Voluntary Jury Waiver and Those Incarcerated During COVID-19

State v. Shtabnoy

Appellate Docket No.: A-1716-19

Decided July 8, 2021

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether a defendant’s conviction from a bench trial was a result of an improper jury waiver.

In State v. Shtabnoy, on February 5, 2019, a fourteen-year-old girl called 9-1-1 to report that a man had followed her to her home and was “trying to get in.” A responding police officer found defendant walking in the neighborhood. Under questioning by the police officer, defendant eventually stated that he had followed the girl, thinking that he knew her. Defendant also acknowledged that he had gone up to the door of the girl’s home and knocked on the door. Later, defendant explained he had left when the girl did not answer the door.

The police officer ran a background check and learned that defendant had two outstanding arrest warrants for failure to appear in municipal court. The officer arrested defendant and placed him in handcuffs. According to the officer, defendant resisted being placed in the police car.  Defendant Vitaliy Shtabnoy was charged with fourth-degree attempted criminal trespass, N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:18-3(a), and disorderly persons obstruction, N.J.S.A. 2C:29-1(a).

The State moved to detain defendant pretrial under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26. Defendant did not have any prior indictable convictions, but he did have a disorderly persons conviction for possession of marijuana and a conviction for a violation of a local ordinance. The trial court granted the State’s application to detain defendant, citing “the seriousness of the underlying offense” and “defendant’s apparent mental condition.” Although referencing defendant’s “mental condition,” the trial court did not order a psychological or psychiatric evaluation of defendant.

In May 2019, defendant was indicted for fourth-degree attempted criminal trespass. On July 29, 2019, nearly six months into his detention, defendant moved to reopen his detention hearing. The trial court denied the motion.

On August 26, 2019, defendant and his counsel appeared for a pretrial conference before a different judge. During that conference, there was a discussion concerning when the matter would proceed to trial. Defense counsel stated that he wanted to have his client evaluated by a psychiatrist, and that evaluation was scheduled for September 11, 2019. Defense counsel also emphasized that defendant was anxious to proceed to trial as soon as possible and he would be willing to proceed to trial without the psychiatric evaluation.

The trial judge pointed out that defendant had already served more time in pretrial detention than he was likely to be sentenced to serve if convicted. The judge also stated that a jury trial would probably not proceed until at least September 30, 2019. The trial judge then stated that if defendant was willing to waive a jury trial, the matter could proceed to trial the following week on September 3, 2019.

At the day of trial, there were questions to defendant about a willingness to waive the jury trial, but no questions or findings regarding his competence or his knowing and voluntary waiver. Defendant did not submit a written jury-waiver form. The judge found that the State had established defendant’s guilt of attempted criminal trespass beyond a reasonable doubt. The trial judge also found that defendant was guilty of obstruction because he resisted being placed in the police car.

Having found defendant guilty, the court released defendant on September 4, 2019. On November 21, 2019, defendant was sentenced to six months of incarceration on the attempted-criminal-trespass conviction. He was also sentenced to a concurrent ten days of imprisonment on the obstruction charge. Because defendant had already served 212 days in jail, defendant’s sentence was deemed to have already been served.

Defendant appealed the conviction and the Appellate Division found that the failure to submit a written jury-waiver and failure to properly question defendant as to his voluntary, knowing, and competent waiver must result in a reversal of defendant’s conviction.

This case is important for those incarcerated during COVID-19. Jury trial were put on hold for a long time as a result of the pandemic. Many incarcerated inmates may feel the urge to seek a bench trial instead of a jury trial. In order for this to occur, the court must make a finding that they are waiving their right to a jury knowingly, voluntary, and with competence. Otherwise the waiver should not stand.  One of the questions is the urge to be released from incarceration, which should not be the sole driving force for a request to waive a jury trial.

If you or someone you know have been charged with any indictable offense or disorderly persons, contact the experienced attorney at Hark & Hark to ensure you are adequately defended.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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