PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-14-11.

Scott A. Gorman argued the cause for appellant.

Elizabeth A. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Joseph L. Morabito appeals from his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50; failure to maintain a lane, N.J.S.A. 39:4-88b; and failure to exhibit documents, N.J.S.A. 39:3-29a. Defendant argues that the State violated his constitutional right to a speedy trial. We disagree and affirm.

In the late evening of January 15, 2010, a Franklin Lakes patrolman stopped defendant's motor vehicle and, suspecting defendant may have been intoxicated, transported defendant to the police department for breath samples. Because the Franklin Lakes Police Department's Alcotest malfunctioned, the patrolman transported defendant to the Wyckoff Police Department, where the Alcotest operated properly. On January 16, 2010, the patrolman arrested defendant and charged him with the offenses.

The Borough of Franklin Lakes lacked a permanent municipal court judge between January 1, 2010 and April 1, 2010, at which point Francis J. Leddy, Jr., became the judge. On January 21, 2010, defendant requested discovery from the municipal prosecutor for, among other things, Alcotest data downloads. On April 8, 2010, defendant appeared in court to set a date for motions and trial. On April 22, 2010, defendant moved to compel discovery. Judge Leddy then ordered the prosecutor to produce the discovery within fifteen days. By letter dated May 6, 2010, the prosecutor advised defendant that the State was unable to provide the materials until mid-May because Franklin Lakes personnel needed more time to get the test results from the Wyckoff Police Department. Defendant agreed to extend the deadline to June 1, 2010, and the prosecutor produced the discovery.

Trial was initially scheduled for October 20, 2010; however, the judge adjourned the date because the State was unable to produce one of its witnesses. On November 8, 2010, defendant moved for the first time to dismiss his charges contending that the State violated his constitutional right to a speedy trial, U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Defendant also moved to suppress the Alcohol Influence Report (AIR) on grounds that officers should have delivered the AIR at the time of arrest and that officers used an incorrect temperature probe; and he also moved to dismiss on grounds that the police lacked probable cause to arrest him. On November 16, 2010, defendant and the prosecutor were ready to proceed in municipal court. Both parties agreed, however, to an adjournment to brief an issue pertaining to the AIR.

On December 14, 2010, Judge Leddy conducted oral argument and denied defendant's speedy trial motion and his motion to suppress the AIR for failure to deliver the AIR at the time of arrest. Because defendant's expert was absent, the judge adjourned argument on the probable cause and incorrect temperature probe issues.

On March 8, 2011, Judge Leddy conducted oral argument on defendant's adjourned motion to suppress the AIR and his request to reconsider the speedy trial motion to dismiss. The judge denied the reconsideration motion and rejected defendant's contention that officers used a proper temperature probe. Because the State's subpoenaed expert witness was unavailable, the judge adjourned argument on defendant's contention that the State failed to list the serial numbers and probe values of the temperature probes. On March 29, 2011, the judge denied defendant's motion to suppress the AIR and proceeded to try the case.

Judge Leddy dismissed the reckless driving charge, and found defendant guilty of DWI, failure to maintain a lane, and failure to exhibit documents. The judge sentenced defendant to the appropriate fines and penalties, imposed a two-year driver's license suspension, a one-year ignition interlock device, and two days in an intoxicated driver resource center program. Defendant appealed to the Law Division and contended that Judge Leddy erred by denying his speedy trial motion.

On October 4, 2011, Judge Edward A. Jerejian, J.S.C., conducted a trial de novo, issued a twelve-page written opinion, and applied the four speedy trial balancing factors enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), see also State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999) (applying Barker factors to driving under influence of intoxicants case). Judge Jerejian denied the speedy trial motion and sentenced defendant to the same fines and penalties imposed by Judge Leddy. This appeal followed.

On appeal, defendant raises the following point:

THE LAW DIVISION ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS BECAUSE DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED WHEN HE TOOK AFFIRMATIVE STEPS TO BRING HIS MATTER TO TRIAL, BUT DUE TO A COMBINATION OF FACTORS, NONE OF WHICH ARE ATTRIBUTABLE TO DEFENDANT, HIS MATTER DID NOT PROCEED TO TRIAL UNTIL OVER FOURTEEN MONTHS FROM THE DATE OF THE ALLEGED OFFENSE.

A trial court's finding whether a defendant was denied the right to a speedy trial should not be overturned unless it is "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977); see also State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009). This standard is highly deferential to the trier of fact. In other words, we will only reverse the decision below if it is shown to be so erroneous that no reasonable analysis could have produced it. 40 New Jersey Practice, Appellate Practice and Procedure § 4.5 (Edward A. Zunz, Jr. & Edward F. Chociey, Jr.) (rev. 2d ed. 2011).

A defendant has a constitutional right to a speedy trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The New Jersey Supreme Court has held that a court must evaluate the following factors in determining whether a defendant's right to a speedy trial has been violated:

(1) "length of the delay," (2) "the reasons for the delay," (3) the "defendant's assertion of [the] right," and (4) "prejudice to [the] defendant caused by the delay."
[State v. Gallegan, 117 N.J. 345, 355 (1989) (citing Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2191, 33 L. Ed. 2d at 117).

I.

A court shall engage in a speedy trial inquiry when the delay is not just "'ordinary,'" but "'presumptively prejudicial.'" State v. Douglas, 322 N.J. Super. 156, 170 (App. Div.) (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520, 528 (1992)), certif. denied, 162 N.J. 197 (1999). "There is no set length of time that fixes the point at which delay is excessive." State v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009) (holding that the State violated the defendant's right to a speedy trial). In 1984, the New Jersey Supreme Court issued a directive that municipal courts should attempt to dispose of DWI cases within sixty days. Farrell, supra, 320 N.J. Super. at 446-47.

Our courts, however, "have been loath to sponsor the more severe sanction of dismissal because the demands of justice require adjudications on the merits to the greatest extent possible and because of concerns for the integrity of our statutory scheme governing the operation of motor vehicles." Id. at 447 (citations omitted); see State v. Fulford, 349 N.J. Super. 183, 195 (App. Div. 2002) (upholding denial of defendant's speedy trial motion despite thirty-two month delay attributable to State where delay benefited defendant by, among other things, allowing him to retain his driver's license); State v. Prickett, 240 N.J. Super. 139, 141, 148 (App. Div. 1990) (affirming Law Division's denial of speedy trial motion in DWI case where trial occurred more than six months after arrest through no fault of defendant). But see Tsetsekas, supra, 411 N.J. Super. at 10 (reversing the denial of a speedy trial motion and indicating that "the factors are interrelated, and each must be considered in light of the relevant circumstances of each particular case").

In Tsetsekas, supra, we noted that "every delay was caused by the State's failure to be ready to proceed," which spanned 327 days. 411 N.J. Super. at 10, 12 (emphasis added). The court also stated that "the delays were numerous, mostly avoidable[,] and largely unexplained." Id. at 12. The defendant did not file any evidentiary motions and never consented to any adjournments.

Here, defendant was arrested on January 16, 2010, and his trial occurred fourteen months later, on March 29, 2011. As stated by Judge Jerejian:

It could be argued that the delay here is presumptively prejudicial, and the court does not condone the nature of this delay as a general practice. However, the length of the delay alone does not create a Sixth Amendment violation, but is only one factor in the analysis. Therefore, the court must now balance the delay with the other [Barker] factors . . . ."

II.

The second factor "examines the length of a delay in light of the culpability of the parties." Tsetsekas, supra, 411 N.J. Super. at 12. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the defendant." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. "[A] valid reason, such as a missing witness, should serve to justify appropriate delay." Ibid. Moreover, "[d]elay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation." Farrell, supra, 320 N.J. Super. at 446. The court must evaluate whether the postponements "were 'reasonably explained and justified.'" Id. at 450 (quoting State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983)); see Gallegan, 117 N.J. at 355 (holding that "the major delays in the disposition of this case were caused by defendants' interlocutory appeals"). Finally, the New Jersey Supreme Court has indicated that some difficulties in adjudicating municipal court cases 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.

Here, defendant argues that "the reasons for the delays . . . are almost entirely attributable to the State." We disagree. While the prosecutor failed to provide the requested discovery by May 6, 2010, defendant consented to an extension to June 1, 2010, thereby neutralizing any fault that may have been attributed to the State with respect to that portion of the time interval. The prosecutor caused the next delay by failing to produce its witness. Subsequently, defendant "agreed to a brief adjournment to allow time to brief the significance of an issue that had just come to light concerning the admissibility" of evidence. Thereafter, the court entertained two of defendant's motions and adjourned a remaining issue pertaining to probable cause, in part because defendant's expert was not present. Defendant argues that the judge adjourned the matter because the prosecutor had to leave early. Defendant conceded, however, that he needed his expert for the probable cause issue. The prosecutor caused the next delay when its witness could not appear in court. Twenty-one days later, trial commenced.

A State's inability to produce its witness can justify some delay, Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117, while the delays that a defendant "caused or requested" are "not considered to weigh in favor of finding a speedy trial violation," Farrell, supra, 320 N.J. Super. at 446.

The facts here are distinguishable from Tsetsekas, supra, 411 N.J. Super. at 12, where "every delay was caused by the State's failure to be ready to proceed." In particular, defendant consented to the prosecutor's request for additional time to provide discovery given the delay in securing the materials needed from the Wyckoff Police Department; defendant agreed to an adjournment to brief an evidentiary issue; and he conceded that he would need his expert to address an issue he raised regarding probable cause. Furthermore, this case does not involve a defendant simply waiting to begin trial while the prosecutor caused unjustified delays. Rather, defendant filed two separate evidentiary motions and a motion to dismiss for lack of probable cause to arrest that had to be addressed before trial could begin. See Gallegan, supra, 117 N.J. at 355. Moreover, there was no deliberate attempt by the State to delay. See Barker, supra, 407 U.S. at 531, 92, S. Ct. at 2192, 33 L. Ed. 2d at 117 (indicating that "[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government"). We agree with Judge Jerejian that this factor does not weigh in defendant's favor.

III.

"A defendant has no duty to bring himself to trial." Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190; 33 L. Ed. 2d at 115. Nevertheless, "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. The right must be asserted in a timely manner. Fulford, supra, 349 N.J. Super. at 193; Douglas, supra, 322 N.J. Super. at 171.

Defendant contends that he took "affirmative steps to move his matter forward." However, defendant lagged in expressing to the court any concern about the length of time in getting to trial. His motion to compel discovery on April 22, 2010, hardly constitutes an assertion of his right to a speedy trial. It was not until November 8, 2010, approximately ten months after his arrest, when defendant filed his speedy trial motion. Then, on the date Judge Leddy was to hear that motion, defendant agreed to adjourn the matter once again to brief a different evidentiary matter. Approximately one month later, Judge Leddy denied defendant's motion after hearing argument and adjourned the remaining evidentiary issues, in part, because defendant's witness was not present. In sum, defendant's assertion of a speedy trial right was not expeditious and at times inconsistent with his own litigation conduct.

IV.

"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).]

The Court in Barker, supra, held that the defendant's "prejudice was minimal," despite "living for over four years under a cloud of suspicion and anxiety," and having spent "[ten] months in jail before trial." 407 U.S. at 534, 92 S. Ct. at 2194, 33 L. Ed. 2d at 119. In Prickett, supra, 240 N.J. Super. at 143-44, the court held that the defendant did not make a showing of prejudice beyond simply his loss of money and time derived from the one postponed trial date. The court in Farrell, supra, 320 N.J. Super. at 428, 450, 452, arrived at the opposite conclusion based on the expenses and other "inconveniences" attendant to the seven out of twelve State-caused postponements spanning 663 days in total. Similarly, the court in Tsetsekas, supra, found that the defendant suffered prejudice because of the "repeated delays and unnecessary appearances due to the State's ill-preparedness." 411 N.J. Super. at 14; cf. Fulford, 349 N.J. Super. at 195 (stating that defendant "should have been grateful to remain driving throughout th[e] entire period" of delay).

Here, defendant concedes that he did not "suffer[] prejudice in the form of a reduced ability to defend on the merits," the most important form of prejudice as articulated in Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Defendant testified that he continued to work throughout the entire course of the proceedings. In fact, because he retained his driver's license, Fulford, 349 N.J. Super. at 195, he was able to continue "go[ing] out on jobs" and "do[ing] the quoting," and "bidding." Furthermore, defendant was never incarcerated.

Defendant did testify that he had been sleeping less and that he incurred expenses as a result of the case. Even so, we agree with Judge Jerejian that "[d]efendant has not shown that the difficulties he experienced extend past the inevitable difficulties facing any defendant in a criminal trial."

On balance, we agree with Judge Jerejian that the totality of the Barker factors weigh in favor of the State and justified the denial of defendant's speedy trial motion. We vacate the stay and direct defendant to appear no later than November 1, 2012, at the municipal court to surrender his license and comply with the other aspects of the sentence.

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION