Opinion
DOCKET NO. A-4950-11T2
02-21-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ROGER MAURO, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). Craig, Annin & Baxter, L.L.P., attorneys for respondent (Jeffrey S. Craig, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 33-11.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Craig, Annin & Baxter, L.L.P., attorneys for respondent (Jeffrey S. Craig, on the brief). PER CURIAM
The State of New Jersey appeals from the Law Division's order of May 31, 2012, reversing the decision of the municipal court, and dismissing several charges against defendant based on its finding that defendant's right to a speedy trial had been violated. Our review of the record does not reveal a constitutional violation. We reverse and remand to the municipal court for trial on the remaining charges.
I.
On November 25, 2006, defendant began drinking beer at 4:00 p.m. and continued for three hours. At about 7:00 p.m., he got into his pick-up and drove to a friend's home to drop off cigarettes. About twenty minutes later, while driving home, defendant struck some landscape barriers bordering his neighbor Tony Novak's home. After hitting the barriers, defendant continued driving. Novak's fourteen-year-old son was playing outside with two of his friends when he saw defendant's pick-up hit the barriers. Novak's son ran inside to tell his father. Novak came out and while he was inspecting the damage, defendant turned his truck around and headed back in Novak's direction. Novak held his hand up to signal defendant to stop, but defendant sped up and turned his truck toward Novak. After yelling something at Novak, defendant struck him with his truck and knocked him to the ground. Defendant then drove away and parked his truck in his driveway a short distance up the road.
The police were called and Trooper M.J. Szustowicz responded along with the local rescue service. Novak was taken to the hospital and Szustowicz interviewed several witnesses at the scene, including Novak's son and his friends. All three boys identified defendant's truck, which was still parked in his driveway.
Szustowicz went to defendant's home and asked him to step outside. After smelling alcohol on his breath and noting his slurred speech, it was immediately apparent to the trooper that defendant was intoxicated. Defendant admitted he had been drinking beer for three hours but could not remember how many he drank. When the trooper asked him if he hit anything earlier, defendant responded, "I don't think I hit anything that would stand out or was out of the norm." Defendant was unable to perform several balance tests and refused an Alcotest examination.
Trooper Szustowicz arrested defendant and charged him with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2). Defendant was also issued several motor vehicle summonses (the Title 39 violations), including reckless driving, N.J.S.A. 39:4-96; driving while intoxicated (DWI), N.J.S.A. 39:4-50; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; operating a motor vehicle as an uninsured motorist, N.J.S.A. 39:6B-2; operating an unregistered vehicle, N.J.S.A. 39:3-4; failure to submit a breath sample, N.J.S.A. 39:4-50.2; and failure to submit proof of purchase of a motor vehicle, N.J.S.A. 39:10-11.
When Novak was later interviewed, he claimed defendant turned the truck in his direction and intentionally struck him. Further investigation by Szustowicz revealed several reported incidents between Novak and defendant. Novak reported in April 2006, that defendant ripped shrubs from his property; in May 2006, he claimed defendant removed a "No Turn Around" sign from his property; and in July 2006, he reported that defendant tipped over his boat and trailer.
As the assault by auto charge was an indictable offense and the DWI charge was a potential aggravating factor, those charges were forwarded to the county prosecutor. The summonses were returnable December 6, 2006, in Downe Township Municipal Court. On November 29, 2006, defendant's counsel sent a letter to the municipal court clerk requesting that a plea of not guilty be entered on defendant's behalf and that he be notified if any of the charges were returned to municipal court by the county prosecutor.
On October 17, 2007, a Cumberland County grand jury returned a one-count indictment, charging defendant with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(a). At his arraignment on November 26, 2007, defendant applied for pre- trial intervention (PTI). Defendant signed a form acknowledging several special conditions of PTI supervision, including paying $39,978 in restitution, submitting to drug/alcohol testing, and being gainfully employed during his enrollment in the program. Defendant also acknowledged that the "motor vehicle tickets [would] be remanded to municipal court."
Defendant's first application for PTI was rejected on December 5, 2007 as the result of two 1984 drug convictions. On December 7, 2007, defendant's counsel sent a letter to the Criminal Division Manager seeking reconsideration. The court scheduled a status conference on the indictment for February 11, 2008. Defendant's counsel sought a postponement due to a scheduling conflict and the matter was adjourned until March 10, 2008.
On March 21, 2008, defendant filed a motion seeking to compel his admission into PTI. On April 4, 2008, the motion judge entered an order admitting defendant into PTI. The order provided:
For reasons stated on the record, the defendant is admitted into the Pretrial Intervention Program, subject to the usual conditions. Defendant has waived double jeopardy as to the motor vehicle tickets.
One of the conditions for defendant's admission into PTI was payment of $39,978 in restitution to Tony Novak, but on April 4, 2008, defendant refused to pay that amount. At a status conference on May 16, 2008, the motion judge reduced the restitution to $900, but defendant failed to pay that amount as well.
On March 25, 2009, defendant's insurance company requested information as to the status of defendant's criminal case from court staff. It was then determined that the order admitting defendant into PTI had been placed in defendant's criminal file but was never forwarded to Probation.
On April 27, 2009, defendant was admitted into PTI for a period of twelve months. The conditions of defendant's enrollment included reporting to Probation, submitting to drug testing and a substance abuse evaluation, payment of $125 in fines and the reduced amount of restitution, and providing proof of employment. Defendant failed to report for his initial PTI appointment on June 17, 2009, and a subsequent appointment on July 9, 2009. Notices sent to the address provided by defendant were returned to Probation marked "not deliverable as addressed-unable to forward."
On July 9, 2009, Probation sought to terminate defendant from PTI for the missed appointments, for his failure to pay the fines or the reduced amount of restitution, for his failure to provide proof of employment and his failure to undergo a substance abuse evaluation.
Defendant was charged with violating the conditions of PTI and a hearing was held on October 2, 2009. Defendant failed to appear and was terminated from PTI. The indictment was placed on the active court calendar and a status conference was scheduled for October 26, 2009. Defendant again failed to appear, and a warrant was issued for his arrest.
On March 22, 2010, defendant was arrested on the warrant and on March 24, 2010, an order was entered readmitting defendant into PTI. The order provided that defendant "shall satisfactorily complete all balances of his PTI obligations." As no term was specified in the order, another order was entered on August 9, 2010, setting the PTI term at two years retroactive to the date of defendant's acceptance into the PTI program.
On September 23, 2010, the indictment was dismissed. The Title 39 matters were returned to municipal court, but not scheduled for trial until October 4, 2011. Defendant moved to dismiss the Title 39 matters, claiming a violation of his right to a speedy trial. On November 9, 2011, the municipal court judge heard oral argument and denied the motion. Defendant appealed to the Law Division. On May 18, 2012, the Law Division judge heard oral argument, and on May 31, 2012, the judge reversed the decision of the municipal court and dismissed all charges. After the State filed a notice of appeal, the judge filed an amplified opinion pursuant to Rule 2:5-1(b). The State raises the following issues for our consideration:
POINT I:
THE LAW DIVISION FAILED TO APPLY THE CORRECT LEGAL ANALYSIS TO THE DEFENDANT'S "SPEEDY TRIAL" MOTION.
A. THE LAW DIVISION MISAPPLIED THE CONCEPT OF PREJUDICE WHEN CONSIDERING THE BARKER/SZIMA FACTORS.
B. THE LAW DIVISION FAILED TO PROPERLY ASSESS THE NATURE OF THE DELAY.
C. THE DEFENDANT DID NOT ASSERT HIS RIGHT UNTIL FILING THE MOTION IN MUNICIPAL COURT.
D. WHILE THE DELAY WAS SIGNIFICANT, IT WAS NOT SOLELY ACCOUNTABLE TO THE STATE.
II.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). As a matter of fundamental fairness, excessive delay in completing a prosecution may qualify as a violation of a defendant's constitutional right to a speedy trial. State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999) (citing State v. Gallegan, 117 N.J. 345, 354-55 (1989)). "'A defendant has no duty to bring himself to trial; the State has that duty[.]'" State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977) (quoting Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115).
Because the facts relevant to the delay in this matter are undisputed, and the Law Division judge was not required to make any credibility determinations, the issue presented is purely a question of law. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).
In Barker, supra, the United States Supreme Court announced a four-part test to determine when a delay infringes upon a defendant's due process rights. 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. The factors to be considered are: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how defendant has asserted his right to a speedy trial; and (4) the prejudice defendant incurred as a result of the delay. Id. at 530-33, 92 S. Ct. at 2192-93, 33 L. Ed. at 117-19. The test is flexible in its application and the court applying the test may balance additional factors it deems appropriate as well. Ibid.
In Szima, supra, New Jersey's Supreme Court adopted the Barker test. 70 N.J. at 200-01. These same standards also have been applied to municipal prosecutions. State v. Berezansky, 386 N.J. Super. 84, 90 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); Farrell, supra, 320 N.J. Super. at 446.
The first Barker factor assesses the length of delay. Defendant was arrested on November 25, 2006, when the Title 39 charges were filed. He was indicted on October 17, 2007. The indictment was dismissed on September 23, 2010, and the Title 39 matters were returned to municipal court and scheduled for trial on October 4, 2011. The length of time from defendant's arrest to the trial date was, therefore, approximately five years.
The second Barker factor "examines the length of a delay in light of the culpability of the parties." State v. Tsetsekas, 411 N.J. Super. 1, 12 (App. Div. 2009). While we agree with the Law Division judge that the period from defendant's arrest on November 25, 2006, until his indictment on October 17, 2007, is chargeable to the State, we do not find this delay unreasonable. See Szima, supra, 70 N.J. at 202 (twenty-two months between arrest and indictment did not constitute a denial of the right to a speedy trial).
The Law Division judge concluded that the entire period from defendant's arraignment on November 26, 2007, until his missed PTI appointment on June 17, 2009, is also attributable to the State. We disagree.
During this period, defendant was seeking PTI. His first application was rejected due to his prior drug convictions. Although defendant sent a letter seeking reconsideration of this decision, he did not file a formal motion for three months. Meanwhile, the criminal matter was promptly placed back on the calendar and a status conference was scheduled. That conference was postponed for one month at the request of defendant's counsel. Defendant then filed a motion to be admitted into PTI which was granted on April 4, 2008. None of this delay can be attributed to the State.
After defendant was accepted into PTI, he refused to pay the original restitution figure, which was a condition of his acceptance. Even after the restitution obligation was reduced to a fraction of the original amount on May 16, 2008, defendant did not comply with that provision. This delay is also attributable solely to defendant. See Gallegan, supra, 117 N.J. at 355.
The next period of delay was from April 4, 2008 through April 27, 2009. The order admitting defendant into PTI was placed in the court file but not forwarded to Probation. This oversight was remedied on April 27, 2009, when another order was entered admitting defendant into PTI.
In Barker, the Court distinguished between deliberate and negligent delay. It held the former is weighed more heavily in favor of dismissal of the prosecution than delay attributable to the State's negligence or the court procedures and calendars. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. While this eleven-month delay was attributable to the State, the record supports a conclusion that the delay was negligent rather than deliberate.
After defendant was given a second chance at PTI, he missed appointments in June and July 2009. As a result, Probation moved to terminate him from the program. He then failed to appear for the termination hearing and a subsequent status conference, resulting in the issuance of a bench warrant. After his arrest on the warrant, defendant was given a third opportunity for PTI on March 24, 2010. After his successful completion of PTI, the indictment was dismissed. We find no basis to attribute any of the delay from April 2009 until the dismissal of the indictment to the State.
In sum, while the eleven-month period from April 4, 2008, until April 27, 2009, is attributable to the State, there is no evidence before us that this delay was deliberate. Conversely, defendant must bear responsibility for the significant periods of delay caused by his efforts to gain admission to PTI and his repeated failures to comply with conditions of the program.
The third Barker factor considers whether a defendant asserted his right to a speedy trial. Defendant claims that he asserted his right to a speedy trial at his arraignment on the indictment. The Law Division judge found that this factor did not weigh in defendant's favor, but concluded that "the arraignment transcript is unavailable due to the passage of time which is largely attributable to and unexplained by the State." The record is devoid of proof that any efforts were made to obtain the transcript or why it was not available.
At oral argument before the Law Division judge, defendant's counsel suggested that defendant asserted his speedy trial rights at the municipal level by letter addressed to the municipal court. Although counsel did not have access to the letter at that time, the letter to the municipal court, dated November 29, 2006, has been provided to us. It seeks only to enter a not-guilty plea and makes no reference to speedy trial. The record therefore fails to support defendant's contention that he made a timely assertion of his right to a speedy trial either before the municipal court or the Law Division.
The fourth Barker factor examines prejudice defendant suffered as a result of the delay. During oral argument before the Law Division, defendant's counsel explained that since his arrest, defendant sold the marina where he had been living and moved in with his sick father. He began to work as a carpenter and needed his license to commute to work and to care for his father. The Law Division judge found these facts sufficient to satisfy the fourth Barker factor. Again, we disagree.
"Prejudice, of course, should be assessed in the light of the interests of defendants[,] which the speedy trial right was designed to protect." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Barker identified three such interests:
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
[Ibid. (footnote omitted).]
Here, there was no oppressive pretrial incarceration and defendant makes no claim that the delay has in any way affected his ability to defend on the merits, the most important form of prejudice articulated in Barker. It must also be noted that defendant retained his driving privileges throughout the pendency of this litigation, satisfactorily completed PTI and, as a result, achieved dismissal of the indictable charge during the period of delay. These same three factors were present in State v. Fulford, 349 N.J. Super. 183 (App. Div. 2002), where we determined that any claim of prejudice must be balanced with benefits that may have accrued to a defendant as a result of the delay. Id. at 195. In Fulford, we noted that the type of "personal inconveniences and possible financial losses" that defendant asserts here, "are almost always associated with driving suspensions no matter when they occur. It is always inconvenient to lose one's license." Ibid. When balanced against the benefits he received during the delay, this factor does not weigh in defendant's favor.
Since defendant has failed to demonstrate prejudice or a timely demand for a speedy trial, we examine the Barker factors relating to the length of and reasons for the delay. In contrast to the post-indictment delay, which was largely attributable to defendant's pursuit of PTI, the thirteen-month delay from dismissal of the indictment to the setting of the trial date for the Title 39 charges in municipal court was chargeable to the State. While we find this delay to be significant, we must balance that delay with defendant's failure to demonstrate prejudice or establish that he asserted his right to a speedy trial at any stage of these proceedings. See Szima,supra, 70 N.J. at 201. "Except in the most egregious of cases, the length of the delay and the absence of any explanation for the delay cannot alone justify a decision." Fulford, supra, 349 N.J. Super. at 195. "Besides the prosecutor's conduct, we must also weigh in the balance defendant's conduct and the impact of the delay on him." Ibid.
We also note that the Supreme Court suggested that some of the difficulties in concluding municipal court cases with appropriate dispatch arise from "an unavoidable tension between our current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases." Gallegan, supra, 117 N.J. at 347. A reasonable amount of time must be allowed for the transfer back to municipal court. See State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983) (eight-month delay not unreasonable where a significant portion could be "reasonably explained and justified" by a transfer between municipal courts).
"The drastic sanction of dismissal should be imposed only sparingly." Georgis v. Scarpa, 226 N.J. Super. 244, 250 (App. Div. 1988) (citing Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). Considering all of the Barker factors along with the serious nature of the charges defendant is facing, the ultimate sanction of dismissal should not result here.
Reversed and remanded to the municipal court for action consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Szima, 70 N.J. 196, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).