01:57.130 REMOTELY. WE RECOGNIZE THAT IN SOME CASES IT CAN BE AN EASIER BURDEN ON THE STATE TO 665 01:01:57.130 --> 01:02:03.859 MAKE A REQUEST TO ICE BUT WE ALSO WOULD RECOGNIZE THAT MANY CASES. HIGHEST AS APPEARANCE 666 01:02:03.859 --> 01:02:11.175 TPOR ALLOWS REMOTE ARRAIGNMENTS AND ARE EQUIPPEDED IT ALLOW FOR REMOTE APPEARANCES 667 01:02:11.175 --> 01:02:16.532 WHEN A DEFENDANT IS IN ICE CUSTODY. IT'S MUCH MORE DIFFERENT WHEN A DEFENDANT HAS BEEN 668 01:02:16.532 --> 01:02:20.494 REMOVED FROM UNITED STATES AND THERE'S FAR MORE VARIATION IN THE CIRCUMSTANCE THAT THEY 669 01:02:20.494 --> 01:02:24.563 MIGHT BE FACING HERE IN MEXICO OR WHEREVER ELSE. CHIEF JUSTICE RABNER: LET'S 670 01:02:24.563 --> 01:02:30.191 FOCUS WHEN THEY'RE IN ICE CUSTODY THE HAVE NOT BEEN REMOVED IS IT NATURAL FOR THE STATE 671 01:02:30.191 --> 01:02:35.917 TO STEP IN AND AT THE SAME TIME TO CONTACT ICE GIVEN THAT IT IS THE GOVERNMENT THAT IS 672 01:02:35.917 --> 01:02:40.160 HOLDING THIS INDIVIDUAL AND PREVENTING THEM FROM APPEARING. NATHANIEL F. RUBIN: 673 01:02:40.160 --> 01:02:48.823 THE STATE MAY HAVE MORE SUCCESS THAN A DEFENDANT MIGHT IN CONTACTING ICE. IN MAKING THAT 674 01:02:48.823 --> 01:02:56.646 SORT OF REQUEST. AND TO THAT END IT MIGHT CERTAINLY BE EASIER FOR THE STATE TO DO SO. 675 01:02:56.646 --> 01:03:05.640 SO WE WOULD BE WILLING TO SAY THAT. AGAIN TO THE EXTENT IT'S A REQUEST TO APPEAR REMOTELY 676 01:03:05.640 --> 01:03:12.197 THAT'S PUT FORWARD BY A PARTY THOUGH WE WOULD CAUTION THAT THE STRUCTURE RULE 121B SEEMS 677 01:03:12.197 --> 01:03:15.650 TO PLACE THE BURDEN ON THE APPLICANT. JUSTICE NORIEGA: BUT THE APPLICANT IS 678 01:03:15.650 --> 01:03:19.276 MAKING THE REQUEST TO THE COURT. IN TERMS OF THE PHYSICAL APPEARANCE AND THE ABILITY 679 01:03:19.276 --> 01:03:25.027 TO APPEAR AND WHETHER OR NOT THE FACILITY THAT THEY'RE IN PERMITS IT SEEMS TO BE BEYOND 680 01:03:25.027 --> 01:03:29.146 THE CONTROL OF THE APPLICANT IN MOST CASES OR THE DEFENSE ATTORNEY THAT'S REPRESENTING 681 01:03:29.146 --> 01:03:33.089 THEM SO I THINK THE RULE SPEAKS TO IT'S ISSUE OF THE DEFENDANT SAYING TO THE CRIMINAL 682 01:03:33.089 --> 01:03:38.383 TRIAL COURT JUDGE I WOULD LIKE TO APPEAR REMOTELY AND THAT DECISION IS MADE. I THINK 683 01:03:38.383 --> 01:03:44.272 THE CHIEF IS ASKING YOU MORE ABOUT THE INTERACTION OF DOES MOSHANNON VALLEY 684 01:03:44.272 --> 01:03:52.460 DETENTION FACILITY PERMIT SOMEBODY TO APPEAR VIRTUALLY IN NEW JERSEY OR NOT THAT'S A MORE 685 01:03:52.460 --> 01:03:57.280 COMPLICATED ISSUE RIGHT NOW. NATHANIEL F. RUBIN: RIGHT AND RECOGNIZING THAT 686 01:03:57.280 --> 01:04:02.882 I DON'T WANT TO STEP TOO MUCH ON MY COLLEAGUE'S TOES WHERE THIS FACT PATTERN IS MORE AT 687 01:04:02.882 --> 01:04:11.207 ISSUE IN THE GARCIA MORE THAN THE MATTER. IT'S MORE THE CASE THAT IT'S BEYOND A REASONABLE 688 01:04:11.207 --> 01:04:15.825 DOUBT FOR THE STATE IS TO MAKE THAT REQUEST AND THE STATE CAN DO SO IF THAT'S THE BEST 689 01:04:15.825 --> 01:04:24.964 WAY TO MOVE FORWARD. I DON'T THINK WE'RE, YOU KNOW, OPPOSED TO THAT VIEW AND SO I DON'T 690 01:04:24.964 --> 01:04:32.618 THINK THAT'S A BRIDGE TOO FAR FOR THE STATE STPHEUFPLT CAN I ASK WHAT YOUR OFFICES 691 01:04:32.618 --> 01:04:38.798 POSITION IS ON THIS. IF A PWAFRPT IS ISSUED INDIVIDUAL IS DEPORTED THE CASE IS NOW HELD 692 01:04:38.798 --> 01:04:45.400 IN ABEYANCE PENDING THE NEXT MOVEMENT IN THE INDICATION ONE WAY OR THE OTHER. DEFENSE 693 01:04:45.400 --> 01:04:50.839 ATTORNEY REACHES OUT AND FILES A MOTION TO LIFT THE WARRANTS SUGGESTING THAT THEY'VE BEEN 694 01:04:50.839 --> 01:04:59.359 IN CONTACT WITH ICE OR DEPARTMENT OF HOMELAND SECURITY AND THEY'VE ARRANGED FOR THEIR 695 01:04:59.359 --> 01:05:04.192 CLIENTS TO COME TO THE AIRPORT AND BE PAROLED INTO THE UNITED STATES THE PROBLEM IS THEY 696 01:05:04.192 --> 01:05:10.436 CAN'T DO THAT BECAUSE THERE'S A BENCH WARRANT ON THEM. WOULD YOUR OFFICE APPROVE LIFTING 697 01:05:10.436 --> 01:05:15.682 THAT WARRANTS OR CONSENTING TO TA WARRANT BEING LIFT THE SO THEY CAN ACCOMMODATE THE ENTRY 698 01:05:15.682 --> 01:05:21.189 IF ENOUGH SAFE GUARDS ARE PUT INTO PLACE SO THEY CAN APPEAR DIRECTLY TO COURT BE SUBJECT 699 01:05:21.189 --> 01:05:24.796 TO CERTAIN REVISIONS. NATHANIEL F. RUBIN: IN CIRCUMSTANCES LIKE THOSE, YES 700 01:05:24.796 --> 01:05:32.373 THE SAME WAY THAT WE IN ORDINARY PROCEEDINGS IF A DEFENDANT IS UNACCOUNTED FOR AND HAS 701 01:05:32.373 --> 01:05:38.934 A BENCH WARRANT ISSUED IT WOULD BE OKAY WITH THE BENCH WARRANT BEING REMOVED IF THIS ARE 702 01:05:38.934 --> 01:05:43.239 ASSURANCES MADE. IN THAT CASE WE CERTAINTY WOULDN'T WANT TO SAY BENCH WARRANTS MUST BE 703 01:05:43.239 --> 01:05:49.690 USED IF IT WOULD BE SOMETHING THAT IMPEDE THE PROCESS PROGNOSIS HE IS OF A CRIMINAL 704 01:05:49.690 --> 01:05:54.253 INVESTIGATION. JUSTICE PATTERSON: YOU SAID AT THE BEGINNING OF YOUR ARGUMENT 705 01:05:54.253 --> 01:06:00.040 YOU HAD THREE MAIN POINTS DID YOU COVER ALL THREE. NATHANIEL F. RUBIN: THE 706 01:06:00.040 --> 01:06:05.374 SECOND POINT THAT I WANTED TO MAKE WAS SIMPLY THAT WHERE DEFENDANT IS DEPORTED THAT DOES 707 01:06:05.374 --> 01:06:11.182 NOT AND SHOULD NOT AND ENDS THE CHARGES AGAINST THEM AND TO EMPHASIZE THAT THE STATE 708 01:06:11.182 --> 01:06:15.220 MAINTENANCE RIGHT TO PROSECUTION I THINK I ANSWERED THAT IN RESPONSE TO THE COURT'S 709 01:06:15.220 --> 01:06:19.191 QUESTIONS AND THE FINALLY POINT WAS BENCH WARRANTS ARE AN IMPORTANT TOOL TO ASWROEUD THAT 710 01:06:19.191 --> 01:06:25.616 KIND OF POSTURE OF I AM PAOUPBT ARISING AND WE WOULD JUST EMPHASIZE AGAIN THAT TO BETTER 711 01:06:25.616 --> 01:06:29.726 ACCOMMODATE HIGHLY UNUSUAL CASES LIKE THIS ONE WHERE THE DEFENDANT IS ABLE TO SHOW THAT 712 01:06:29.726 --> 01:06:37.039 THEY'RE UNAVAILABILITY IS TRULY VOLUNTARILY WE WOULD ADJUST THE BENCH WARRANTS FORM SIMPLY 713 01:06:37.039 --> 01:06:42.446 AS A DETAIN ARE AND NOT FOR A WILLFUL FAILURE TO APPEAR AND WHERE THE DEFENDANT DID NOT 714 01:06:42.446 --> 01:06:46.379 VOLUNTARILY ABSENT THEMSELVES FROM THE COURT JURISDICTION. JUSTICE PATTERSON: 715 01:06:46.379 --> 01:06:51.863 SO YOU'RE ASKING TOR SOMETHING TO BE SENT ON THE FORM THAT ACKNOWLEDGES THAT CIRCUMSTANCES. 716 01:06:51.863 --> 01:06:55.692 NATHANIEL F. RUBIN: THAT'S CORRECT. IT WOULD BE BETTER IF WERE REFLECT ODD 717 01:06:55.692 --> 01:07:00.461 BENCH WARRANTS SIMPLY AS TO THE NOTE BEING MADE ON THE CASE MANAGEMENT SYSTEM. THE 718 01:07:00.461 --> 01:07:05.623 SPEAKER: MAY I ASK WHAT DIFFERENCE THAT MAKES. IN WHAT IMPACT WOULD THAT CHANGE HAVE 719 01:07:05.623 --> 01:07:10.871 IN TERMS OF ARGUMENTS THAT ARE MADE OR IN TERMS OF WHAT WOULD BE THE POINT. 720 01:07:10.871 --> 01:07:13.984 NATHANIEL F. RUBIN: WE WOULD RECOMMEND THAT GO ALONG WITH AN ADJUSTMENT TO THE PUBLIC 721 01:07:13.984 --> 01:07:19.504 SAFETY ASSESSMENT FOR DETERMINING PRIMARILY DETENTION TO MAKE CLEAR THAT WHERE A 722 01:07:19.504 --> 01:07:24.689 DEFENDANT HAS A BENCH WARRANT ISSUED AGAINST THEM IN A DETAIN ARE CONTEXT IT'S TREATED 723 01:07:24.689 --> 01:07:30.393 AS IF THEY WERE SIMPLY INCARCERATED ELSE WHEREAS OPPOSED TO WILLFULLY FAILING TO APPEAR 724 01:07:30.393 --> 01:07:36.553 SO IT'S NOT HELD AGAINST THE DEFENDANT FOR FURTHER PRIMARILY DETENTION PURPOSES. 725 01:07:36.553 --> 01:07:40.341 CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE ANYTHING YOU'D LIKE TO ADD COUNSEL. 726 01:07:40.341 --> 01:08:35.376 NATHANIEL F. RUBIN: NO THANK YOU ROBIN KAY LORD: Trying the figure out which 727 01:08:35.376 --> 01:08:51.281 way the start -- so manatis a break I'll try here. This case is not about -- oh. 728 01:08:51.281 --> 01:08:59.184 Here it is. Sorry. This case is not about ICE. This case is not 729 01:08:59.184 --> 01:09:05.214 about deportation. Those are civil merits. And they're handled in civil cases 730 01:09:05.214 --> 01:09:12.793 right? This case is really about the constitutional right to be present at 731 01:09:12.793 --> 01:09:17.003 trial. This. JUSTICE PATTERSON: Could you speak up a little bit please. 732 01:09:17.003 --> 01:09:22.482 ATTORNEY: Sure this case is about whether the state may continue a 733 01:09:22.482 --> 01:09:27.804 criminal prosecution when the government action has made press at trial an 734 01:09:27.804 --> 01:09:32.491 impossibility. And it is through this lens in which this court should fashion 735 01:09:32.491 --> 01:09:39.435 a remedy. There is no authority that allows the state to force a defendant 736 01:09:39.435 --> 01:09:47.331 to stand trial from a foreign country where their absence is government caused. 737 01:09:47.331 --> 01:09:51.848 Here, what's the appeared found chief justice absence (was not voluntarily, 738 01:09:51.848 --> 01:10:00.403 the constitution really left two options. One, bring him back. Or two, dismiss. 739 01:10:00.403 --> 01:10:07.007 The constitution does not care which branch of government prevented him 740 01:10:07.007 --> 01:10:14.088 from appearing at trial. The defendants press was and remains an impact due 741 01:10:14.088 --> 01:10:19.857 to assist actions of the government. If there's one principal I would 742 01:10:19.857 --> 01:10:25.974 respectfully suggest this court to announce in this case, and that is, a criminal 743 01:10:25.974 --> 01:10:30.352 trial may not proceed in charges may not remain pending when the government 744 01:10:30.352 --> 01:10:35.737 made the defendants presence impossible and the only alternative as a forced 745 01:10:35.737 --> 01:10:41.560 waiver of a fundamental trial rights the right to be present and the right to 746 01:10:41.560 --> 01:10:52.233 confront. The state here seeks guidance. That's why they filed. Guidance 747 01:10:52.233 --> 01:11:00.027 cannot cure constitutionally impossible trial. Reasonable accommodations only 748 01:11:00.027 --> 01:11:05.848 work when they preserve constitutional rights. While the reasonable 749 01:11:05.848 --> 01:11:11.113 accommodations by the appellate division he or she might have preserved the charges, 750 01:11:11.113 --> 01:11:17.286 it still compels waiver of a constitutional right to be present at trial. The 751 01:11:17.286 --> 01:11:24.438 compromise here does not cure the constitutional violation. We are all 752 01:11:24.438 --> 01:11:31.128 fundamentally aware for the last a hundred 29 years, undocumented non citizens 753 01:11:31.128 --> 01:11:39.245 in enjoy the same constitutional rights as citizens. Our constitution has never 754 01:11:39.245 --> 01:11:46.069 been status based. Constitutional rights are not conditioned on ones immigration 755 01:11:46.069 --> 01:11:53.651 status. The prosecutor here is asking for guidance. Well, here's the guidance 756 01:11:53.651 --> 01:11:59.802 I would respectfully suggest this court give the prosecution. One, make 757 01:11:59.802 --> 01:12:06.480 reasonable efforts to keep us in the United States. Two, if we are forth dollars 758 01:12:06.480 --> 01:12:13.667 make reasonable efforts to X-ray diet it cannot pick and I choose who they want 759 01:12:13.667 --> 01:12:17.825 to award the constitutional right to be present at trial. That's essentially 760 01:12:17.825 --> 01:12:22.458 what they do when he choose the extradite one person over another. We cannot 761 01:12:22.458 --> 01:12:29.690 have the state have such power over once constitutional rights. And if they 762 01:12:29.690 --> 01:12:33.763 do neither, if they don't make any reasonable efforts the keep minimum the country, 763 01:12:33.763 --> 01:12:39.789 while the trials pending, and if they make in efforts to deport the only other 764 01:12:39.789 --> 01:12:45.441 option here is to dismiss. JUSTICE PATTERSON: You men OPRA diet instead 765 01:12:45.441 --> 01:12:53.768 of. ATTORNEY: Yes apologize the only other option is dismiss. The only 766 01:12:53.768 --> 01:12:59.919 aspect I would respectfully agree with the states position here, is the regarding 767 01:12:59.919 --> 01:13:05.195 the rule change that he that they propose. And why it is to answer the chiefs 768 01:13:05.195 --> 01:13:09.596 question why it's important in relevant before this court, because yes, I did file 769 01:13:09.596 --> 01:13:17.819 a motion to revoke trial revise and had that been granted, we might not even 770 01:13:17.819 --> 01:13:24.633 be here today. The respectful disagreement I have is that they're miss citing 771 01:13:24.633 --> 01:13:32.831 the procedural history. That was not denied because of Lopez Carrera. In fact 772 01:13:32.831 --> 01:13:36.670 my communications with the state and I attached them as exhibits, there's not 773 01:13:36.670 --> 01:13:41.679 one email or communication from the states saying we can't agree to detain 774 01:13:41.679 --> 01:13:46.832 we can't agree to revoke. Because if the Supreme Court's decision in Lopez 775 01:13:46.832 --> 01:13:52.207 Carrera. They didn't say that. I went before no judge on my emergent motion 776 01:13:52.207 --> 01:13:57.402 to revoke. Why? Because he was literally on the plain when I found out about 777 01:13:57.402 --> 01:14:04.659 it and I took to have. I was in discussions for about a week to ten days before 778 01:14:04.659 --> 01:14:08.687 his deportation I think November 3rd is when's the motion to reconsider was denied. 779 01:14:08.687 --> 01:14:15.430 He was deported I think around November 15th. Not one time did the state 780 01:14:15.430 --> 01:14:21.486 say, well, Supreme Court held our hands tide or hands on this. You know, in 781 01:14:21.486 --> 01:14:29.408 state versus Lopez Carrera, this court was very clear prosecutors can and do seek 782 01:14:29.408 --> 01:14:34.281 to defer action and stay removal. And appropriate cases so that the criminal 783 01:14:34.281 --> 01:14:39.341 process can be completed. Federal law provides for coordination between 784 01:14:39.341 --> 01:14:42.960 federal prosecutors and immigration officials. After non citizen is 785 01:14:42.960 --> 01:14:48.807 arrested. We encourage ICE to coordinate with state prosecutors and allow the criminal 786 01:14:48.807 --> 01:14:52.668 justice tongue the complaint it work while charges are pending against non 787 01:14:52.668 --> 01:14:57.387 citizens in state court. This is not language by this court. Telling 788 01:14:57.387 --> 01:15:03.548 them to do nothing. When a defendant is being literally begging to stay in the 789 01:15:03.548 --> 01:15:09.806 United States. This court did not direct the government or the state or the 790 01:15:09.806 --> 01:15:14.532 prosecutors to do nothing. Like they did in this case. They did nothing in 791 01:15:14.532 --> 01:15:19.905 this case because they cheese to do nothing. They did nothing before, and they 792 01:15:19.905 --> 01:15:25.695 did nothing after. They cannot have such power to determine which non citizen 793 01:15:25.695 --> 01:15:36.510 gets the constitutional right to be present at trial, and which doesn't. 794 01:15:36.510 --> 01:15:42.209 The procedural history that I like to clear up -- excuse me. With respect to this 795 01:15:42.209 --> 01:15:48.173 matter, includes the very beginning to answer some of your questions as to 796 01:15:48.173 --> 01:15:55.734 how we got to where we are. You know, it wasn't until I actually read the 797 01:15:55.734 --> 01:15:59.497 appellate division decision that I totally forget that there was and I'm going 798 01:15:59.497 --> 01:16:06.560 to call also a technical bench warrant. That was issued I think November 14th 2022. 799 01:16:06.560 --> 01:16:14.146 By way of procedural history, he was indicted on August 272021, after he was 800 01:16:14.146 --> 01:16:19.816 indicted on August 272021 it as schedule considered a arrangement. I kept 801 01:16:19.816 --> 01:16:23.264 yet go no I indication are the court schedule for a arrangement but where a 802 01:16:23.264 --> 01:16:26.849 jerk it because he's been deposited. I final wrote back and situated, he had like 803 01:16:26.849 --> 01:16:32.685 the app virtually. They said okay. Then we appeared virtually on December 804 01:16:32.685 --> 01:16:41.668 14th, 2021. Via Zoom we were arranged. We then did the P-D-I application 805 01:16:41.668 --> 01:16:47.482 process. The procedure it took a couple of applications, first it was application 806 01:16:47.482 --> 01:16:51.207 went in, then it was injected by I think criminal case management then there was 807 01:16:51.207 --> 01:16:54.959 a brief, all of the procedural history going back and forth regarding that. 808 01:16:54.959 --> 01:17:02.305 While we were scheduling that, there was an a appearance that I made on his 809 01:17:02.305 --> 01:17:06.258 behalf it was for scheduling purposes. It was a different judge, and the judge 810 01:17:06.258 --> 01:17:13.184 issued a bench warrant. On November 14th, 2022. Like I said it wasn't 811 01:17:13.184 --> 01:17:15.468 until I reasonable doubt the appellate division subdivision I forgot all about 812 01:17:15.468 --> 01:17:20.995 that insist in the window are' but I think is bore that we distinguish gold less 813 01:17:20.995 --> 01:17:25.386 you that bench warrant that was issued from the bench warrant that was issued later 814 01:17:25.386 --> 01:17:28.131 on after my application which I will address in a secretary. (Second,). 815 01:17:28.131 --> 01:17:31.734 JUSTICE: The reason I say at I was tech bench warrant is because what 816 01:17:31.734 --> 01:17:34.489 happens when a bench warrant is fired the case is owe he we don't go any further 817 01:17:34.489 --> 01:17:38.484 there's nothing an next event owned of story there was a next echt the next 818 01:17:38.484 --> 01:17:45.259 event was appealing the PTI. We argued it litigated it we lost. My office did 819 01:17:45.259 --> 01:17:50.722 not ask my client to appear at the November 14th 2022 event, because I didn't 820 01:17:50.722 --> 01:17:56.321 think he had to. He soon thereof every time by appeared thereafter got 821 01:17:56.321 --> 01:18:00.260 a virtual appearance and he appeared. And appeared on regular basis and to 822 01:18:00.260 --> 01:18:04.554 this day, he's been calling in four years ago later, to pretrial services from Mexico. 823 01:18:04.554 --> 01:18:08.855 So. JUSTICE WAINER APTER: I want I understand your arcing that 824 01:18:08.855 --> 01:18:15.136 at the point your client does not concede to a virtual trial correct. ATTORNEY: 825 01:18:15.136 --> 01:18:16.325 Yes. JUSTICE WAINER APTER: Okay. ATTORNEY: That was not your argument 826 01:18:16.325 --> 01:18:22.810 before the possibility tuition (. A So it was respectfully. What happened 827 01:18:22.810 --> 01:18:33.457 was, there's a transcript from September five 2023. That's when we had lost the PTI 828 01:18:33.457 --> 01:18:40.874 appeal, and we were before judge indication in at the time. And owe page five miss Lord 829 01:18:40.874 --> 01:18:46.101 who are hour Hoyer and I indicate, line 18,) I want to be opportunity to put together 830 01:18:46.101 --> 01:18:51.051 a motion to dismiss because he's not his not apparently physically in the courtroom is 831 01:18:51.051 --> 01:18:56.652 not a voluntary thing. He was deported as Your Honor identifies. Next 832 01:18:56.652 --> 01:19:01.219 page so there's two competing issues there's issue number one, he's a right to be present 833 01:19:01.219 --> 01:19:05.228 at trial. And he can waive that right. But it's his right and he doesn't wish to wave 834 01:19:05.228 --> 01:19:11.234 this right. He wishes took present. He's also been involuntary deported. So the whole 835 01:19:11.234 --> 01:19:15.730 reason here today is because of my comments to the court on that day. The courts response 836 01:19:15.730 --> 01:19:22.611 was, well, typically what we routinely to about the is issue parents and the state chimes 837 01:19:22.611 --> 01:19:28.248 in, yeah, we want a bench warrant. That's why the bench warrant was issued. 838 01:19:28.248 --> 01:19:33.633 On September -- I'm sorry September five two 23 because I had initiated we don't want 839 01:19:33.633 --> 01:19:36.947 to appear virtually. We've right to be present be captain confront a accuser this is 840 01:19:36.947 --> 01:19:41.487 a identification case we'd like to be in the courtroom. JUSTICE WAINER APTER: 841 01:19:41.487 --> 01:19:46.514 I want you're arguing that if a non citizen is deposited, and does not consent 842 01:19:46.514 --> 01:19:51.494 tow appear virtually at trial, then then the case has to be dismissed. ATTORNEY: 843 01:19:51.494 --> 01:19:57.691 That would be my position. Unless the government agrees to bright. CHIEF 844 01:19:57.691 --> 01:20:02.137 JUSTICE RABNER: Why not a bench warrant under those associations tell us your 845 01:20:02.137 --> 01:20:05.626 box. ROBIN KAY LORD: So it's not a voluntary trail with your the app. 846 01:20:05.626 --> 01:20:11.244 As we know. And it's not necessary to extradite the taking the passion that 847 01:20:11.244 --> 01:20:14.373 you have to have a bench warrant to extra Dade we can't do anything unless 848 01:20:14.373 --> 01:20:18.256 there's a bench warrant. JUSTICE WAINER APTER: Sorry F doesn't -- the United 849 01:20:18.256 --> 01:20:23.654 States treaty with Mexico require a bench warrant. ROBIN KAY LORD: So. 850 01:20:23.654 --> 01:20:26.518 JUSTICE FASCIALE: Require I wasn't. ROBIN KAY LORD: Art level of 851 01:20:26.518 --> 01:20:32.122 the treaty TIAs a provision for provisional arts. And it's a provisional arrest 852 01:20:32.122 --> 01:20:37.929 to allow the treaty owe tow allow extradition to occur and it's 853 01:20:37.929 --> 01:20:43.360 provisional for a period of 60 days. If the extradition praise is not I occurring 854 01:20:43.360 --> 01:20:49.151 within 60 days. Then it's owe there's the long are' ashes warrant I think 855 01:20:49.151 --> 01:20:52.594 that's. JUSTICE FASCIALE: Which section. ROBIN KAY LORD: Article two. 856 01:20:52.594 --> 01:20:55.439 JUSTICE FASCIALE: Six. JUSTICE PATTERSON: Is it your context all 857 01:20:55.439 --> 01:20:58.789 that can happen under the treaty without a bench warrant. ROBIN KAY LORD: 858 01:20:58.789 --> 01:21:02.357 A provisional arrest. JUSTICE PATTERSON: Is that there be can be an extradition 859 01:21:02.357 --> 01:21:06.445 without a bench warrant because I believe what we heard from your adversary, 860 01:21:06.445 --> 01:21:13.462 is that the bench warrant is -- understand the U.S. mention treaty, is a necessary 861 01:21:13.462 --> 01:21:21.371 prerequisite to the extradition proceedings going beyond that first step. ROBIN 862 01:21:21.371 --> 01:21:25.369 KAY LORD: I disagree with that. There's has to be a technical order from a 863 01:21:25.369 --> 01:21:28.860 judge ordering that he be arrested. Is that a bench warrant or is that a provisional 864 01:21:28.860 --> 01:21:32.603 arrest? Because. JUSTICE FASCIALE: So under article ten tell me 865 01:21:32.603 --> 01:21:40.303 if we are reading two activity things under article tell (and requirement). 866 01:21:40.303 --> 01:21:42.694 (Reading ) ,) in addition when the request door 867 01:21:42.694 --> 01:21:45.228 extradition receipts the' person who has not yet been 868 01:21:45.228 --> 01:21:48.627 convicted it shall be accompanied by a a surgical copy 869 01:21:48.627 --> 01:21:52.163 of the warrant of arrest issued by a judge or other judicial 870 01:21:52.163 --> 01:21:56.669 officer. Of the requesting party. ROBIN KAY 871 01:21:56.669 --> 01:22:00.223 LORD: Article 11 judge on the next page. JUSTICE FASCIALE: I see thuses 872 01:22:00.223 --> 01:22:04.660 the provisional arrest. ROBIN KAY LORD: Okay. JUSTICE FASCIALE: 873 01:22:04.660 --> 01:22:08.undefined How it is article ten play into that because -- ROBIN KAY LORD: I don't 875 01:22:12.223 --> 01:22:16.524 urgency either contracting party (. (Reading ) ,)F 876 01:22:16.524 --> 01:22:24.087 P we're the New Jersey criminal pretrial is the will is 877 01:22:24.087 --> 01:22:26.293 there such thing ago a provisional source ATTORNEY: 878 01:22:26.293 --> 01:22:30.127 There isn't so what P. JUSTICE PATTERSON: Why is that even' option to a 879 01:22:30.127 --> 01:22:33.753 bench warrant. ROBIN KAY LORD: Because the federal government is a party 880 01:22:33.753 --> 01:22:38.323 to the treaty right and to get to treaty I'm sorry to get to extradition to 881 01:22:38.323 --> 01:22:42.619 occur under the treaty the federal government has to be involved. So the 882 01:22:42.619 --> 01:22:46.416 state judge issues a writ, they go to the federal court, assist federal court issues 883 01:22:46.416 --> 01:22:49.938 a provisional arrest warrant and under the treaty and they have 60 days the 884 01:22:49.938 --> 01:22:53.710 bring him here. I'm not a treat' expert. JUSTICE PATTERSON: Provisional 885 01:22:53.710 --> 01:22:58.584 arrest as the place in federal court Lord that's what I -- ROBIN KAY 886 01:22:58.584 --> 01:23:01.661 LORD: I would respectful you the suggest that's my understanding as to the 887 01:23:01.661 --> 01:23:09.800 treaty. Because the state court -- order or bench warrant, has cannot be used in 888 01:23:09.800 --> 01:23:13.884 any federal treaty with a foreign country they talk with the state department 889 01:23:13.884 --> 01:23:19.472 being involved. Again, I'm not. JUSTICE FASCIALE: Finished it says issued 890 01:23:19.472 --> 01:23:21.961 pipe a judge for other (. (Reading ) ) at 891 01:23:21.961 --> 01:23:24.530 the end of paragraph section one of an level provision 892 01:23:24.530 --> 01:23:28.849 although arrest, it seems to indicate that the 893 01:23:28.849 --> 01:23:32.043 application shall contain a description of the offense, and 894 01:23:32.043 --> 01:23:35.580 under taking of the formalized request or extradition and a 895 01:23:35.580 --> 01:23:37.224 declaration of the exist knowledge I wasn't of 896 01:23:37.224 --> 01:23:40.246 arrest. Issued by a competent judicial 897 01:23:40.246 --> 01:23:43.094 authority that's under article 11. ROBIN KAY LORD: Right 898 01:23:43.094 --> 01:23:48.826 right above it five -- I'm sorry six A. This is how they characterize whose party 899 01:23:48.826 --> 01:23:52.553 to the treaty. In the indicates of a request I'm appellate right leg the 900 01:23:52.553 --> 01:23:56.533 United States, which this would be, they are ought indicate will and testament any 901 01:23:56.533 --> 01:23:59.415 official. (. (Reading ) ,) CHIEF JUSTICE 902 01:23:59.415 --> 01:24:02.262 RABNER: That doesn't mean the department of state undertakes the preliminary 903 01:24:02.262 --> 01:24:05.691 steps to during the time. That means there a party to the treaty. Ledger card 904 01:24:05.691 --> 01:24:11.608 exactly. So the preliminary steps that it the state would ask the court to 905 01:24:11.608 --> 01:24:16.103 issue a provisional arrest warrant under the treaty. You can -- I can articulate 906 01:24:16.103 --> 01:24:23.466 it or identified as in a way I wasn't. W I don't why couldn't be that a bench 907 01:24:23.466 --> 01:24:28.280 warrant. ROBIN KAY LORD: So -- so because traditionally we have parents 908 01:24:28.280 --> 01:24:32.584 when somebody failing to appear. He's not failing to appear. JUSTICE WAINER 909 01:24:32.584 --> 01:24:36.691 APTER: Apartment pallet the defendant is refusing to appear virtually, then 910 01:24:36.691 --> 01:24:41.214 doesn't that have some sort of volition Al piece the defendant could choose the 911 01:24:41.214 --> 01:24:47.028 app virtually but is refusing to. ROBIN KAY LORD: But -- appearing 912 01:24:47.028 --> 01:24:52.341 virtually be -- it would be a \excelled\compelled coerced parents. 913 01:24:52.341 --> 01:24:55.224 JUSTICE WAINER APTER: P. JUSTICE PATTERSON: If you're profit premium is 914 01:24:55.224 --> 01:25:01.671 dismiss much the charges, why would a defendant ever agree to appear virtually. 915 01:25:01.671 --> 01:25:04.174 ROBIN KAY LORD: So that's a great question and that I was conflicting that 916 01:25:04.174 --> 01:25:08.369 one of yours would ask. And the answer that I believe is as follows: There 917 01:25:08.369 --> 01:25:12.203 are some individuals like in this case we appeared virtually for a period of 918 01:25:12.203 --> 01:25:17.615 time because we were hope gel willing to PTI. In this case he fought forth because 919 01:25:17.615 --> 01:25:22.351 he said he didn't admit the right so we are hopefully at some point in time 920 01:25:22.351 --> 01:25:27.489 either within a motion within a PTI. There are some defendants who window 921 01:25:27.489 --> 01:25:32.643 want to participate virtually to get a quick resolution, maybe resolve it a P-D-P 922 01:25:32.643 --> 01:25:37.498 maybe get PTI so they can make application to come back in the. JUSTICE 923 01:25:37.498 --> 01:25:41.207 PATTERSON: That's understand current law your proposal go that we -- that we 924 01:25:41.207 --> 01:25:47.369 issue an opinion that says if there's no consent to a virtual appearances then the 925 01:25:47.369 --> 01:25:54.753 only remedy is to dismiss the charges. Under that remedy which is what you 926 01:25:54.753 --> 01:26:04.427 are asking the court to prescribe, why would any defendant ever agree to appear 927 01:26:04.427 --> 01:26:08.800 virtually. ROBIN KAY LORD: Because sometimes a dismissal is not looked 928 01:26:08.800 --> 01:26:17.913 as favorably as an acquittal or pitara P-D-P to immigration if they come what 929 01:26:17.913 --> 01:26:19.948 come back. CHIEF JUSTICE RABNER: The rule you're proceeds going in this case 930 01:26:19.948 --> 01:26:25.425 of course, would apply to some of the most serious violent climb cases as well 931 01:26:25.425 --> 01:26:31.311 murder cases, large scale drug traffic go. Those individuals could simply opt not 932 01:26:31.311 --> 01:26:37.901 to participate. Under the scheme you're proposing because the remedy is dismissal. 933 01:26:37.901 --> 01:26:40.864 ROBIN KAY LORD: We can't comp miss consecution along rights. There's 934 01:26:40.864 --> 01:26:46.482 a congress I right before I red light trial. We can't water that tabun M. 935 01:26:46.482 --> 01:26:48.416 JUSTICE PATTERSON: Please keep a voice up. ROBIN KAY LORD: We can't water 936 01:26:48.416 --> 01:26:52.262 that down. JUSTICE WAINER APTER: Why is that appropriate response knots 937 01:26:52.262 --> 01:26:58.037 a bench warrant so that it is put on hold, and if the person returns to the 938 01:26:58.037 --> 01:27:02.468 United States in any way, they can then stand trial are the herd? I'm not sure 939 01:27:02.468 --> 01:27:07.386 where it's constitutionally required that if someone is charged with a crime and 940 01:27:07.386 --> 01:27:13.671 then deported, and they choose not to participate virtually, that the case 941 01:27:13.671 --> 01:27:16.533 has to be dismissed? ROBIN KAY LORD: So Williams a bench warrant is issued, 942 01:27:16.533 --> 01:27:22.118 there's a entirely different constitutional proposition. It's what I call 943 01:27:22.118 --> 01:27:25.594 below a forever bench warrant. Because if there's not going to X-ray it go take 944 01:27:25.594 --> 01:27:29.821 a look for of the hypo using the 'em they back to to United States. Which, 945 01:27:29.821 --> 01:27:34.194 he it over to little to begin a waterproof phase a lot of times in for re-entry 946 01:27:34.194 --> 01:27:40.894 violations. Federal criminal violations. But then kicks in I think the appellate 947 01:27:40.894 --> 01:27:45.182 division misunderstand ago. My marshal a speedy trial is once there is a forever 948 01:27:45.182 --> 01:27:48.450 bench warrant and you're not doing anything to bring him back the Justice I mean 949 01:27:48.450 --> 01:27:53.516 this far' obligation to execute warrants then you're violating a different 950 01:27:53.516 --> 01:27:55.645 constitution -- different part of the do you mean cooks that is I right to a 951 01:27:55.645 --> 01:27:59.825 speedy trial. And, in fact Your Honor's asked if there's a I jurisdictions what 952 01:27:59.825 --> 01:28:04.787 the dough are the the do in other)s my colleague her prepare as excellent. 953 01:28:04.787 --> 01:28:09.214 And talks about there's a couple of cases they cite. US versus M Camden County 954 01:28:09.214 --> 01:28:13.927 O-N New Hampshire Y. JUSTICE WAINER APTER: Can you say that one more time. 955 01:28:13.927 --> 01:28:18.164 ROBIN KAY LORD: There was U.S. versus make con hey then the Hugh your 956 01:28:18.164 --> 01:28:22.785 case this is the two good cases once from Arizona one from Florida. US versus 957 01:28:22.785 --> 01:28:27.551 moon I see Apgar Y the speedy trial right about comprised by deportation. And 958 01:28:27.551 --> 01:28:35.456 they dismissed. Jesus the other case is Jesus R E S E N-D-I Z. The deportation 959 01:28:35.456 --> 01:28:39.174 they're resulted in a violation of a speedy trial rights and the charges were 960 01:28:39.174 --> 01:28:43.595 dismissed. These are federal cases. So the if he said are the once deport go. 961 01:28:43.595 --> 01:28:46.800 So they said you're going to deposit? We are going to dismiss. If it's recognized 962 01:28:46.800 --> 01:28:52.607 in federal court, to dismiss if you're deport go, why -- you know why is it 963 01:28:52.607 --> 01:28:57.416 such a foreign proposition the. JUSTICE NORIEGA: Aren't you stipulating 964 01:28:57.416 --> 01:29:03.323 past one key elements the escrow English Al act portion of the analysis? Because 965 01:29:03.323 --> 01:29:08.353 you've been suggesting that the deportation is what makes it somehow non volition 966 01:29:08.353 --> 01:29:16.534 Al right? But as far as we know, Mr. Reyes-Rodriguez is free in Mexico right? 967 01:29:16.534 --> 01:29:24.212 Okay. So isn't there some responsibility to make an attempt to comb come 968 01:29:24.212 --> 01:29:29.462 black the United States before it can be determined that that it's no one escrow 969 01:29:29.462 --> 01:29:33.844 English annual? ROBIN KAY LORD: Well, how would he do that. 970 01:29:33.844 --> 01:29:36.941 JUSTICE NORIEGA: Let me change the hypothetical. Let's take a say defendant is 971 01:29:36.941 --> 01:29:40.342 meld the federal custody. And we know that he could be held anywhere in the 972 01:29:40.342 --> 01:29:45.319 United States as a result of that. Sets help sees held the California and 973 01:29:45.319 --> 01:29:49.733 upon release is dropped out dropped off on the street in California. With zero 974 01:29:49.733 --> 01:29:56.322 dollars. And no ability to get to New Jersey. And the court is tomorrow. Are 975 01:29:56.322 --> 01:30:00.611 you is it the federal guilt or innocence fault that he couldn't make it back 976 01:30:00.611 --> 01:30:05.994 to New Jersey? JUSTICE: And should that be a reason not to issue a bench 977 01:30:05.994 --> 01:30:10.686 warrant? ROBIN KAY LORD: So, in Howie, the right the speedy trial occurred 978 01:30:10.686 --> 01:30:15.757 when it was a federal prisoners are held and I come state court. JUSTICE NORIEGA: 979 01:30:15.757 --> 01:30:19.591 He's not being held after release all together after Lee less in this case 980 01:30:19.591 --> 01:30:24.364 Mr. Reyes-Rodriguez has been released the federal government is not holding him. 981 01:30:24.364 --> 01:30:27.562 And the only reason ease from is because I don't have a quality tailingses 982 01:30:27.562 --> 01:30:30.860 to enter the country lawfully. So et cetera lights your different than suggest 983 01:30:30.860 --> 01:30:36.997 that go the federal government is somehow keeping him in Mexico. His status is 984 01:30:36.997 --> 01:30:40.076 what's keeping him the mix company. ROBIN KAY LORD: I turn but dis pre 985 01:30:40.076 --> 01:30:44.377 for the reason. He was deported slowly because of these charges. 986 01:30:44.377 --> 01:30:47.886 JUSTICE NORIEGA: That is the case is that the sole reason he was deposited? Because 987 01:30:47.886 --> 01:30:51.735 he couldn't be deposited would it a conviction. Right? Not just on the 988 01:30:51.735 --> 01:30:55.216 because of the arrest it may have contributed to other factors based on his 989 01:30:55.216 --> 01:30:58.290 status in the US but that wasn't the sole boyses for the deport. ATTORNEY: 990 01:30:58.290 --> 01:31:01.824 He was in the bore a machine ten years. Twenty years Bob accountant. He had 991 01:31:01.824 --> 01:31:07.782 US sit children, two of them one, in fact, was special needs as we know. And then 992 01:31:07.782 --> 01:31:12.060 he was making applications to stay and at the time begroan wore the country 993 01:31:12.060 --> 01:31:17.204 and the only other pranged to fulfill was good moral character and then he 994 01:31:17.204 --> 01:31:20.835 lost on that because of these charges. JUSTICE NORIEGA: Assess an application 995 01:31:20.835 --> 01:31:26.038 as depend to basis of his situation bus it -- but it was a discretionary decision 996 01:31:26.038 --> 01:31:30.215 the court immigration court mate it wasn't -- as a direct result of of these 997 01:31:30.215 --> 01:31:34.149 charges a lien. ROBIN KAY LORD: The appellate division actuality lourings 998 01:31:34.149 --> 01:31:37.686 that had another the end it's no, it lovely on is that we recognize that heats 999 01:31:37.686 --> 01:31:41.597 been deposited report ever thee charges. So I would respectful you disagree I think 1000 01:31:41.597 --> 01:31:45.791 the home reason why he's in mix company is because these charges. JUSTICE 1001 01:31:45.791 --> 01:31:48.890 FASCIALE: Is the oral argument because ever these charges because he was came 1002 01:31:48.890 --> 01:31:53.608 to ICE attention because of these charges? He gets arrested and charged so then 1003 01:31:53.608 --> 01:31:59.288 he comes to ICE -- he's you know he's brought the ICEs attention man then eventual 1004 01:31:59.288 --> 01:32:03.841 forth dollars as post the he's convicted and the reason up on/you know, as 1005 01:32:03.841 --> 01:32:07.631 just Noriega say there's been the conviction so it's not as if a conviction 1006 01:32:07.631 --> 01:32:11.981 triggered his being deposit abdominal and then deported. ROBIN KAY LORD: 1007 01:32:11.981 --> 01:32:14.844 Undocuments undocumented sits I object always deposit abdominal I guess right 1008 01:32:14.844 --> 01:32:17.692 but they've right in the obligation understand certain provisions under the 1009 01:32:17.692 --> 01:32:21.413 federal law to make application to remain in the country. For whatever reason 1010 01:32:21.413 --> 01:32:25.279 they don't. JUSTICE WAINER APTER: Applications had been granted correct. 1011 01:32:25.279 --> 01:32:27.377 ATTORNEY: I'm sorry. JUSTICE WAINER APTER: Those always ickiest 1012 01:32:27.377 --> 01:32:31.438 where the defendant will a green card and then committed a crime that nonetheless 1013 01:32:31.438 --> 01:32:36.577 made him removable correct. ROBIN KAY LORD: Yes. ROBIN KAY LORD: 1014 01:32:36.577 --> 01:32:41.299 He was not allowed to change his status because of these charges. If these 1015 01:32:41.299 --> 01:32:46.154 charges did not exist, he would have been allowed to change his status. I think 1016 01:32:46.154 --> 01:32:49.250 we. JUSTICE WAINER APTER: He was present from the country without legal 1017 01:32:49.250 --> 01:32:52.174 authorization. ROBIN KAY LORD: Yes. JUSTICE PATTERSON: What the appellate 1018 01:32:52.174 --> 01:32:55.820 division said, referring to the same neighbors the last paragraph he said, 1019 01:32:55.820 --> 01:32:59.040 also it is not lost on us that the immigration judge considered those 1020 01:32:59.040 --> 01:33:06.722 charges as a significant negative equity in both good moral character and discretionary 1021 01:33:06.722 --> 01:33:12.087 determinations. Or am I looking at assist wrong case? Yeah. So it's -- are 1022 01:33:12.087 --> 01:33:17.845 you saying the appellate division represented that the sole reason for the 1023 01:33:17.845 --> 01:33:20.630 deportation in this case was this charge. ROBIN KAY LORD: I think that 1024 01:33:20.630 --> 01:33:23.695 they were recognizing that they had to make reasonable accommodations to resolve 1025 01:33:23.695 --> 01:33:30.292 this case because it had an impact on where he was. That's my. JUSTICE 1026 01:33:30.292 --> 01:33:33.016 PATTERSON: That's different that be saying if it weren't for this charge, 1027 01:33:33.016 --> 01:33:38.155 unresolved charge with no conviction, there would have been no deportation. 1028 01:33:38.155 --> 01:33:42.334 ROBIN KAY LORD: I think that based upon me my reading much the immigration proceedings 1029 01:33:42.334 --> 01:33:46.404 I think that the answer would have been he would not have been deported if 1030 01:33:46.404 --> 01:33:50.333 these charges did not exist I mean uninitial any don't always make application 1031 01:33:50.333 --> 01:33:54.282 to change there status because if you don't rock the boat, you know. You don't 1032 01:33:54.282 --> 01:34:00.105 risk negative consequences. But he had the right to make application. And I think 1033 01:34:00.105 --> 01:34:05.521 we can't lose site of the in fact that you know they the same cones along you 1034 01:34:05.521 --> 01:34:10.122 route as citizens. And we are talking P-G a fend right of not appearing at 1035 01:34:10.122 --> 01:34:14.131 trial. And soul late feet of the government sole lieutenant any feet of the 1036 01:34:14.131 --> 01:34:18.370 state the state has the control as to who gets the right the be present' trial and 1037 01:34:18.370 --> 01:34:21.440 who doesn't. JUSTICE WAINER APTER: I'm not I should can painkillers 1038 01:34:21.440 --> 01:34:25.708 Mr. I causation that the state has the control. ROBIN KAY LORD: Because 1039 01:34:25.708 --> 01:34:33.034 -- they're -- failure to make any contact with ICE or the federal government 1040 01:34:33.034 --> 01:34:35.807 before deportation and after. JUSTICE WAINER APTER: I understand you 1041 01:34:35.807 --> 01:34:40.340 can can saying that they didn't exercise reasonable diligence. But that natural 1042 01:34:40.340 --> 01:34:46.203 the same a saying they've sole control. ICE Goss not have to guarantee or agree 1043 01:34:46.203 --> 01:34:51.159 to anything that the state requests. So the state could have reached out the 1044 01:34:51.159 --> 01:34:54.775 ICE before trial and said we would like four you not to deport this person 1045 01:34:54.775 --> 01:34:59.379 because we would like him to stand trial. And ICE could have said, okay. He is 1046 01:34:59.379 --> 01:35:03.988 being deposited anyway correct. ROBIN KAY LORD: If you don't -- yes. 1047 01:35:03.988 --> 01:35:09.415 JUSTICE WAINER APTER: Okay and then after -- I understand but you keep saying that it's 1048 01:35:09.415 --> 01:35:16.799 solely the state that has resulted in him being deported. And I don't think that 1049 01:35:16.799 --> 01:35:22.550 that is fair because there is no requirement that ICE agree to a request that 1050 01:35:22.550 --> 01:35:25.647 the state makes. Dollars. ROBIN KAY LORD: So my re actuality that 1051 01:35:25.647 --> 01:35:31.561 the upper Phlomis that follows: Why should they be allowed to choose who they a 1052 01:35:31.561 --> 01:35:35.093 electric to ask ICE to stay in the country and who they let the record reflect 1053 01:35:35.093 --> 01:35:38.406 not to ask ICE to stay in the increase so they're making the initial decision 1054 01:35:38.406 --> 01:35:42.054 that this person is not worth your of constitutional rights to be present at trial 1055 01:35:42.054 --> 01:35:46.129 for very minute entire decide two or not to make the phone call. Or that 1056 01:35:46.129 --> 01:35:48.769 communication. JUSTICE WAINER APTER: It's an unlike I that at the moment 1057 01:35:48.769 --> 01:35:52.565 that someone is charged with a crime that what to think go about is there 1058 01:35:52.565 --> 01:35:56.806 constitutional right to be present at trial. Correct. ROBIN KAY LORD: 1059 01:35:56.806 --> 01:36:01.976 The defendant is probably thinking how to I get off of Jill. JUSTICE WAINER 1060 01:36:01.976 --> 01:36:05.642 APTER: Correct. JUSTICE FASCIALE: Can I ask you a couple questions about 1061 01:36:05.642 --> 01:36:10.357 really what happened to ground? Let's say there's been bench warrant remained in 1062 01:36:10.357 --> 01:36:17.157 place, would the case then go on this kill list or inactive list in that county. 1063 01:36:17.157 --> 01:36:19.575 ROBIN KAY LORD: That's that's where bench warrant go from what I had Your 1064 01:36:19.575 --> 01:36:24.303 Honor. And. JUSTICE FASCIALE: If that's the case, I assume at some point 1065 01:36:24.303 --> 01:36:29.255 there would be a hearing before the assignment judge about what to do with 1066 01:36:29.255 --> 01:36:35.720 that case that's been stayed temporarily right. ROBIN KAY LORD: Yes. 1067 01:36:35.720 --> 01:36:38.146 JUSTICE FASCIALE: Do defense attorneys \she\show up at that sort of hearing or 1068 01:36:38.146 --> 01:36:41.199 is that. ROBIN KAY LORD: That's a the great question we never got 1069 01:36:41.199 --> 01:36:43.812 code that it happens there's this proceeding that happens judge trying the move 1070 01:36:43.812 --> 01:36:48.424 the calendar along the prosecutor goes and the case is called and we don't 1071 01:36:48.424 --> 01:36:52.599 really have an I hope put in it. But I do notice Saturdayss in this case that I 1072 01:36:52.599 --> 01:36:57.796 made speedy trial arguments below you can acre a bench warrant okay fine. Dismiss 1073 01:36:57.796 --> 01:37:01.964 this because as I a violation of the speedy trial rights it's a force of bench 1074 01:37:01.964 --> 01:37:05.051 warrant. JUSTICE FASCIALE: That's why I ask. Because if you were at this 1075 01:37:05.051 --> 01:37:11.256 hearing, you could renew you're speedy trial application if it had already 1076 01:37:11.256 --> 01:37:14.640 been denied previously right? You can still \mic\Mike this argument. ROBIN KAY 1077 01:37:14.640 --> 01:37:17.530 LORD: I guess so, yes. JUSTICE WAINER APTER: I thought the prosecutor 1078 01:37:17.530 --> 01:37:21.248 actually was -- I don't know what a kill list is if that's what we're calling it. 1079 01:37:21.248 --> 01:37:25.103 But I've thought that the Reyes-Rodriguez as saying that actually once they're 1080 01:37:25.103 --> 01:37:28.373 a bench warrant the case does not end up on the kill list. It is only a case 1081 01:37:28.373 --> 01:37:32.533 where there is no bench warrant that it ends up on the kill list and then gets 1082 01:37:32.533 --> 01:37:36.813 dismissed. Instead, once there is a bench warrant it states on some sort of 1083 01:37:36.813 --> 01:37:43.034 inactive but bench warrant list, stouths enter the person illegal help returns to 1084 01:37:43.034 --> 01:37:46.440 the United States they can be brought the trial in New Jersey. ROBIN KAY 1085 01:37:46.440 --> 01:37:50.828 LORD: Well, then if that's the case, I'm not at the -- hearing and so she's 1086 01:37:50.828 --> 01:37:56.023 nodding her head, yes, I guess that's that it then I guess I misunderstood the process 1087 01:37:56.023 --> 01:37:58.646 we are. JUSTICE FASCIALE: If that that is the case a Justice Wainer 1088 01:37:58.646 --> 01:38:03.971 Apter pointed out then you still do make an application if the case is on an 1089 01:38:03.971 --> 01:38:10.506 inability I've list not a quite kill list, to say, look it can't go on forever. 1090 01:38:10.506 --> 01:38:14.934 We re few a application to dismiss the indictment on speedy trial grounds you 1091 01:38:14.934 --> 01:38:19.536 could still do that. ATTORNEY: And did I if if I would have lost 1092 01:38:19.536 --> 01:38:23.294 I I guess I could have. JUSTICE HOFFMAN: There's a good clause analysis 1093 01:38:23.294 --> 01:38:28.242 that goes into the. If there's an opportunity to appear virtually, and if the 1094 01:38:28.242 --> 01:38:32.437 defendant says, he's noting the I'm not going to take opportunity. Wouldn't that 1095 01:38:32.437 --> 01:38:37.374 go in the analysis of whether takes good case or not take speedy trial. 1096 01:38:37.374 --> 01:38:40.333 ROBIN KAY LORD: So my understanding of speedy trial rights, is that the government 1097 01:38:40.333 --> 01:38:43.989 is the one who has an obligation to take a defendant to trial. The defendant 1098 01:38:43.989 --> 01:38:48.377 have an application to Tim him shiv the time and surgeon that if they cases 1099 01:38:48.377 --> 01:38:53.351 Kay and other cases they've dismissed, based upon speedy trial violations if 1100 01:38:53.351 --> 01:38:58.973 the government failed to exercise -- to execute a bench warrant they've what city 1101 01:38:58.973 --> 01:39:01.796 bench warrant exist they still have some obligations. JUSTICE HOFFMAN: 1102 01:39:01.796 --> 01:39:05.070 I'm asking a slight different question there's a exception to the speedy trial 1103 01:39:05.070 --> 01:39:11.032 rule if there is good cause shown. Now, if they trial if the if the defendants 1104 01:39:11.032 --> 01:39:16.834 position is, I want my trial to move at a certain pace. Therefore it's not 1105 01:39:16.834 --> 01:39:21.449 moving at the pace I want it, therefore there's a speedy trial violation. But 1106 01:39:21.449 --> 01:39:27.394 the defendant could move it at the pace the defendant wants it. By appearing 1107 01:39:27.394 --> 01:39:33.108 virtually. Shouldn't that be taken into consideration as to whether there is good 1108 01:39:33.108 --> 01:39:40.027 cause or not for there to be an exception erotology to the speedy trial. 1109 01:39:40.027 --> 01:39:43.222 ROBIN KAY LORD: I see that two Sprite cons accepts. The right to be appearing 1110 01:39:43.222 --> 01:39:46.178 virtually is waving a right to be present at trial. Which is a constitutional right 1111 01:39:46.178 --> 01:39:51.212 that you've. The -- the right the a speedy trial you wouldn't want to cons 1112 01:39:51.212 --> 01:39:54.166 taking a trial, not a speedy trial where your percent to do waiver a cons big 1113 01:39:54.166 --> 01:39:59.253 \a\your\you're \violate\vital see he want I comp, I counsel a rights. JUSTICE 1114 01:39:59.253 --> 01:40:02.553 HOFFMAN: The defendant can waive his. ROBIN KAY LORD: Sure the defendant 1115 01:40:02.553 --> 01:40:07.311 did not always I read before. JUSTICE HOFFMAN: But they can louvered 1116 01:40:07.311 --> 01:40:10.353 it's right they will. JUSTICE HOFFMAN: And the defendant had appeared virtually 1117 01:40:10.353 --> 01:40:15.530 Wells Fargo so it seems order to me that the defendant is saying, speedy trial 1118 01:40:15.530 --> 01:40:19.466 lock let's go log let's go we've the move this. Or there's a speedy trial 1119 01:40:19.466 --> 01:40:22.669 violation. And then the court would say, okay, well, then let's could a virtually 1120 01:40:22.669 --> 01:40:28.097 and the defendant says, no, I'm not going to move it along that way. Louvered 1121 01:40:28.097 --> 01:40:30.489 that's not. JUSTICE HOFFMAN: That wouldn't go to the construction takes 1122 01:40:30.489 --> 01:40:32.822 what's a good case or not. ROBIN KAY LORD: Well, the halls any exact I 1123 01:40:32.822 --> 01:40:35.778 what happened here. JUSTICE HOFFMAN: In that situation don't you think 1124 01:40:35.778 --> 01:40:40.290 that should go in the calculus takes whether they're \ace\as I good cause or not. 1125 01:40:40.290 --> 01:40:44.880 ROBIN KAY LORD: Understand the barker versus winning goes factors, it's 1126 01:40:44.880 --> 01:40:48.170 not just one factor that that controls. JUSTICE HOFFMAN: Right. ROBIN 1127 01:40:48.170 --> 01:40:51.704 KAY LORD: And you know, if the defendant want to wave his speedy trial rights, 1128 01:40:51.704 --> 01:40:54.992 that's on him. JUSTICE WAINER APTER: You said the didn't or here with you 1129 01:40:54.992 --> 01:40:58.490 the prosecutors seems the to say to say that the convey as ready for trial and 1130 01:40:58.490 --> 01:41:04.999 the defendant I don't know whether conceded agreed or did not agree the app virtually 1131 01:41:04.999 --> 01:41:08.287 but that is when the bench warrant was issued whether the wait as otherwise 1132 01:41:08.287 --> 01:41:13.781 ready for trial. Do you degrees. ROBIN KAY LORD: The day was the case 1133 01:41:13.781 --> 01:41:18.630 was the PTI issue which we were hopefully talking about third or fourth a offenses 1134 01:41:18.630 --> 01:41:22.904 for a person with no prior record. I mean, typically, you get PTI for those 1135 01:41:22.904 --> 01:41:26.862 type of ownerses. We were hopeful we would get. JUSTICE PATTERSON: We 1136 01:41:26.862 --> 01:41:29.079 are hop while a. JUSTICE NORIEGA: The minute that we no loaninger were 1137 01:41:29.079 --> 01:41:33.268 going to get a favorable rehabilitation rulings tow so they can make application 1138 01:41:33.268 --> 01:41:38.423 for re-entry, we started I made the application before the trial court and I 1139 01:41:38.423 --> 01:41:42.157 said, hey, you know I want the makes a motion the dismiss because you halls 1140 01:41:42.157 --> 01:41:45.323 a right to be present at trial. Because the next issue is a wait issue. So 1141 01:41:45.323 --> 01:41:47.724 what happened here, I don't know if it's that -- JUSTICE WAINER APTER: 1142 01:41:47.724 --> 01:41:52.652 So you're saying basically the defendant only conceded or oral only agreed the 1143 01:41:52.652 --> 01:41:57.450 participate virtually when he thought that it would help municipal him get PTI 1144 01:41:57.450 --> 01:42:02.558 and then once PTI was denied, then he said, okay I will no long he ever now participate 1145 01:42:02.558 --> 01:42:06.647 virtually and this case must be dismissed because I don't agree to participate 1146 01:42:06.647 --> 01:42:09.937 virtually Michael Jordan. ATTORNEY: We unless dollars on being present 1147 01:42:09.937 --> 01:42:16.523 at trial by all the ready we did prior to to deportation. Once we were deported, 1148 01:42:16.523 --> 01:42:21.735 we wanted a quick resolution as soon as possible and any thought I did best 1149 01:42:21.735 --> 01:42:25.697 interest the proceed virtually without making the motion it was a involuntary 1150 01:42:25.697 --> 01:42:28.283 appearance virtually. JUSTICE WAINER APTER: I understand once PTI was 1151 01:42:28.283 --> 01:42:31.392 denied and you lowest the appeal then what happened. ROBIN KAY LORD: Then 1152 01:42:31.392 --> 01:42:35.996 we indicated that we -- do not consent to appearing virtually for trial. I don't 1153 01:42:35.996 --> 01:42:40.156 even know how you could parking lots a have done it or -- how it can I cock 1154 01:42:40.156 --> 01:42:43.143 reply when you have you identification issue. JUSTICE WAINER APTER: Then as 1155 01:42:43.143 --> 01:42:48.534 I said no longer agreed to participate virtually and then the bench warrant 1156 01:42:48.534 --> 01:42:50.834 issued correct. ROBIN KAY LORD: Cons talking along rights were being 1157 01:42:50.834 --> 01:42:54.919 significantly harmed as a result of his virtually parents. JUSTICE NORIEGA: 1158 01:42:54.919 --> 01:42:59.744 Are you aware of any efforts made to attempt to re entry legally through traditional 1159 01:42:59.744 --> 01:43:02.036 means of applying to the department of state department of Homeland Security 1160 01:43:02.036 --> 01:43:07.326 to attempt to come back in lawfully. ROBIN KAY LORD: I've spoken with his 1161 01:43:07.326 --> 01:43:11.803 immigration attorney and allusion of these charges is a prerequisite. JUSTICE 1162 01:43:11.803 --> 01:43:15.431 NORIEGA: So he don't apply even without resolution. ROBIN KAY LORD: That's 1163 01:43:15.431 --> 01:43:19.267 he again No, I'm a immigration attorney, I only go. JUSTICE NORIEGA: I 1164 01:43:19.267 --> 01:43:22.219 wasn't) the details was an application made nowhere not. ROBIN KAY LORD: 1165 01:43:22.219 --> 01:43:26.941 No. I do believe there's also a weight go period. After deportation but you 1166 01:43:26.941 --> 01:43:31.273 would know person I I guess. CHIEF JUSTICE RABNER: I've come for the 1167 01:43:31.273 --> 01:43:34.526 straight \proposition\proper positions. No bench warrant should issue, because the 1168 01:43:34.526 --> 01:43:42.680 fail writer the app is involuntary. Bring him back or dismiss. I believe 1169 01:43:42.680 --> 01:43:47.753 is how you began your argument. Which means from a practice perspective, that 1170 01:43:47.753 --> 01:43:51.743 in most, in fact, in nearly all of these matters where an individual charges 1171 01:43:51.743 --> 01:43:59.008 dollars with an offense of varying greatest of seriousness, those charges will not 1172 01:43:59.008 --> 01:44:04.935 be pursued once a person is removed. Fair. ROBIN KAY LORD: Fair they 1173 01:44:04.935 --> 01:44:07.700 capital go. There's an presentation if you billed it they will come. Right? 1174 01:44:07.700 --> 01:44:17.590 So if this court impose he's such a rule, I would suspect that there would 1175 01:44:17.590 --> 01:44:20.801 be corporation to make sure when he's anterior he charges are pending, that they're 1176 01:44:20.801 --> 01:44:29.357 not deport go I mean what kind. JUSTICE FASCIALE: Corporation. 1177 01:44:29.357 --> 01:44:30.978 JUSTICE NORIEGA: F. ATTORNEY: Agreed. JUSTICE FASCIALE: Even if the 1178 01:44:30.978 --> 01:44:37.963 state does everything takes every available option, in the prosecutors tool 1179 01:44:37.963 --> 01:44:41.697 kit attempts extradition which might take years and years 15 state takes all of 1180 01:44:41.697 --> 01:44:48.175 that, and to no avail, the bottom you're bottom line is this needs to be dismissed 1181 01:44:48.175 --> 01:44:51.465 ad. ROBIN KAY LORD: Because constitutional rights cannot be 1182 01:44:51.465 --> 01:44:54.670 compromised MRI. JUSTICE FASCIALE: What the state Docetism extradition 1183 01:44:54.670 --> 01:45:00.809 ain't takes five, six, seven years? Is your argument that well, the argument from 1184 01:45:00.809 --> 01:45:04.680 you be that there still is a speedy trial violation because it taking a significant 1185 01:45:04.680 --> 01:45:08.908 amount of time? ROBIN KAY LORD: So that appears to be ones terns 1186 01:45:08.908 --> 01:45:12.006 they've P number one. And. JUSTICE FASCIALE: I think it's pretty -- I 1187 01:45:12.006 --> 01:45:17.423 think it's pretty well known that extradition does not take a short amount of time 1188 01:45:17.423 --> 01:45:21.041 with. ROBIN KAY LORD: If -- sorry the cut you off. If the defendant does 1189 01:45:21.041 --> 01:45:25.446 not consent. But under the treaty the defendant can consent. And we were 1190 01:45:25.446 --> 01:45:31.146 consenting all along. We con thanked to expenses we meet ago at the board if 1191 01:45:31.146 --> 01:45:34.809 could have be a inning excited I could have issued a provisional arrest warrant we 1192 01:45:34.809 --> 01:45:38.130 consented and we were. JUSTICE FASCIALE: That was P that was payroll 1193 01:45:38.130 --> 01:45:44.263 wasn't it you were stalking go payroll not -- you were seeking to consent to payroll 1194 01:45:44.263 --> 01:45:47.747 not to extradition am I right about that. ROBIN KAY LORD: I'm not sure 1195 01:45:47.747 --> 01:45:54.443 what I was consenting to. THE COURT: Temporary payroll into the 1196 01:45:54.443 --> 01:45:58.519 United States I thought that's what you told us. ROBIN KAY LORD: I didn't 1197 01:45:58.519 --> 01:46:01.565 say payroll. That's your concept it's familiar with. I think I I said we'll' 1198 01:46:01.565 --> 01:46:05.987 pray a cost. And bay when I hack at the treaty again, I think it's the federal 1199 01:46:05.987 --> 01:46:09.378 government who pays the suspensions. Because United States is the ones party 1200 01:46:09.378 --> 01:46:13.592 to the treat not the hole carpal tunnel prosecutors. So the excuse about the 1201 01:46:13.592 --> 01:46:17.536 expenses I'm not sure is legitimate one. But. JUSTICE NORIEGA: I don't 1202 01:46:17.536 --> 01:46:20.955 know expenses but the man hours Tennessee Reiss sources available are different 1203 01:46:20.955 --> 01:46:24.453 than the expenses. Lourdes if you're murder building him but we were consenting 1204 01:46:24.453 --> 01:46:27.638 to meet limb at the border. JUSTICE NORIEGA: But I think the paperwork 1205 01:46:27.638 --> 01:46:33.167 and the application and dealing with the other countries E see and everything else 1206 01:46:33.167 --> 01:46:36.827 involved I think involves a lot of man hours for a county prosecutor's office 1207 01:46:36.827 --> 01:46:43.523 to deal with. ROBIN KAY LORD: I would imagine so. Start the effort and 1208 01:46:43.523 --> 01:46:48.823 then make appropriate applications as it becoming you know impossible to come 1209 01:46:48.823 --> 01:46:51.683 the pollution. CHIEF JUSTICE RABNER: Come back to the proud proposal that 1210 01:46:51.683 --> 01:46:54.969 you're suggesting bring them back or dismiss because of the dons ago I ramifications. 1211 01:46:54.969 --> 01:47:01.157 Cons you go tuition at issues. That are presented. Are there constitutional 1212 01:47:01.157 --> 01:47:07.878 issues with respect to the issuance ever a bench warrant because your argument will 1213 01:47:07.878 --> 01:47:15.984 encourage more parents. Being sought. ROBIN KAY LORD: So. JUSTICE 1214 01:47:15.984 --> 01:47:18.265 WAINER APTER: Sorry I thought you were arguing even with a bench warrant it would 1215 01:47:18.265 --> 01:47:23.885 still have be dismissed was I wrong louvered on a different proposition. The 1216 01:47:23.885 --> 01:47:27.401 proposition for the bench warrant would be violation of speedy trial because 1217 01:47:27.401 --> 01:47:31.774 nobody's making any effort to break home the trial. CHIEF JUSTICE RABNER: 1218 01:47:31.774 --> 01:47:36.595 Is there case lays tow that effect that if a bench warrant issues take on it 1219 01:47:36.595 --> 01:47:42.287 you have the deportation removal proceedings. That that's held against the 1220 01:47:42.287 --> 01:47:45.483 state. ROBIN KAY LORD: Yes. I believe I cited some cases in a brief 1221 01:47:45.483 --> 01:47:52.215 that they the garbage the states a obligation to execute the warrant or a bench 1222 01:47:52.215 --> 01:47:56.023 warrant can't exist. So there's two competing contusion it is 1223 01:47:56.023 --> 01:47:59.500 \principals\principles one if the bench warrant would be the defendants five a meant 1224 01:47:59.500 --> 01:48:04.464 right the speedy trial the one the virtual appearance is the success right 1225 01:48:04.464 --> 01:48:07.995 to appear at trial. And. JUSTICE WAINER APTER: It's the speedy trial at 1226 01:48:07.995 --> 01:48:12.201 the end of the day because oils you could say defendant wouldn't appear but it 1227 01:48:12.201 --> 01:48:16.838 could just go on with him not appearing forever. But you would then still rely on 1228 01:48:16.838 --> 01:48:21.812 the speedy trial right to say, no, it has to be dismissed. Correct No, I'm 1229 01:48:21.812 --> 01:48:25.007 sure where the you say is a separate constitutional argument it's seems to 1230 01:48:25.007 --> 01:48:28.165 me writing the seam one it's speedy trial. You cannot bring them trial in person, 1231 01:48:28.165 --> 01:48:32.486 he does not consent to appear at trial pretrial there's this must be dismissed. 1232 01:48:32.486 --> 01:48:37.453 (Viral. ROBIN KAY LORD: I present from the proposition. Either way I 1233 01:48:37.453 --> 01:48:43.402 look ate my position is, that for hundred 2029 years ago we've given undocumented 1234 01:48:43.402 --> 01:48:47.802 sits the same right as sits abdominal we can't water it down because of 1235 01:48:47.802 --> 01:48:50.084 deportation. CHIEF JUSTICE RABNER: You suggests would a own produced you 1236 01:48:50.084 --> 01:48:54.563 are proper position if I heard you correctly. Defendant is charged, take 1237 01:48:54.563 --> 01:48:58.826 immigration considering consciouses out of the case defendant fails to appear. And 1238 01:48:58.826 --> 01:49:04.546 they have the right to seek dismissal of the charges. If the state doesn't 1239 01:49:04.546 --> 01:49:11.692 undertake sufficient actions to try to current their decision not to appear. 1240 01:49:11.692 --> 01:49:21.296 Their failure the app. ROBIN KAY LORD: Yes. CHIEF JUSTICE RABNER: 1241 01:49:21.296 --> 01:49:26.580 Other questions anyone? Anything you'd like to add. ROBIN KAY LORD: I 1242 01:49:26.580 --> 01:49:32.887 would respectfully suggest that the facts and circumstances of this case is 1243 01:49:32.887 --> 01:49:35.401 unique than any other that have been findings of fact the the court or court I 1244 01:49:35.401 --> 01:49:41.914 mean we literally had a defendant being towing stay here. Left a family, and is 1245 01:49:41.914 --> 01:49:44.857 auctionly awaiting this courts decision as to whether or not he can attempt 1246 01:49:44.857 --> 01:49:48.269 to move on were his life in the United States and be reunion natured with his 1247 01:49:48.269 --> 01:50:07.321 family. Thank you. CHIEF JUSTICE RABNER: Thank you. Miss Lasota. 1248 01:50:07.321 --> 01:50:08.885 LAURA B. LASOTA: May it please the court. This court is tasked in this case with 1249 01:50:08.885 --> 01:50:13.361 the siding how criminal trial cores are to proceed or defendant have been deported 1250 01:50:13.361 --> 01:50:18.757 but want to continue to participate in and resolve their criminal cases. The 1251 01:50:18.757 --> 01:50:22.877 office of the public defender adults that the. JUSTICE WAINER APTER: Sorry 1252 01:50:22.877 --> 01:50:27.244 I thought I heard I did defendant does not. LAURA B. LASOTA: I think the 1253 01:50:27.244 --> 01:50:33.614 question is broader than that. Which is what do we do in cases where the 1254 01:50:33.614 --> 01:50:37.136 defendant has wanted to participate at this point I know the position is now 1255 01:50:37.136 --> 01:50:42.033 there's a speedy trial violation. I do think the question it's broader and maybe 1256 01:50:42.033 --> 01:50:46.440 that should written I back a little bit to the class of defendants we're speaking 1257 01:50:46.440 --> 01:50:49.842 about in this case which are Defendants who are in contact with the court how 1258 01:50:49.842 --> 01:50:54.460 are in contact with their defense attorneys they're trying to figure out a way to 1259 01:50:54.460 --> 01:50:58.427 proceed digs might that tact they've remember deposited. JUSTICE 1260 01:50:58.427 --> 01:51:01.225 WAINER APTER: So convenience may significant difference whether or not the 1261 01:51:01.225 --> 01:51:06.970 person wants to proceed virtually. And to me it seems like it to be pure for us 1262 01:51:06.970 --> 01:51:10.600 to say what happens when the defendant does want to proceed virtually because 1263 01:51:10.600 --> 01:51:13.896 here the defendant no, sir, not want the proceed virtually everyone agrees 1264 01:51:13.896 --> 01:51:19.075 that that the the point the defendant refuses to proceed virtually to a trial correct. 1265 01:51:19.075 --> 01:51:22.364 LAURA B. LASOTA: Sure. In this particular case, but I think the courts 1266 01:51:22.364 --> 01:51:27.609 are gave some died answer as to what they should be doing in instances where. 1267 01:51:27.609 --> 01:51:31.167 JUSTICE WAINER APTER: In a differentiation the defendant does was the 1268 01:51:31.167 --> 01:51:34.020 proceed virtually. LAURA B. LASOTA: I think -- yes. For sure. But 1269 01:51:34.020 --> 01:51:39.278 I think too, it would be remiss upon this court to miss an opportunity to address 1270 01:51:39.278 --> 01:51:43.995 a situation where a defendant is seeking to participate whether or not that's 1271 01:51:43.995 --> 01:51:47.969 in person or virtually, but they're -- at this point in time they've been removed 1272 01:51:47.969 --> 01:51:51.482 the country. And there's really four pieces of gate answer that the office 1273 01:51:51.482 --> 01:51:55.816 of the public defender is requesting of this court. JUSTICE PATTERSON: 1274 01:51:55.816 --> 01:51:57.976 You have agree that's method raised by this case. LAURA B. LASOTA: I think 1275 01:51:57.976 --> 01:52:02.349 this case initially did raise it. And there was an although turn ask a the 1276 01:52:02.349 --> 01:52:06.731 point in this matter. As to whether or not. JUSTICE WAINER APTER: I think 1277 01:52:06.731 --> 01:52:11.398 pounce the defendant dis agreed Paul's but where she said defendant is not 1278 01:52:11.398 --> 01:52:15.781 participating virtually in a trial. Her whole argument is based on the core 1279 01:52:15.781 --> 01:52:18.664 constitutional right to be physically present at trial. LAURA B. LASOTA: 1280 01:52:18.664 --> 01:52:24.270 Sure. So if the courts concentration is going on to few points to make with 1281 01:52:24.270 --> 01:52:28.692 regard to that. And our position is slightly a little different than counsels. 1282 01:52:28.692 --> 01:52:33.303 I don't mean to desmin issue her position. But it wouldn't be the office of 1283 01:52:33.303 --> 01:52:36.525 the public defender position that if the defendants states at that point they've 1284 01:52:36.525 --> 01:52:40.914 been deported, they don't want to appear virtually, that dismissal is required 1285 01:52:40.914 --> 01:52:46.621 at that point. Now, at that point the defendant could make that's automatic 1286 01:52:46.621 --> 01:52:49.721 dismissal. At this point the defendant could make a speedy trial argument right? 1287 01:52:49.721 --> 01:52:53.991 And say, look, especially in the facts of this case, where the state has done 1288 01:52:53.991 --> 01:52:58.624 nothing, to facilitate an in person appearances and that is there duty under 1289 01:52:58.624 --> 01:53:04.222 the speedy there speedy trial obligation, that dismissal should be granted. But 1290 01:53:04.222 --> 01:53:07.896 I don't think it's an automatic grab. What the office of the public defender 1291 01:53:07.896 --> 01:53:13.329 suggests though it's not also an automatic bench warrant at this stage because 1292 01:53:13.329 --> 01:53:18.597 their defendants -- inability to appear in person in court is not view among I um-hmm 1293 01:53:18.597 --> 01:53:22.699 he referable the during this these ever defendants who want to parts. 1294 01:53:22.699 --> 01:53:26.020 JUSTICE WAINER APTER: Why is it not volition annual that's you just said these ever 1295 01:53:26.020 --> 01:53:29.950 defendants who want your participate. To me it's seems escrow once the defendant 1296 01:53:29.950 --> 01:53:34.322 is saying, I refused to participate virtually lams sure. So I think what is 1297 01:53:34.322 --> 01:53:38.079 get goes \lot of\lost is in that argument is the defendants constitutional right 1298 01:53:38.079 --> 01:53:42.915 to in person presence. And that can't be trumped by now making this all or nothing 1299 01:53:42.915 --> 01:53:47.199 chase that you have to now appear virtually or nothing. And I think that's 1300 01:53:47.199 --> 01:53:51.270 what needs to be controlled, is that the defendants choice. They've that 1301 01:53:51.270 --> 01:53:55.882 constitutional right. So I think at that point if we have a case like this or 1302 01:53:55.882 --> 01:53:59.922 the defendant is saying, I want to appear in person, I'm not appearing virtually, 1303 01:53:59.922 --> 01:54:03.898 and there's this also speedy trial argument that's a little separate from that. 1304 01:54:03.898 --> 01:54:08.323 At this point this court can provide some guidance as to what we do with those 1305 01:54:08.323 --> 01:54:13.497 cases moving Foster. And a bench warrant wouldn't be appropriate. I would say 1306 01:54:13.497 --> 01:54:17.834 authority that this court can go ahead and deceit a process as it would with other 1307 01:54:17.834 --> 01:54:23.406 times of cases where we don't put this on an inactive list where the case justling 1308 01:54:23.406 --> 01:54:26.040 he recalls on forever with to resolution. But rather than rather there this 1309 01:54:26.040 --> 01:54:30.442 would be some check insist some status conferences, to see if the future at 1310 01:54:30.442 --> 01:54:36.279 holding date, this is the -- does the procedural change? Is there a different 1311 01:54:36.279 --> 01:54:41.464 consideration? Is there speedy trial issue now at this point? Has the defendant 1312 01:54:41.464 --> 01:54:45.401 reconsidered? Has the state. CHIEF JUSTICE RABNER: Sowm for a second 1313 01:54:45.401 --> 01:54:49.397 that the case and cases like the ones you just describing two are the ordinary 1314 01:54:49.397 --> 01:54:52.396 measurement of we've which is about five years. LAURA B. LASOTA: Sure. 1315 01:54:52.396 --> 01:54:55.770 CHIEF JUSTICE RABNER: S that going to a concrete' speedy trial problem 1316 01:54:55.770 --> 01:55:01.029 the lumbar in indicates language I think would have to have justices had this 1317 01:55:01.029 --> 01:55:05.890 made the point mains implete case where the state has done everything, to try 1318 01:55:05.890 --> 01:55:10.162 to get the deported defendant in person and nothing has succeeded. And I think 1319 01:55:10.162 --> 01:55:14.894 in a case like that, it would be a harder it would be a up heal appellate for 1320 01:55:14.894 --> 01:55:19.513 the defendant at that point to say, this is a speedy trial violation, because 1321 01:55:19.513 --> 01:55:24.236 cardiac the country in person. Because they can't point to any negligence or really 1322 01:55:24.236 --> 01:55:27.682 bad faith on back and forth of the state but the might be some other facts 1323 01:55:27.682 --> 01:55:31.179 that might farm the credits a speedy trial issue in that case it's really back 1324 01:55:31.179 --> 01:55:37.270 fact on how the barker Wingo factors pan out there. JUSTICE WAINER APTER: Here 1325 01:55:37.270 --> 01:55:41.598 worts the bath on the part of the staple defendant as charged a crime, and he 1326 01:55:41.598 --> 01:55:48.681 was not OPRA extradited where is the bathe. TARA HANNA: Movement on you 1327 01:55:48.681 --> 01:55:55.500 bags is that. Facility in person appearance by using making using good faith 1328 01:55:55.500 --> 01:55:59.219 measures to use those stools that are available in the tool tool kit through 1329 01:55:59.219 --> 01:56:02.513 there are extradition to try to get that defendant in court as early as possible. 1330 01:56:02.513 --> 01:56:06.900 And that's needs the start way before removal proceedings. In this case is 1331 01:56:06.900 --> 01:56:11.578 a good case for that, where the ICE diner looked at the point much his arrest, 1332 01:56:11.578 --> 01:56:15.911 so the state the parties were aware at that point that there is this potential 1333 01:56:15.911 --> 01:56:21.278 risk. And the state did absolutely nothing in this case to try to facilitate in 1334 01:56:21.278 --> 01:56:25.791 person appearance from a detention facility. All the way the once the individual 1335 01:56:25.791 --> 01:56:31.964 was deposited. Even defense counsel had said. JUSTICE WAINER APTER: Could 1336 01:56:31.964 --> 01:56:35.099 you say one more time in the safety valve fit a me appearance from the detention 1337 01:56:35.099 --> 01:56:41.352 facility, that would be fine? I thought you were staying the state must convince 1338 01:56:41.352 --> 01:56:45.632 ICE not to deport the person. LAURA B. LASOTA: So there's multiple 1339 01:56:45.632 --> 01:56:51.312 tools and I think the state has the good faith obligation to try to utilize which 1340 01:56:51.312 --> 01:56:56.421 tools are best available under the circumstances. Our office has seen good 1341 01:56:56.421 --> 01:57:01.372 results with writs when a defendant is in a detention facility. With the state 1342 01:57:01.372 --> 01:57:07.093 obtaining that early enough in the process to try the writ the writ to state tort 1343 01:57:07.093 --> 01:57:12.165 at this point in state custody so this prosecution going forward. JUSTICE 1344 01:57:12.165 --> 01:57:18.191 FASCIALE: When someone is brought over from for a writ, let's say it's the this 1345 01:57:18.191 --> 01:57:23.356 is during the pretrial stages, if a judge signs the writ and that person that 1346 01:57:23.356 --> 01:57:28.882 defendant is brought over for a pretrial hearing, that defendant doesn't stay 1347 01:57:28.882 --> 01:57:34.496 in state custody, they're sent back to ICE offense times rights. LAURA B. 1348 01:57:34.496 --> 01:57:37.929 LASOTA: So I think it's dependent we've seen it different ways. I think it 1349 01:57:37.929 --> 01:57:43.002 also depends on what language is included in the writ. And whether or not the writ 1350 01:57:43.002 --> 01:57:46.243 is only gonna be I utility for that hearing versus holding on the -- the individual 1351 01:57:46.243 --> 01:57:51.831 until the state prosecution it's over. H this entire time the defendant as 1352 01:57:51.831 --> 01:57:56.434 appearing virtually. Why would the state be exist at bad faith by not production 1353 01:57:56.434 --> 01:58:03.488 for a in person appearance a defendant who has consented to appearing villain. 1354 01:58:03.488 --> 01:58:09.128 LAURA B. LASOTA: This mine a I'm not sure if that was necessarily by design 1355 01:58:09.128 --> 01:58:13.088 that the defendant -- defendant has to consent to appear virtually but I don't 1356 01:58:13.088 --> 01:58:17.405 think I don't know if here the state just went with that and that was the 1357 01:58:17.405 --> 01:58:21.326 appropriate dream stat the moment to make it work. Our position is if you know there's 1358 01:58:21.326 --> 01:58:25.303 gonna be removal proceedings happening which was the case here, they've to 1359 01:58:25.303 --> 01:58:30.509 do a little more use reasonable diligence to keep the person in the country 1360 01:58:30.509 --> 01:58:35.678 by utilizing these different tools that are available. P what to understand there 1361 01:58:35.678 --> 01:58:39.693 was a interest on to part of the defendant to pursue PTI, and for the limited 1362 01:58:39.693 --> 01:58:44.741 period in which that process place its sex out, the defendant was by consent 1363 01:58:44.741 --> 01:58:51.216 appearing virtually. But having failed to get PTI, all bets are off no for 1364 01:58:51.216 --> 01:58:57.017 consent. So is this really a good example this case, that we've do decide, is this 1365 01:58:57.017 --> 01:59:01.435 real a good example of the of the principle that you just sedated last will 1366 01:59:01.435 --> 01:59:06.964 and testament. LAURA B. LASOTA: So I think the state still has a speedy 1367 01:59:06.964 --> 01:59:10.375 trial obligation the facilitate in person appearance regardless enter the 1368 01:59:10.375 --> 01:59:13.334 substance where the defendant is saying, fine I don't con extent any more the 1369 01:59:13.334 --> 01:59:17.308 virtually. The state can still go forward anestri the utilize what tools they have 1370 01:59:17.308 --> 01:59:21.297 to facilitate the in person appearance than that the their obligation. N are 1371 01:59:21.297 --> 01:59:23.271 you supplement along the. JUSTICE NORIEGA: Are you suggesting at that 1372 01:59:23.271 --> 01:59:26.666 point head pain hearing although the state forward before the you have had we've 1373 01:59:26.666 --> 01:59:30.813 reach toy ICE reached out to this body we've made this application, we've got 1374 01:59:30.813 --> 01:59:37.622 no response. Good cause is established, bench warrant stays would that be 1375 01:59:37.622 --> 01:59:41.372 sufficient. LAURA B. LASOTA: So I still don't think the bench warrant would 1376 01:59:41.372 --> 01:59:46.421 be proper there because we're not talking about a escrow English annual non 1377 01:59:46.421 --> 01:59:49.142 parents Mrs. If. JUSTICE NORIEGA: I want to go back in a second stay on 1378 01:59:49.142 --> 01:59:54.523 this air second. If the state is doing everything possible contact go ICE 1379 01:59:54.523 --> 01:59:57.568 recordkeeping out making application also, submitting their files, accepted AIG copy 1380 01:59:57.568 --> 02:00:04.496 of the warrant, and nothing, is that enough does that defeat the speedy trial 1381 02:00:04.496 --> 02:00:08.363 argument. LAURA B. LASOTA: So again, that would have to come back to what 1382 02:00:08.363 --> 02:00:12.755 the other factors way out in the case. Again if the state is saying, we've 1383 02:00:12.755 --> 02:00:18.052 done everything, and that would have to include being amenable to virtual appearances 1384 02:00:18.052 --> 02:00:22.158 too like fine by can't bread the individual here in person, but we'd be willing 1385 02:00:22.158 --> 02:00:25.658 to have them appear virtually going forward. That point I think the defendant, 1386 02:00:25.658 --> 02:00:30.028 yeah, it's an up hill pallet gnars the state unget dollars negligently or bad 1387 02:00:30.028 --> 02:00:33.283 faith for a speedy trial else in obviously the other factor would have to be 1388 02:00:33.283 --> 02:00:39.076 weighed out there. JUSTICE NORIEGA: In terms of the bench warrant, aren't 1389 02:00:39.076 --> 02:00:45.558 bench warrant traditionally used as detainer they're holds for purposes of alogia 1390 02:00:45.558 --> 02:00:50.775 contact point for a defendant that sometimes is in other authorities is being you 1391 02:00:50.775 --> 02:00:56.949 know, held somewhere else, it's not solely for punishment for non 1392 02:00:56.949 --> 02:00:58.939 \patterns\appearance right. LAURA B. LASOTA: So under court rules, it is 1393 02:00:58.939 --> 02:01:03.091 for you'll tour the app. I mean,. JUSTICE NORIEGA: It says what it means 1394 02:01:03.091 --> 02:01:07.752 right? Failure to appear somebody failed the app if you're looking all funeral to 1395 02:01:07.752 --> 02:01:12.975 havely that's different from suggest that go it's a non volition at act. But 1396 02:01:12.975 --> 02:01:23.322 and I'll give a example. If a defendant is in federal payroll or they're on 1397 02:01:23.322 --> 02:01:26.824 federal house arrest Avenue this' angle praise at the time and they choose not to 1398 02:01:26.824 --> 02:01:30.010 go out because they don't want the investigate their payroll officer they 1399 02:01:30.010 --> 02:01:32.689 couldn't want assist goal the all the headaches so they just don't \she\show 1400 02:01:32.689 --> 02:01:36.256 up to court. But they're saying I can't leave the house because of this angle 1401 02:01:36.256 --> 02:01:41.305 monitor. Is that a escrow English Al act. LAURA B. LASOTA: I think that -- 1402 02:01:41.305 --> 02:01:46.849 that hypothetical would have to assume that the defendant didn't contact their 1403 02:01:46.849 --> 02:01:50.650 payroll officer to say hey I've court. And I need to show up to court otherwise 1404 02:01:50.650 --> 02:01:55.969 I would bench warrant. I mean, under that circumstance, let's say the defendant 1405 02:01:55.969 --> 02:02:00.293 and this is probably highly unlikely but the defendant reached out of to the payroll 1406 02:02:00.293 --> 02:02:04.807 officer and the payroll safe says your not going to cart. Then I think that's 1407 02:02:04.807 --> 02:02:10.094 not escrow. JUSTICE NORIEGA: Sure but what's -- what is stopping -- that 1408 02:02:10.094 --> 02:02:13.245 the the point we know Mr. Reyes-Rodriguez made no application to at the same 1409 02:02:13.245 --> 02:02:17.624 time to re-enter the country under the auspices of I have a criminal case, that 1410 02:02:17.624 --> 02:02:23.922 I need the come back to. And there are there are processes that exist for that 1411 02:02:23.922 --> 02:02:26.594 possible outcome. LAURA B. LASOTA: Sure. JUSTICE NORIEGA: They've 1412 02:02:26.594 --> 02:02:31.648 not been taken in this case so how necessary one different the lopes how is 1413 02:02:31.648 --> 02:02:35.728 the case. LAURA B. LASOTA: Not required a parent. LAURA B. LASOTA: 1414 02:02:35.728 --> 02:02:38.245 So I think that goes to maybe one respect \a\your\you're early he ever yes, 1415 02:02:38.245 --> 02:02:42.486 sir in this case ace bench warrant practically isn't going to work to bring a 1416 02:02:42.486 --> 02:02:45.171 defendant lawful through into the country it's going to behind that. In bench 1417 02:02:45.171 --> 02:02:49.606 warrant and the open state cases to my understanding if of Mr. Reyes-Rodriguez 1418 02:02:49.606 --> 02:02:55.626 were to apply for lawful re dismiss now, with the open bench warrant and the 1419 02:02:55.626 --> 02:02:58.921 state charges that attached to it he's going to be denied. So the bench warrant 1420 02:02:58.921 --> 02:03:04.569 not actually doing what it's designed to do which is facilitate in person 1421 02:03:04.569 --> 02:03:06.173 appearance. JUSTICE WAINER APTER: I thought the argument if the prosecutor 1422 02:03:06.173 --> 02:03:11.754 is that the bench warrant is facilitated if he end up black the country for 1423 02:03:11.754 --> 02:03:16.816 example, re entering illegal help. Then he can be brought to trial in New Jersey. 1424 02:03:16.816 --> 02:03:20.103 LAURA B. LASOTA: Sure so I think too that's unlikely. And that would 1425 02:03:20.103 --> 02:03:26.237 rely on a series of hypotheticals where you know, the prosecutors herself said 1426 02:03:26.237 --> 02:03:30.053 that minutes immigration called them. Other times they don't. This is a department 1427 02:03:30.053 --> 02:03:33.160 arrested by a immigration this is then just goes through the immigration process 1428 02:03:33.160 --> 02:03:36.435 again without the state even being aware. JUSTICE NORIEGA: That's part 1429 02:03:36.435 --> 02:03:41.523 of the part your suggesting that in hypothetical that he has not taken any 1430 02:03:41.523 --> 02:03:45.126 action and that nothing has been done for any attempt to re entry the United 1431 02:03:45.126 --> 02:03:52.830 States that the court should not should seem that he can't get back in and therefore 1432 02:03:52.830 --> 02:03:58.149 not issue a bench warrant. Do you know what I mean there's no -- there's no 1433 02:03:58.149 --> 02:04:02.211 work being done by did defendant to suggest what efforts have been made to 1434 02:04:02.211 --> 02:04:07.685 attempt to get to court in order to justify not having a bench warrant issued. 1435 02:04:07.685 --> 02:04:10.908 LAURA B. LASOTA: Well, in this case I think you do have a efforts specifically miss. 1436 02:04:10.908 --> 02:04:15.213 ROBIN KAY LORD: Had reported the starts still AI that the was about to 1437 02:04:15.213 --> 02:04:20.179 be deported about a little order the plain. He is in contact with his attorney. 1438 02:04:20.179 --> 02:04:24.043 Trying the figure out what the next steps ever in this case. I think what 1439 02:04:24.043 --> 02:04:28.421 Your Honor is suggesting is that the defendant make an I'll fated attempt to 1440 02:04:28.421 --> 02:04:32.505 try to a fly for lawful readmission knowing that he's not going to be granted 1441 02:04:32.505 --> 02:04:36.895 that. Because of the opening bench warrant in the state charges the append go state 1442 02:04:36.895 --> 02:04:41.886 charge and then show the cart hey I tried but I lost. It's seems like it a futile 1443 02:04:41.886 --> 02:04:46.496 proposition to have to to do that when we know that's the result. JUSTICE 1444 02:04:46.496 --> 02:04:48.655 PATTERSON: That is the suspect paid on the ream be lawyer signify seeking of what 1445 02:04:48.655 --> 02:04:55.238 the state should do which is to make an effort to put a stop to a deport patience 1446 02:04:55.238 --> 02:05:02.312 that is underway and and knowing that it's extraordinarily unlikely that is 1447 02:05:02.312 --> 02:05:07.381 what's go -- that the brakes are gonna be put on the. LAURA B. LASOTA: 1448 02:05:07.381 --> 02:05:11.318 Sure it's you can like any defendant trying to re admit himself, it's not 1449 02:05:11.318 --> 02:05:15.073 necessarily unlike entry the states trying the utilize thee tools and again the states. 1450 02:05:15.073 --> 02:05:18.373 JUSTICE WAINER APTER: So how many case goes have you seen where ICE agrees 1451 02:05:18.373 --> 02:05:25.759 not to die port someone because of one of the tool kit tools. LAURA B. 1452 02:05:25.759 --> 02:05:29.423 LASOTA: So moneys a office wheelchair had a significant success with writs 1453 02:05:29.423 --> 02:05:33.800 when the persons is in ICE detention and either father usually the state, but a defendant 1454 02:05:33.800 --> 02:05:39.670 can request a writ as well, and that's been able to facilitate in turn appearance 1455 02:05:39.670 --> 02:05:43.926 in court. JUSTICE PATTERSON: That's a ICE facility somewhere the United 1456 02:05:43.926 --> 02:05:46.431 States. LAURA B. LASOTA: Yes. JUSTICE WAINER APTER: And I didn't 1457 02:05:46.431 --> 02:05:51.055 mean in person appearance for one I think Justice Pierre-Louis mentioned we 1458 02:05:51.055 --> 02:05:55.267 are talking about the person not being detained a piece any more. And being 1459 02:05:55.267 --> 02:06:02.060 attend but the state where have you seen success with a tool kit response where 1460 02:06:02.060 --> 02:06:06.037 ICE says, eke we go not gotta the person, here you can have the person back 1461 02:06:06.037 --> 02:06:09.591 in state custody until their criminal trial is over. LAURA B. LASOTA: So 1462 02:06:09.591 --> 02:06:14.413 we've had that. But we've also had -- and it's sporadic all across the state 1463 02:06:14.413 --> 02:06:19.592 how denieding on wear these cases are in their procedural where we've seen that. 1464 02:06:19.592 --> 02:06:23.771 Where is generally have remember granted and honored by ICE detention facility 1465 02:06:23.771 --> 02:06:28.718 in our experience from our informal apologize of our attorneys. The one 1466 02:06:28.718 --> 02:06:32.224 thing I would notice it's we've even they success with situations where the 1467 02:06:32.224 --> 02:06:36.403 defendant has been deposited, and all the parties have come together to kind of work 1468 02:06:36.403 --> 02:06:40.348 together to figure out a resolution where there's tests have even been an of 1469 02:06:40.348 --> 02:06:43.173 course these are lower level crimes but these are defendants who are still 1470 02:06:43.173 --> 02:06:46.706 in contact with their attorneys and the court and they've actually been tile 1471 02:06:46.706 --> 02:06:51.802 the sentenced to things like fines and fees, we've client who's serving a PTI from 1472 02:06:51.802 --> 02:06:55.307 affair so. JUSTICE WAINER APTER: But here the defendant refuses the 1473 02:06:55.307 --> 02:07:01.222 participate virtually correct. LAURA B. LASOTA: Correct (. Q So 1474 02:07:01.222 --> 02:07:03.518 why is that? ATTORNEY: That terms they answer that I provided before. 1475 02:07:03.518 --> 02:07:08.016 Which is that it's the constitutional right of the defendant to request that 1476 02:07:08.016 --> 02:07:11.747 he appear in fern. At that point. CHIEF JUSTICE RABNER: In order that toss 1477 02:07:11.747 --> 02:07:16.036 go whether it's a choice or not. Right? I agree that the defendant has a 1478 02:07:16.036 --> 02:07:21.299 cons talking along right to be present at trial. That does not impact whether 1479 02:07:21.299 --> 02:07:27.391 the defendant is choosing at this point, not to appear virtually and to stand 1480 02:07:27.391 --> 02:07:31.750 on his cons purchasing along right to only appear at trial. There are many cons 1481 02:07:31.750 --> 02:07:35.703 as I rights where the defendant can choose the wave it or can choose not to. 1482 02:07:35.703 --> 02:07:39.552 And that's 'til a choice. LAURA B. LASOTA: Insurance a choice but again 1483 02:07:39.552 --> 02:07:48.335 we shouldn't then punish the defendant by that choice in saying that -- well, I 1484 02:07:48.335 --> 02:07:53.642 think maybe what Your Honor suggest goes it's that we are forcing him to appear 1485 02:07:53.642 --> 02:07:55.489 virtually policy and procedure. JUSTICE NORIEGA: I doesn't have to the 1486 02:07:55.489 --> 02:07:59.313 other option is the bench warrant just stays and what is the what is the punishment 1487 02:07:59.313 --> 02:08:02.493 for that? What does that cause I can't say. LAURA B. LASOTA: Sure our 1488 02:08:02.493 --> 02:08:05.782 position is the bench warrant wouldn't stay. Because because there's a choice 1489 02:08:05.782 --> 02:08:11.247 at this point the non -- fairly retire the app is no one escrow English Al 1490 02:08:11.247 --> 02:08:16.226 based on to removal. So at that point that's what's controlling that decision and 1491 02:08:16.226 --> 02:08:19.404 a bench warrant would be inappropriate walls your trustee go that defendant 1492 02:08:19.404 --> 02:08:24.663 as if he's escrow Englishly failing to appear to show up to court because she's 1493 02:08:24.663 --> 02:08:29.702 chosen hills right. JUSTICE PATTERSON: Same question I had for a colleague 1494 02:08:29.702 --> 02:08:34.416 why would any defendant the agree to a virtual proceeding if the remedy that 1495 02:08:34.416 --> 02:08:40.677 would be imposed if they -- is not a bench warrant but is the dismissal of their 1496 02:08:40.677 --> 02:08:42.978 charges no matter how serious. LAURA B. LASOTA: Analysis empty the 1497 02:08:42.978 --> 02:08:48.910 remedy I'm advocating for today. Again, I think these cases can be placed on a calendar 1498 02:08:48.910 --> 02:08:52.654 where there can be a hearing date zosters dollars with them. That the court 1499 02:08:52.654 --> 02:08:57.946 can then check up on as opposed to. JUSTICE WAINER APTER: Isn't what the 1500 02:08:57.946 --> 02:08:59.693 bench warrant does. LAURA B. LASOTA: There's the hearing. This is 1501 02:08:59.693 --> 02:09:06.043 place on to act calendar and it's not visited again will if the warrant is vacated 1502 02:09:06.043 --> 02:09:09.285 (. JUSTICE PATTERSON: So be \a\your\you're state maim itch con at 1503 02:09:09.285 --> 02:09:12.348 the present time any virtual proceeding I have a right to be there live. I'm 1504 02:09:12.348 --> 02:09:20.291 not coming. And -- and the and the what sidewalk August should happen is a to a 1505 02:09:20.291 --> 02:09:24.233 conversation to review that situation periodically. LAURA B. LASOTA: 1506 02:09:24.233 --> 02:09:28.885 Sure. I think that's well within the rule making authority of this court. 1507 02:09:28.885 --> 02:09:31.578 JUSTICE PATTERSON: So what happened for a speedy trial. LAURA B. LASOTA: 1508 02:09:31.578 --> 02:09:36.299 In case a change of circumstances. There's a whole lowest of reasons why a 1509 02:09:36.299 --> 02:09:39.265 defendant might change myself mind. There might be a speedy trial issue that's 1510 02:09:39.265 --> 02:09:44.184 more ripe at that point. The state might not decide to pursue the prosecution 1511 02:09:44.184 --> 02:09:49.808 there could be a whole host of liens. JUSTICE FASCIALE: Against senate the maps 1512 02:09:49.808 --> 02:09:52.313 tore speedy trial pretrial. LAURA B. LASOTA: I think that the point what 1513 02:09:52.313 --> 02:09:56.882 counts against the state is if they've not exercised any diligence in trying to 1514 02:09:56.882 --> 02:10:01.838 facilitate in person appearance. If they've done that in that case then I don't 1515 02:10:01.838 --> 02:10:04.928 think that period of time whereas Your Honor described as a stale mail then 1516 02:10:04.928 --> 02:10:08.551 that would really unit towards the state ATM. JUSTICE NORIEGA: Isn't that 1517 02:10:08.551 --> 02:10:11.754 hmm as the the bench warrant issues, and both sides decide what this they're 1518 02:10:11.754 --> 02:10:17.443 going to do next. The state can endeavor to bright assist visit work the ICE. 1519 02:10:17.443 --> 02:10:21.459 The defendant can washing with the department of home daughter and treat the 1520 02:10:21.459 --> 02:10:25.483 figure out. Either way once there's a next step, somebody makes a motion to either 1521 02:10:25.483 --> 02:10:29.003 left the bench warrant or to vacate the bench warrant and ask that it be moved 1522 02:10:29.003 --> 02:10:33.396 back on to the caliber. Why is that so unreasonable and what harm is there 1523 02:10:33.396 --> 02:10:36.666 in the interim with the existence of the bench warrant. LAURA B. LASOTA: 1524 02:10:36.666 --> 02:10:39.585 I think whether the exist apples of the bench warrant that is going to behind 1525 02:10:39.585 --> 02:10:44.582 the defendants ability on their pinned the real try to lawfully re-enter the 1526 02:10:44.582 --> 02:10:46.334 country at that point. JUSTICE NORIEGA: Like I'm sensation the defendant 1527 02:10:46.334 --> 02:10:51.048 get to a point where they have an immigration attorney and there about to apply 1528 02:10:51.048 --> 02:10:54.022 the come book from the United States and they say I'm about to go to a meeting 1529 02:10:54.022 --> 02:10:57.417 at assist consulate I'm about to be given perfect terry therein the bench warrant 1530 02:10:57.417 --> 02:11:01.700 else go stock a hinderance, I making a motion to lift it for a period of time 1531 02:11:01.700 --> 02:11:06.068 of two weeks to allow for the meeting to take place. And then upon the 1532 02:11:06.068 --> 02:11:09.167 conclusion of it still health has been so I think if I can woman diagnostic enter 1533 02:11:09.167 --> 02:11:12.879 our not. And then a two aches you can butt the bench warrant back on. 1534 02:11:12.879 --> 02:11:16.292 Likewise what's the harm around department important too moment. LAURA B. 1535 02:11:16.292 --> 02:11:20.126 LASOTA: I think the harm is that the bench warrant is causing it's not just the 1536 02:11:20.126 --> 02:11:24.784 bench warrant it's the open state criminal charges that make readmission tilt 1537 02:11:24.784 --> 02:11:27.742 as. JUSTICE WAINER APTER: If someone commit a crime enter the United States 1538 02:11:27.742 --> 02:11:33.436 and is then picked up by ICE and deposited, yes, it is possible that the open 1539 02:11:33.436 --> 02:11:39.262 criminal charges would be problematic for that person but that could be because 1540 02:11:39.262 --> 02:11:44.133 they pointed a crime are the United States. I'm just not sure why that means the 1541 02:11:44.133 --> 02:11:49.298 state automatically has to dismiss all prosecutions once the defendant and 1542 02:11:49.298 --> 02:11:52.935 you say you're not arguing this but it seems like you are, that once the defendant 1543 02:11:52.935 --> 02:11:57.872 does not want to participate virtually, then that's not escrow like therefore 1544 02:11:57.872 --> 02:12:01.041 the states to dismiss the provision. LAURA B. LASOTA: That is -- again 1545 02:12:01.041 --> 02:12:06.406 reaffirm go I'm not arguing that there's an automatic dismissal. I'm speedy 1546 02:12:06.406 --> 02:12:10.236 trial grounds from the defendant doesn't want a virtually. JUSTICE WAINER 1547 02:12:10.236 --> 02:12:13.335 APTER: So when would it not be dismissed. LAURA B. LASOTA: The defendant 1548 02:12:13.335 --> 02:12:17.592 still does not want the participate virtually. LAURA B. LASOTA: I think 1549 02:12:17.592 --> 02:12:22.190 again come back to the facts of that case. And if like the 'em earlier the 1550 02:12:22.190 --> 02:12:26.930 state has done everything in it's reasonable diligence to try to facilitate in person 1551 02:12:26.930 --> 02:12:30.521 appearances it's going to be say unhail bilateral the defendant to say, look they've 1552 02:12:30.521 --> 02:12:36.730 failed out their duties tory to get me hear in person in court. JUSTICE 1553 02:12:36.730 --> 02:12:39.722 PATTERSON: Which as discussed with Ms. Lord, do you have a position with respect 1554 02:12:39.722 --> 02:12:47.771 to under the US Mexico treaty a bench warrant is necessary in order to get an 1555 02:12:47.771 --> 02:12:50.965 extradition for Mexico. LAURA B. LASOTA: About regard take that, the treaty 1556 02:12:50.965 --> 02:12:55.939 I think is just parking lot noted doesn't else in help say bench warrant. But to 1557 02:12:55.939 --> 02:12:59.546 assist extent that a bench warrant would be helpful under those acres circumstances, 1558 02:12:59.546 --> 02:13:06.481 are position is fine, because under those circumstances the state is -- the 1559 02:13:06.481 --> 02:13:09.641 bench warrant acting in the way that bench warrant should act right? It's 1560 02:13:09.641 --> 02:13:14.050 trying to facilitate this in turn parents. Spoke the state says, we need the 1561 02:13:14.050 --> 02:13:17.117 bench warrant because we're go X-ray them shown are in the limited reason the bench 1562 02:13:17.117 --> 02:13:21.967 warrant would be possible. But I think the important point is that the state 1563 02:13:21.967 --> 02:13:26.059 has to be serious. It can't be like this case where they say, by might want 1564 02:13:26.059 --> 02:13:31.216 it for extradition but bay we are not going to extradite. So that is our position 1565 02:13:31.216 --> 02:13:37.485 on that. JUSTICE NORIEGA: Does the have a position with regard to the 1566 02:13:37.485 --> 02:13:44.233 a defendant ability the consent to detention at the outset post. LAURA B. LASOTA: 1567 02:13:44.233 --> 02:13:49.964 Sure. So I do think that's raised slightly in this case. The one thing a 1568 02:13:49.964 --> 02:13:53.714 couple things I'll pit out to the appear I think I do agree with my adversary 1569 02:13:53.714 --> 02:13:59.552 here. That the C-J-R-A don't limit this there's actually C it's pretty absent on 1570 02:13:59.552 --> 02:14:05.800 to discussion consent or discussing whether a defendant can file there own 1571 02:14:05.800 --> 02:14:06.534 detention. JUSTICE PATTERSON: Did does not limit what. LAURA B. 1572 02:14:06.534 --> 02:14:09.959 LASOTA: Enters the language the C G R-A that point remember prohibit a defendant 1573 02:14:09.959 --> 02:14:15.227 the condo the detention there's no language in the C G R-A that prohibit a defendant 1574 02:14:15.227 --> 02:14:20.039 from filing Mr. Own detention moneys. JUSTICE FASCIALE: Abdominal have you 1575 02:14:20.039 --> 02:14:24.620 the scene TKEFRTS. LAURA B. LASOTA: Yes, it is a practice typically 1576 02:14:24.620 --> 02:14:28.735 -- I will be candid this is maybe the first case I've determine person appearances 1577 02:14:28.735 --> 02:14:31.679 see with respect a defendant has filed they're own motion. Where I think it's 1578 02:14:31.679 --> 02:14:36.911 -- typically happening is where the state has already filed the motion for 1579 02:14:36.911 --> 02:14:41.840 detention and then the defendant. JUSTICE PATTERSON: C-J-R-A authorize 1580 02:14:41.840 --> 02:14:49.113 a consent detention when the factors that warrant detention within the description 1581 02:14:49.113 --> 02:14:56.748 of the court, are simply unmet. LAURA B. LASOTA: C silent although. 1582 02:14:56.748 --> 02:15:00.403 JUSTICE PATTERSON: I understand that. Do you see what I'm saying you could every 1583 02:15:00.403 --> 02:15:05.384 a situation where it's a close call, and the defendant doesn't oppose the motion 1584 02:15:05.384 --> 02:15:11.107 for a detention when there are factors that would warrant detention or maybe 1585 02:15:11.107 --> 02:15:14.733 not warrant detention within the discretion of the court. But if we're talking 1586 02:15:14.733 --> 02:15:21.357 about a sec where there is no reason that is recognized by the statute for detention, 1587 02:15:21.357 --> 02:15:30.861 does the C-J-R-A authorize the court the detention a says this is gonna be help 1588 02:15:30.861 --> 02:15:34.510 me for stall deportation so I'm in judge? January. TARA HANNA: Enters 1589 02:15:34.510 --> 02:15:39.352 the language in the authorization that specifically really no language in that 1590 02:15:39.352 --> 02:15:43.335 statute addressing that scenario. But I think you know, defendants can consent 1591 02:15:43.335 --> 02:15:47.600 to things they couldn't/the things all the sometime. As long always -- and courts 1592 02:15:47.600 --> 02:15:52.770 September that consent when it's knowing involuntarily made but the I don't 1593 02:15:52.770 --> 02:15:55.093 know I hope any differentiate and I think my adversary probably also made this 1594 02:15:55.093 --> 02:15:59.657 point that differentiate this type of case from loams cares and Lopez Carrera 1595 02:15:59.657 --> 02:16:04.499 that was a state motion that the defendants were objecting to. Whereas here 1596 02:16:04.499 --> 02:16:09.541 we've defendant whose consenting to that type of revocation order that was in this 1597 02:16:09.541 --> 02:16:13.809 case. So I think that does begin distinguish did MRI I. CHIEF 1598 02:16:13.809 --> 02:16:18.199 JUSTICE RABNER: Your office scene some success with writs, can you define fight 1599 02:16:18.199 --> 02:16:22.474 that emotion the none of cases, and what percentage of cases. LAURA B. 1600 02:16:22.474 --> 02:16:26.417 LASOTA: Sure. So I don't have a number for Your Honor, it's not something that 1601 02:16:26.417 --> 02:16:32.145 we really monitor we've just had than normal and some of the Champs we arer 1602 02:16:32.145 --> 02:16:36.326 included in our appendix to a proof. The certifications from various attorneys 1603 02:16:36.326 --> 02:16:42.576 as to where writs have been honored and have been successful. I don't have like 1604 02:16:42.576 --> 02:16:46.075 a exact concrete number. JUSTICE FASCIALE: That is when a trial is 1605 02:16:46.075 --> 02:16:50.715 already skidded. LAURA B. LASOTA: They tend to be the note cases. Meet 1606 02:16:50.715 --> 02:16:54.847 help candid or the court preliminary aware of any case where at the cusp of 1607 02:16:54.847 --> 02:16:59.371 trial and the courts decided and defendants been deported and the court has decided 1608 02:16:59.371 --> 02:17:05.133 one way or the other that the departments thirl I'm not sure of. JUSTICE 1609 02:17:05.133 --> 02:17:09.852 NORIEGA: I'm asking in the cases in the situations that the focus in your office 1610 02:17:09.852 --> 02:17:16.332 have been involved in, is it the case that they have been able to obtain a 1611 02:17:16.332 --> 02:17:22.272 writ from a judge and ICE has proceeded the defendant to appear for trial. 1612 02:17:22.272 --> 02:17:25.771 LAURA B. LASOTA: Again I don't think we've had a case get that far. JUSTICE 1613 02:17:25.771 --> 02:17:30.387 FASCIALE: So -- what the first asked the question you said it depends. So 1614 02:17:30.387 --> 02:17:38.680 it's my understanding -- so let's say window of' case defendants been indicted, he's 1615 02:17:38.680 --> 02:17:44.413 ICE lodge a detainer. He's released on you know, he's released not detained 1616 02:17:44.413 --> 02:17:53.132 by the state court and immediately goes into ICE custody. And the state court 1617 02:17:53.132 --> 02:17:55.640 proceedings involve hearings. So the defendant needs to be present at a hearing. 1618 02:17:55.640 --> 02:18:00.478 There's no trial date in site it might be that the trial is not going to start 1619 02:18:00.478 --> 02:18:06.541 for at year. The defendant needs to be writ over from ICE a little bit sustained 1620 02:18:06.541 --> 02:18:10.663 for a specific date for a hearing. Are you saying that it's been your office 1621 02:18:10.663 --> 02:18:16.033 it is experience that ICE transferred dust completely to the state authorities and 1622 02:18:16.033 --> 02:18:20.211 that defendant now is within state custody for the next year the same defendant 1623 02:18:20.211 --> 02:18:24.056 that was released and not obtained by the state. LAURA B. LASOTA: I think 1624 02:18:24.056 --> 02:18:27.544 we've seen it both case. THE COURT: That the palm there are once 1625 02:18:27.544 --> 02:18:32.033 parents if bag the ICE best and then in some instances you've seen that they stay 1626 02:18:32.033 --> 02:18:35.662 in ICE custody and -- I'm just trying the gets arsenals of how -- because it 1627 02:18:35.662 --> 02:18:39.404 seems order that if it's at the beginning of the proceedings and there's one 1628 02:18:39.404 --> 02:18:43.795 court appearances that custody would be completely transferred over to the 1629 02:18:43.795 --> 02:18:47.707 state and trial doesn't happen forever two years. LAURA B. LASOTA: Right. 1630 02:18:47.707 --> 02:18:51.031 JUSTICE FASCIALE: I'm guessing that probably doesn't happen. LAURA B. 1631 02:18:51.031 --> 02:18:53.737 LASOTA: Again again on the language of the writ a lot of the cases that we've 1632 02:18:53.737 --> 02:18:58.565 seen success in writs the said has there. Meet guilty to something that was to 1633 02:18:58.565 --> 02:19:03.385 resolve the indicates in that sense. We haven't actually seen' \casing\case go 1634 02:19:03.385 --> 02:19:08.115 beyond the trial steering the sort. JUSTICE WAINER APTER: Make sure you 1635 02:19:08.115 --> 02:19:13.511 understood -- what -- based on justice parking lot question the state has not 1636 02:19:13.511 --> 02:19:18.239 obtained the person that how could the state can obtaining the person if it's 1637 02:19:18.239 --> 02:19:21.745 not parent pursuant to. LAURA B. LASOTA: It would be the writ you mean 1638 02:19:21.745 --> 02:19:24.938 necessity assist ICE detention facility. JUSTICE WAINER APTER: Correct then 1639 02:19:24.938 --> 02:19:29.428 the writ to in definitely not just for the one day, where they're happening, 1640 02:19:29.428 --> 02:19:34.220 but as just parking lot said for one or two years. LAURA B. LASOTA: I 1641 02:19:34.220 --> 02:19:39.328 think I guess I became ()we've had whether it's one day, you know few months 1642 02:19:39.328 --> 02:19:45.222 what are it is been mentioned results and that's really just our experience. 1643 02:19:45.222 --> 02:19:47.658 CHIEF JUSTICE RABNER: I just want to he wet to make behind bocci \brake\break -- 1644 02:19:47.658 --> 02:19:53.710 lunch. JUSTICE HOFFMAN: Just picking be exactly where miss Wainer Apter 1645 02:19:53.710 --> 02:20:01.023 as biking Aspergum was. Are you saying there is a situation where the state 1646 02:20:01.023 --> 02:20:09.529 has made a determination that a defendant would not be detained but then upon 1647 02:20:09.529 --> 02:20:16.184 acceptance of a writ, takes over custody and does then continue to obtain that 1648 02:20:16.184 --> 02:20:19.753 defendant having taken over custody from ICE, even after having initially made 1649 02:20:19.753 --> 02:20:25.374 a determination that that defendant is not containable is that -- LAURA B. 1650 02:20:25.374 --> 02:20:30.994 LASOTA: So me understanding is that the writ authorization the custody in the 1651 02:20:30.994 --> 02:20:36.171 state jail or county jail, for the pend cease of whatever the writ is. And we haven't 1652 02:20:36.171 --> 02:20:41.319 had a case that's gone to trial so I can't represent to this court whether 1653 02:20:41.319 --> 02:20:44.819 somebody else been held for two years for all these pretrial medication also 1654 02:20:44.819 --> 02:20:50.966 but we've had cases where the writ as successful to bring the person over, and then 1655 02:20:50.966 --> 02:20:53.598 eventually they had resolve if case via apply. JUSTICE HOFFMAN: In that 1656 02:20:53.598 --> 02:21:03.468 sitting, that person would only be being detained because of ICE's custody 1657 02:21:03.468 --> 02:21:08.974 wouldn't that be elopes care problem that person he owe state would only be then 1658 02:21:08.974 --> 02:21:18.238 maintaining a detention of that person because that person had been detained by 1659 02:21:18.238 --> 02:21:24.839 ICE. I can't say I'm not sure if I follow that logic. I think. JUSTICE 1660 02:21:24.839 --> 02:21:27.688 HOFFMAN: Lopez Carrera says I cannot obtain right? LAURA B. LASOTA: Based 1661 02:21:27.688 --> 02:21:31.025 oh immigration right. JUSTICE HOFFMAN: In that situation the state 1662 02:21:31.025 --> 02:21:35.311 may have initially determined the this defendant is not containable ICE today's 1663 02:21:35.311 --> 02:21:40.296 the defendant state issues a writ. And then state chooses to obtain the person. 1664 02:21:40.296 --> 02:21:45.832 As per the writ. Wouldn't we end up being sort of a circle around to a situation 1665 02:21:45.832 --> 02:21:52.754 where the state is then obtaining somebody only for purposes of immigration. 1666 02:21:52.754 --> 02:21:57.506 LAURA B. LASOTA: I think the detention is for the progression of the case. 1667 02:21:57.506 --> 02:22:04.388 Oh. The same scenario then could apply to someone has state D-O-C dust halls 1668 02:22:04.388 --> 02:22:07.420 the pending criminal under arrest state does no detention motion, under those 1669 02:22:07.420 --> 02:22:11.913 circumstances. So theoretic help that individuals released even though there in 1670 02:22:11.913 --> 02:22:17.287 state D-O-C custody and in order to get an individual from state D-O-C custody 1671 02:22:17.287 --> 02:22:21.679 to the trial court a writ has to be issued. To have that temporary custody 1672 02:22:21.679 --> 02:22:25.098 to do that hearing. So I think. JUSTICE WAINER APTER: Isn't that are a day 1673 02:22:25.098 --> 02:22:28.743 than with Weaver won fused about why would that authorization the state the obtain 1674 02:22:28.743 --> 02:22:32.340 debtor a year if they Canadian under \a\your\you're C-J-R AI. LAURA 1675 02:22:32.340 --> 02:22:36.705 B. LASOTA: I think the language I did writ and the of course the amenable of the 1676 02:22:36.705 --> 02:22:40.478 detention center as the weather they'll honor' writ that are long. 1677 02:22:40.478 --> 02:22:44.688 JUSTICE NORIEGA: Very quick question. The examples your giving are those Brits 1678 02:22:44.688 --> 02:22:49.048 to local ICE or out of state ICE. LAURA B. LASOTA: We've -- had where is 1679 02:22:49.048 --> 02:22:52.278 motion me shin in Weaver where is to Delaney hall milk I remember any denied 1680 02:22:52.278 --> 02:22:57.781 a almost because a majority of our New Jersey detains are in those local owe 1681 02:22:57.781 --> 02:23:02.542 I hope especially there are handful of that are out of state. You think we 1682 02:23:02.542 --> 02:23:07.860 have had some success at least with writ fog or virtually pains from farther 1683 02:23:07.860 --> 02:23:09.220 institutions. JUSTICE NORIEGA: Thank you. CHIEF JUSTICE RABNER: Any 1684 02:23:09.220 --> 02:23:14.131 other questions anyone? Thank you. LAURA B. LASOTA: I want the ad one 1685 02:23:14.131 --> 02:23:17.779 thing if I may. With regard to the chiefs question with regard to what other 1686 02:23:17.779 --> 02:23:24.695 jurisdiction also are doing, there is some guidance from the New York -- there give 1687 02:23:24.695 --> 02:23:27.857 consequent of their administrative office of the reports that they are not 1688 02:23:27.857 --> 02:23:34.067 issuing bench warrant in these types of cases. And they are really requesting that 1689 02:23:34.067 --> 02:23:37.356 prosecutors utilize what tools they have especially earlier the appearance 1690 02:23:37.356 --> 02:23:40.438 I recall yes or no the prolls with regards to writs so I did want the address. 1691 02:23:40.438 --> 02:23:43.293 CHIEF JUSTICE RABNER: There are tucket goes virtual trials. LAURA B. 1692 02:23:43.293 --> 02:23:48.399 LASOTA: That I'm not aware of. CHIEF JUSTICE RABNER: Thank you counsel. 1693 02:23:48.399 --> 02:24:15.526 (. JUSTICE NORIEGA: (. MOLLY K.C. LINHORST: ,) (at. MOLLY K.C. 1694 02:24:15.526 --> 02:24:17.168 LINHORST: May it please the court. Liege I said I know any interest of time 1695 02:24:17.168 --> 02:24:23.977 I hope happy to respond to questions. I'll just start by saying obviously one of 1696 02:24:23.977 --> 02:24:28.250 the huge considerations in this case is the fact that we have these sometimes 1697 02:24:28.250 --> 02:24:32.539 conflicting systems. That federal immigration, and the state criminal 1698 02:24:32.539 --> 02:24:35.599 legal system and that's just a reality that we have the contend about and clearly 1699 02:24:35.599 --> 02:24:40.800 it is stream help messy. But the fact that we have these sometimes conflicting 1700 02:24:40.800 --> 02:24:46.740 systems, cannot mean that defendants are denied their constitution Al right. 1701 02:24:46.740 --> 02:24:53.033 Including the right to a speedy trial. As you know, our brief is focused on how 1702 02:24:53.033 --> 02:24:59.337 this case and cases similar to it implication speedy trial rights. And 1703 02:24:59.337 --> 02:25:03.736 the practice of issuing bench warrant when defendants are detained or deported. 1704 02:25:03.736 --> 02:25:09.689 Does raise those concerns. It effectively pauses criminal provision as he we've 1705 02:25:09.689 --> 02:25:14.956 discussed, it removes from the calendar, as justice far noted that there can be 1706 02:25:14.956 --> 02:25:21.340 motions to re calendar. But there's also prejudice that can put the bench warrant 1707 02:25:21.340 --> 02:25:25.469 specifically in people's immigration cases. That I think is important to declined 1708 02:25:25.469 --> 02:25:29.791 always we are thinking go about the roam that bench warrant, and I should play. 1709 02:25:29.791 --> 02:25:36.073 Specifically and this was the case probably I believe for Mr. Reyes-Rodriguez 1710 02:25:36.073 --> 02:25:40.252 but I have seen the or folks that, when folks do have bench warrant on their 1711 02:25:40.252 --> 02:25:45.393 records, and they go before an immigration judge to get out on bond because 1712 02:25:45.393 --> 02:25:50.667 obviously they want to be out of detention but also they want to be able to to have 1713 02:25:50.667 --> 02:25:54.768 a rebut denies if the criminal proceedings also. JUSTICE WAINER APTER: 1714 02:25:54.768 --> 02:25:58.870 But therefore wasn't was only issued as of he. MOLLY K.C. LINHORST: In 1715 02:25:58.870 --> 02:26:02.810 this case question there was a earlier one inning abdominal I entirely. 1716 02:26:02.810 --> 02:26:05.922 JUSTICE WAINER APTER: I recall one miss Lord side was a 2022. And he was deposited 1717 02:26:05.922 --> 02:26:11.625 in November of 2021 I think. MOLLY K.C. LINHORST: So you know note 1718 02:26:11.625 --> 02:26:15.566 there is a difference in terms of prejudice pre deportation and post deportation. 1719 02:26:15.566 --> 02:26:19.663 If we are talking about the affect on bond. If we are talking about the affect 1720 02:26:19.663 --> 02:26:24.626 of for example like Mr. Reyes-Rodriguez, could have received a waiver but at 1721 02:26:24.626 --> 02:26:30.157 that's discretionary bench warrant open a cases both impact that sort of 1722 02:26:30.157 --> 02:26:33.976 discretionary analysis. But even. JUSTICE PATTERSON: Bench warrant 1723 02:26:33.976 --> 02:26:37.232 and open cases did you say. MOLLY K.C. LINHORST: The there that that 1724 02:26:37.232 --> 02:26:40.028 are will the charges unary cervical after the fact this. JUSTICE PATTERSON: 1725 02:26:40.028 --> 02:26:44.489 Those two thinner any and -- in terms of how this case place out right. 1726 02:26:44.489 --> 02:26:47.238 MOLLY K.C. LINHORST: In terms of this particular case because we're talking about 1727 02:26:47.238 --> 02:26:50.671 the affect of the bench warrant post deportation. JUSTICE PATTERSON: We 1728 02:26:50.671 --> 02:26:54.068 have to resolve here as I understand it, is about the impact of the bench warrant. 1729 02:26:54.068 --> 02:27:01.127 We're not fear resolve the I just want to packet of open criminal charges on 1730 02:27:01.127 --> 02:27:05.766 immigration proceedings are we. MOLLY K.C. LINHORST: No. However, a bench 1731 02:27:05.766 --> 02:27:09.616 warrant would only exist given the open. JUSTICE PATTERSON: I understand but 1732 02:27:09.616 --> 02:27:14.218 we are not mere look at the bigger appellate court of I don't even know how 1733 02:27:14.218 --> 02:27:18.491 to a framed. MOLLY K.C. LINHORST: Yeah. JUSTICE PATTERSON: Therefore 1734 02:27:18.491 --> 02:27:22.083 that problemmable any immigration proceedings larn that is any whole other 1735 02:27:22.083 --> 02:27:24.750 can ever worms I totally under. JUSTICE PATTERSON: One that we didn't 1736 02:27:24.750 --> 02:27:28.336 water at the here to roar solve. MOLLY K.C. LINHORST: Right. JUSTICE 1737 02:27:28.336 --> 02:27:32.204 WAINER APTER: So what is the specific prejudice of the bench warrant one 1738 02:27:32.204 --> 02:27:34.838 someone has deposited. MOLLY K.C. LINHORST: I would defer to the facts 1739 02:27:34.838 --> 02:27:40.328 who are often time in the criminal legal settlements to answer this. Because of 1740 02:27:40.328 --> 02:27:43.189 however how they may or may not be able to re calendar proceedings because my 1741 02:27:43.189 --> 02:27:48.357 understand goes is that it kind of goes into the gray so where there is no 1742 02:27:48.357 --> 02:27:54.207 forward movement. The other issue would be if in the future there is some sort of 1743 02:27:54.207 --> 02:27:59.822 effort to return to to United States, and there they need you know, they need 1744 02:27:59.822 --> 02:28:06.126 an a I couldn't do indicator to air oh their side, when there are discretionary 1745 02:28:06.126 --> 02:28:09.576 factors in play, that the existence ever a bench warrant on a record could 1746 02:28:09.576 --> 02:28:14.801 play a role. JUSTICE NORIEGA: Is it really fair the task your criminal 1747 02:28:14.801 --> 02:28:18.647 justice system with asking these questions on a broad basis rather than making 1748 02:28:18.647 --> 02:28:22.396 them an individual request at a particular defendant can make under their circles? 1749 02:28:22.396 --> 02:28:26.928 So in other words, for a judge to have any make additional nation at way factor 1750 02:28:26.928 --> 02:28:32.642 of with this impact this defendants immigration case? Give me all the 1751 02:28:32.642 --> 02:28:35.482 information about their immigration case where are they in it how it's it gonna 1752 02:28:35.482 --> 02:28:40.423 I'm fact then? I'm not gonna issue it because it may impact there case. Rather 1753 02:28:40.423 --> 02:28:44.661 than a defendant is might have a I'm P on upcoming say, them file a motion 1754 02:28:44.661 --> 02:28:47.595 Tennessee vacate the airplane if the court has go. A So they can decide the 1755 02:28:47.595 --> 02:28:50.707 left it. Wouldn't that be the better course. MOLLY K.C. LINHORST: I think 1756 02:28:50.707 --> 02:28:55.791 owe/so I understand the latter point and I think that that makes a lot of accepts 1757 02:28:55.791 --> 02:28:58.978 bams whip I did don't want rights are trial judges somehow having to deal with 1758 02:28:58.978 --> 02:29:02.626 the complex immigration system and weigh assist different factors and that's 1759 02:29:02.626 --> 02:29:08.868 not their job. That's not the job we want the them to have. So it's -- to me it 1760 02:29:08.868 --> 02:29:16.113 is the concern that there is this automatic blanket practice of issuing bench 1761 02:29:16.113 --> 02:29:21.203 warrant that can cause cases to link wish. I'm not saying that's always the 1762 02:29:21.203 --> 02:29:26.599 case, they're probably a number of attorneys who are diligent and are trying 1763 02:29:26.599 --> 02:29:31.861 to get the cases before the court. But I also want to note that it is the states' 1764 02:29:31.861 --> 02:29:38.028 duty to keep the criminal prosecution going right? So given the fact that 1765 02:29:38.028 --> 02:29:43.633 it's a state duty, can we really be expecting the defendants to after a bench 1766 02:29:43.633 --> 02:29:48.542 warrant is issued, to great let me know to treat to get this case re calendared? 1767 02:29:48.542 --> 02:29:55.386 I think -- I think this can be said. That all of us understand that there 1768 02:29:55.386 --> 02:30:00.675 are definitely weaknesses to an automatic bench warrant practice. JUSTICE 1769 02:30:00.675 --> 02:30:04.826 FASCIALE: Question as to the appropriateness of the issuance of a bench warrant. 1770 02:30:04.826 --> 02:30:10.365 Other than if the state plans to extradite are there if I on other circumstances 1771 02:30:10.365 --> 02:30:15.525 when a bench warrant would be appropriate and would your answer change if the 1772 02:30:15.525 --> 02:30:19.626 bench warrant were issued slowly as a detainer. MOLLY K.C. LINHORST: So 1773 02:30:19.626 --> 02:30:25.479 the solely as a detainer question, I'm thinking about the attorney generals 1774 02:30:25.479 --> 02:30:32.345 brief and the reframe go of what is essentially a bench warrant. I as 1775 02:30:32.345 --> 02:30:35.536 I'm reading there brief, thinking through you know they're trying the come the some 1776 02:30:35.536 --> 02:30:41.202 sort of solution, recognizing what the trying to do but my concern is what will 1777 02:30:41.202 --> 02:30:46.664 the affect be? And I think -- I'm not confident in saying that a change in 1778 02:30:46.664 --> 02:30:52.036 wording will mean that this will not have the same affect in terms of prejudice 1779 02:30:52.036 --> 02:30:57.079 and immigration cases. Or in terms of slowing cases down and taking them off the 1780 02:30:57.079 --> 02:31:01.050 calendar. JUSTICE FASCIALE: Then given this answer other than if 1781 02:31:01.050 --> 02:31:05.420 the state commits to OPRA dieting, are there any other circles when a bench 1782 02:31:05.420 --> 02:31:13.644 warrant would be appropriate. MOLLY K.C. LINHORST: Trying to imagine what 1783 02:31:13.644 --> 02:31:20.870 it would look like. I think there was some discussion about rare cases in which 1784 02:31:20.870 --> 02:31:26.039 someone has been deposited the state has tried the extradite, that's not that's 1785 02:31:26.039 --> 02:31:31.951 not happening. They've taken every step they possibly can. And the defendant 1786 02:31:31.951 --> 02:31:38.314 still does not consent to appear virtually. See, that's when I think you have 1787 02:31:38.314 --> 02:31:44.911 to go back to apply the barker V bingo factor. JUSTICE FASCIALE: I think. 1788 02:31:44.911 --> 02:31:48.837 MOLLY K.C. LINHORST: Fact intense I've and so that's -- I don't feel comfortable 1789 02:31:48.837 --> 02:31:53.520 saying yes or no on any particular instance because I think we have to coach 1790 02:31:53.520 --> 02:31:56.671 speedy trial in front of a maintain that trigger point I require fact analysis. 1791 02:31:56.671 --> 02:32:00.229 JUSTICE FASCIALE: Can you give an example of when it would be appropriate 1792 02:32:00.229 --> 02:32:09.004 to dismiss assist charges as a result of the defendants failure the app virtually. 1793 02:32:09.004 --> 02:32:12.195 MOLLY K.C. LINHORST: I think if the state has failed to take any reasonable 1794 02:32:12.195 --> 02:32:15.244 steps to try to get them there in person. I do think that that is a responsibility 1795 02:32:15.244 --> 02:32:19.644 of the state because they've the duty and because here we have an important 1796 02:32:19.644 --> 02:32:26.008 constitution at right to appear in person. JUSTICE PATTERSON: You had 1797 02:32:26.008 --> 02:32:29.465 two different standard they're close sequence one as the state taken off possible 1798 02:32:29.465 --> 02:32:33.660 measures ands you said to what the possibly thousand the -- that standard of 1799 02:32:33.660 --> 02:32:42.997 be satisfied? But then you just said the state has not taken conversely, any 1800 02:32:42.997 --> 02:32:45.632 reasonable measures. So do you see what I'm. MOLLY K.C. LINHORST: I do, yes. 1801 02:32:45.632 --> 02:32:52.585 JUSTICE PATTERSON: What is it that you're -- you're the accurate lose' position 1802 02:32:52.585 --> 02:32:57.919 what the what is the obligation of the state to do with regard to the tool 1803 02:32:57.919 --> 02:33:01.443 tool kit or extradition. MOLLY K.C. LINHORST: Looking at this through 1804 02:33:01.443 --> 02:33:08.242 the lens of speedy trial, it has to be fact intensive it has to be determined by 1805 02:33:08.242 --> 02:33:14.346 the trial court what was or wasn't appropriate. And in terms of speedy 1806 02:33:14.346 --> 02:33:18.706 trial we're talking about reasonable steps. So I don't mean to say that they 1807 02:33:18.706 --> 02:33:23.691 have to exhaust every everything although I'll note that when we're talking person 1808 02:33:23.691 --> 02:33:26.304 appearances deposit extra extradition, in terms of getting someone there the turn, 1809 02:33:26.304 --> 02:33:32.466 extradition is the option that I am aware of and so I would expect them to. 1810 02:33:32.466 --> 02:33:35.315 JUSTICE FASCIALE: Writ is not gonna work Lynn no, it's a sure. I'm not 1811 02:33:35.315 --> 02:33:42.843 familiar enough with the mention there there might be mechanism that is different 1812 02:33:42.843 --> 02:33:47.005 from extradition different pain bench warrant that would work. The concern 1813 02:33:47.005 --> 02:33:51.548 would be that there isn't any sort of prejudice effect than that doesn't 1814 02:33:51.548 --> 02:33:56.758 result in criminal conveyses. Language wish? A Yes W so you're saying post deportation, 1815 02:33:56.758 --> 02:34:05.022 if the state does not want to have the indictment dismissed they have to extra died. 1816 02:34:05.022 --> 02:34:06.199 MOLLY K.C. LINHORST: They have to too reasonable. JUSTICE WAINER APTER: 1817 02:34:06.199 --> 02:34:08.933 Try. MOLLY K.C. LINHORST: Yes. JUSTICE FASCIALE: And the extradition 1818 02:34:08.933 --> 02:34:13.992 takes many, many years are you arguing that that's a speedy trial violation. 1819 02:34:13.992 --> 02:34:18.324 MOLLY K.C. LINHORST: I think that's -- again barker V get the trial court's 1820 02:34:18.324 --> 02:34:24.233 the analyze her to factors and it could be. But it's so -- it's so fact specific 1821 02:34:24.233 --> 02:34:29.293 I don't think this court needs to come up with any of those right lines I think 1822 02:34:29.293 --> 02:34:34.827 this court can insist that yeah this could result in a speedy trial concerns. 1823 02:34:34.827 --> 02:34:37.822 JUSTICE PATTERSON: Reallily talk P the -- the defendant would make to 1824 02:34:37.822 --> 02:34:44.356 -- to not consent to virtual proceedings is quite likely to lead to the dismissal 1825 02:34:44.356 --> 02:34:51.415 of charges including murder charges or -- sexual assault charges or other serious 1826 02:34:51.415 --> 02:34:57.495 charges. MOLLY K.C. LINHORST: So in theory if the barker V bingo turns 1827 02:34:57.495 --> 02:35:01.704 thought the way, yes. Pulled want to note because I think this has been lowest 1828 02:35:01.704 --> 02:35:05.511 the conversation, that when we're talking about those very zero charges, those 1829 02:35:05.511 --> 02:35:11.023 people are not gonna a Reiss the own right side right? They are there is the local 1830 02:35:11.023 --> 02:35:16.239 jills there going to be detained pretrial so will the moistly turned over the 1831 02:35:16.239 --> 02:35:22.061 ICE until the there will incarcerate () so we are unlikely I think to see those 1832 02:35:22.061 --> 02:35:27.001 circumstances. Or dozen these sorts of concerns and circumstances. Applying in 1833 02:35:27.001 --> 02:35:33.178 cases that are as serious as that. CHIEF JUSTICE RABNER: Any questions? 1834 02:35:33.178 --> 02:35:36.669 Anything else councilman. MOLLY K.C. LINHORST: No, that you know to thank 1835 02:35:36.669 --> 02:35:40.782 you very much. CHIEF JUSTICE RABNER: We will be back in about 30 minutes.,)