Opinion
DOCKET NO. A-3647-14T3
12-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH M. JIMENEZ, Defendant-Appellant.
Daggett & Kraemer, attorneys for appellant (George T. Daggett, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 41-2014. Daggett & Kraemer, attorneys for appellant (George T. Daggett, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the March 26, 2015 order entered after a trial de novo on the record finding him guilty of driving while intoxicated (DWI). He asserts a violation of his right to a speedy trial. Finding no violation, we affirm.
On August 30, 2013, defendant was issued a summons for operating a motor vehicle under the influence of drugs and alcohol, as well as for unsafe lane change and careless driving. After being transported to the Somerville barracks, defendant provided two breath samples which indicated a .21 blood alcohol content reading. The trial was delayed eleven months after requests from both parties, including one adjournment because of defense counsel's unavailability, another adjournment because defendant was on vacation, and an adjournment because defense counsel did not have discovery. Defendant claims there were also multiple adjournments as a result of the testifying officer's failure to appear for trial without a reason given for his non-appearance. A "try or dismiss" date was set for April 7, 2014, but an adjournment was granted on that date as well. The trial in the municipal court took place on July 11, 2014. On that date, the municipal court judge addressed and denied defendant's pre-trial motions, including motions to: suppress evidence, dismiss for failure to provide a speedy trial, and compel discovery of the reasons for the delay of trial.
After hearing the testimony of the arresting officer and considering the relevant evidence, the municipal court judge found defendant guilty of driving while under the influence, in violation of N.J.S.A. 39:4-50, and dismissed the other charges. Defendant was sentenced to 180 days incarceration and ordered to pay a fine of $1,000, $33 in court costs, $75 Safe Neighborhood Fund penalty, $50 Victim of Crime Compensation Board Assessment, attend 90 days of community service, 10-year New Jersey driver's license suspension, and 48 hours in the Intoxicated Driver Resource Center.
Defendant filed an appeal to the Law Division. The Law Division judge issued an order staying defendant's incarceration until the resolution of the de novo review. On March 16, 2015, the Law Division judge heard defendant's arguments, considered the record, and on March 26, 2015, issued an order denying defendant's motion to suppress, denying defendant's motion to dismiss for failure to provide a speedy trial, and finding defendant guilty of violating N.J.S.A. 39:4-50. The judge imposed the same sentence, but granted a stay pending resolution of defendant's appeal. This appeal followed.
On appeal defendant argues:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATION AND ERRED IN DENYING MOTION TO COMPEL DISCOVERY TO PROPERLY ARGUE MOTION TO DISMISS.
To determine if a speedy trial violation has occurred, we must consider four factors: "the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay." State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999); State v. Cahill, 213 N.J. 253, 258 (2013) (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). "[N]o set length of time . . . fixes the point at which delay is excessive." State v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009). In Cahill, the court dismissed a case twenty-nine months after defendant had been arrested. Cahill, supra, 213 N.J. at 259. In Farrell, the case was dismissed after the defendant waited more than 660 days for a trial. Farrell, supra, 320 N.J. Super. at 428. If the delay is over one year, it is appropriate for the court to analyze the other three factors. Cahill, supra, 213 N.J. at 265.
Considering the length of the delay, we conclude the delay was not excessive. Defendant waited eleven months from his arrest for a trial, but he requested several of the adjournments himself. The length of the delay does not come close to the delays in Farrell and Cahill, and the delay does not surpass the twelve-month mark where all of the factors must be addressed. Nevertheless, we review defendant's assertion suggesting the remaining factors were also satisfied, warranting his conviction be vacated. We disagree.
The second factor is the reason for the delay, which the government is required to identify. Cahill, supra, 213 N.J. at 266 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Initially we note, defendant requested at least two trial adjournments. Regarding the other adjournment, defendant argues he requested reasons for the trooper's non-appearance be provided to him on numerous occasions, but he never received a response. Defendant claims the court obstructed the presentation of the facts supporting his lack of speedy trial argument by failing to provide reasons for the delay.
We recognize the assertion of a right to speedy trial by a defendant is not required, but should be given strong weight when balancing the facts. State v. Fulford, 349 N.J. Super. 183, 195 (App. Div. 2002). Whether and how a defendant asserts the right to a speedy trial must be examined to determine whether the state has violated the right. Cahill, supra, 213 N.J. at 258. Here, defendant brought his speedy trial motion on July 7, 2014 and the trial was conducted on July 11, 2014, only a few days later. In that light, the prior delays occasioned by the State's witness or the reasons for the delay were resolved expeditiously.
Defendant also suggests Tsetsekas requires dismissal because of the State's repeated failures to proceed. Tsetsekas, supra, 411 N.J. Super. at 12. We are not persuaded. In Tsetsekas, every delay was due to the State being unable to proceed, unlike here where both sides requested several adjournments throughout the process. Moreover, "[e]xcept in the most egregious of cases . . . the absence of any explanation for the delay cannot alone justify a decision." Fulford, supra, 349 N.J. Super. at 195 (citing State v. Szima, 70 N.J. 196, 201 (1976)). Defendant's inability to learn the reasons for the trooper's adjournments is irrelevant.
Prejudice to defendant is the last factor we consider. Prejudice can arise in many ways, including when defendant's ability to defend charges is affected, State v. Smith, 131 N.J. Super. 354, 368 (App. Div. 1974), or "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Farrell, supra, 320 N.J. Super. at 446 (quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)).
Defendant has shown no prejudice resulting from the delay. Defendant claims the anxiety he faced while waiting for trial amounted to prejudice because he had to wait for nine hours in court due to adjournments and because of the consequences he faced from the charges. However, defendant received a trial merely days after raising a speedy trial violation. Defendant has not presented any evidence that his ability to defend the case was impaired, and the inconveniences and anxiety he faced do not rise above the usual circumstances surrounding a DWI trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION