STATE OF NEW JERSEY v. MICHAEL J. SIRIANI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4115-03T44115-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. SIRIANI,

Defendant-Appellant.

________________________________________________________

 

Submitted September 1, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0879.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anthony Rizzo, Assistant Deputy Public Defender, of counsel and on the briefs).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, on the brief).

PER CURIAM

By leave granted, defendant Michael J. Siriani appeals from the denial of his motion to dismiss an indictment returned by the Burlington County grand jury charging him with two robberies in the first-degree. Defendant contends, as he did below, that he was denied his "Sixth Amendment right to a speedy trial." The State counters by arguing the motion judge properly denied defendant's application. We have considered these arguments in light of the record and applicable legal standards. We affirm.

For purposes of the appeal, the facts and procedural history are essentially undisputed. In the early morning hours of December 27, 2006, two Wawa convenience stores, one in Lumberton Township, the other, in nearby Springfield Township, were robbed. In both instances, the perpetrator demanded money from the cashier, proceeded to count down the time he had given the cashier to tender the cash, and threatened the use of, but never revealed, a gun. Although the record reveals that neither victim was asked to subsequently identify the perpetrator by photographic array or line-up, police investigation led to defendant's arrest on December 29.

Apparently, co-defendant Vincent Allen told police that defendant was the robber in the Lumberton incident. Surveillance videotape from both stores were viewed by police, and the investigating officer testified before the grand jury that defendant was the robber in both instances. Further investigation additionally revealed other facts linking defendant to both crimes, including descriptions of his clothing, the manner in which both robberies occurred, and the fact that a carton of Newport cigarettes taken from the first convenience store was found in Allen's vehicle.

Defendant has remained incarcerated since his arrest, and was indicted on May 31, 2007. Apparently, in either November or December 2008, defendant wrote to the vicinage assignment judge "assert[ing] his right to a speedy trial[.]" On April 7, 2009, defendant's motion to dismiss was orally argued before the motion judge. Defendant argued there was no excuse for the delay since the case was relatively simple, lacked any forensic evidence, and could be routinely presented to a jury. He noted that his actions had caused no delay. He further argued that delay was presumptively prejudicial as a "matter of law."

The State argued that defendant was charged with two serious crimes that were both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and, based upon defendant's "prior history," he faced a potential life sentence. The State argued that the delay was caused by something over "which it had no control[.]"

This reference was clarified by the judge himself. First, he noted that he had been diagnosed with lung cancer and was receiving treatments since defendant's indictment. However, the judge noted that was not the primary reason for the delay, which was, instead, occasioned "by the number of cases" assigned to his calendar. He concluded that "the Court's calendar" was not attributable to any fault of the State. After considering relevant federal and state precedent, the judge denied defendant's motion to dismiss on speedy trial grounds. He set a trial date for December 1, 2009.

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United State Supreme Court considered the Sixth Amendment's guarantee of a speedy trial to all criminal defendants. The Court adopted a "balancing test" that required consideration of four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.

Our Supreme Court adopted the Barker test in State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). Our Court Rules permit a defendant to seek dismissal of an indictment, and further permit the court to do so sua sponte, when "there is unreasonable delay in the disposition of an indictment[.]" R. 3:25-3. Determination of what is an "unreasonable" delay rests upon "balancing of interests . . . on an ad hoc basis" considering the idiosyncratic facts of each case. Szima, supra, 70 N.J. at 201. "[N]one of the four factors [is] [ ] a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they [are] to be treated as related factors to be considered with such other circumstances as may be relevant." Ibid.

In this case, the judge noted that the twenty-two month delay between defendant's indictment and the hearing on his motion was not extraordinary. In Szima, the Court noted that a twenty-two month delay between complaint and indictment did not in and of itself merit dismissal. Id. at 202. However, unlike the defendant in Szima, defendant has been incarcerated since his arrest, and, assuming he does not make bail, will remain in custody for thirty-six months before he is tried. The delay is not one we condone, but, in and of itself, does not warrant dismissal.

Defendant did not assert his right to a speedy trial until November or December 2008, some two years after his arrest, and eighteen or nineteen months after his indictment. The application was formally heard within months thereafter. In the balancing of interests, defendant's delay mitigates against the relief sought. See Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118 (noting "the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial").

It is the remaining two Barker factors upon which defendant primarily relies. He contends that the reason for the delay, i.e., trial backlog, should be attributed to the State since he is not in a position to affect the court calendar. Additionally, he argues that he need not demonstrate any particular prejudice caused by the delay, and that it should be presumed that any delay is prejudicial. We are unpersuaded by both of these contentions.

In considering the reason for any delay, we have noted "and distinguished the relative weight to be given to a 'deliberate attempt to delay the trial in order to hamper the defense' and a more 'neutral' reason such as negligence or an overcrowded court calendar. The former is to be weighed more heavily for a defendant, even though no matter the reason for delay, 'the ultimate responsibility' for bringing the case to trial 'must rest with the government.'" State v. Douglas, 322 N.J. Super. 156, 171-172 (App. Div.) (quoting Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117), certif. denied, 162 N.J. 197 (1999).

Defendant has not asserted, the judge did not find, nor does the record disclose, any intent by the State to hamper defendant's ability to present a defense. Indeed, the judge noted that the delay in this case only served defendant's interests since the memories of the State's victims and eyewitnesses would more likely be adversely affected by the passage of time.

Instead, defendant contends that the reason for the delay in this case, court backlog, should nonetheless be attributed to the State, relying, in part, upon dicta in a recent United States Supreme Court case, Vermont v. Brillon, 556 U.S. ___, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009). There, while reversing the Vermont Supreme Court's dismissal of defendant's conviction on speedy trial grounds, the Court nonetheless noted that in the speedy trial context, "[d]elay resulting from a systemic breakdown in the public defender system could be charged to the State." Id. at slip op. 11, 129 S. Ct. at 1292, 173 L. Ed. 2d at 242 (quotations and citations omitted).

We accept that any court backlog that occasions a delay in scheduling trials is not a reason attributable to defendant. However, in considering this reason, and whether the State must shoulder its burden, we must conclude that, at best, it is of "neutral" weight in the Barker analytic paradigm. The judge recognized the serious nature of the offenses for which defendant was indicted. He further noted the existence of other trials, including a murder case, that were already scheduled before defendant's motion was heard. The judge attempted to ameliorate any further delay by assigning the case a December trial, apparently, the earliest date that he could. The record is devoid of any evidence that there exists a "systemic breakdown" regarding trial dates in the vicinage.

It is clear from the transcript that the judge was frustrated by the allocation of available resources to all courts in the vicinage. We suggest, therefore, that this concern be addressed, if possible, by consultation between the presiding judge of the criminal part, and the vicinage assignment judge. However, under all the circumstances presented, we cannot conclude that the reason for the delay in this case rests with the prosecutor, or that it should result in dismissal.

Lastly, we have recognized "three factors of prejudice: 'oppressive pretrial incarceration, anxiety and concern of the accused and impairment of the defense.'" State v. Gaikwad, 349 N.J. Super. 62, 89 (App. Div. 2002) (quoting Szima, supra, 70 N.J. at 201). While we acknowledge defendant's continuous incarceration amounts to prejudice, he admittedly has failed to demonstrate any impairment to his ability to present a defense. "Such a consequence would be the weightiest form of prejudice." State v. Fulford, 349 N.J. Super. 183, 194 (App. Div. 2002).

Barker requires our careful consideration of this factor. We have repeatedly refused to grant the extraordinary relief of dismissal whenever a defendant has failed to demonstrate prejudice in this regard. See Fulford, supra, 349 N.J. Super. at 195; and Douglas, supra, 322 N.J. Super. at 173 (where we accorded particular significance to the fact that "nothing in the record suggest[ed] [ ] defendant was unduly prejudiced by the delay"). Moreover, as the motion judge noted after considering all the State's proffered evidence, the delay would not impair defendant's ability to defend against the charges, but rather would inure to his benefit.

As we have already noted, we do not condone the significant passage of time between defendant's arrest and his likely trial. And, as an administrative matter, if such delays are commonplace in the vicinage, and we note the record does not so reflect, the problem should be addressed. We refer the issue to the vicinage assignment judge. However, considering and weighing all the factors enunciated in Barker, we conclude that dismissal of the indictment was properly denied.

Affirmed.

The motion judge granted defendant's motion to sever the two robberies for trial, and denied his motion to dismiss the indictment based upon insufficient evidence before the grand jury. Defendant does not appeal from that decision.

At the time of the hearing, defendant's bail was $75,000.

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A-4115-08T4

September 9, 2009