STATE OF NEW JERSEY v. ROBERT POMENTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5349-08T35349-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

ROBERT POMENTO,

Defendant-Appellant.

______________________________

Argued February 9, 2010 - Decided March 19, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-099.

Alexander M. Iler argued the cause for appellant (Law Offices of Alexander M. Iler, attorney; Mr. Iler and Travis Tormey, on the briefs).

Matheu D. Nunn, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Mr. Nunn, on the brief).

PER CURIAM

After his speedy trial motion was denied in the municipal court, defendant Robert Pomento entered a conditional plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, and failure to report an accident, N.J.S.A. 39:4-130, for which he received a three-month driver's license suspension and was assessed fines and costs. He appealed to the Law Division on the limited issue of whether his right to a speedy trial had been violated by the 405-day delay between his arrest and adjudication. The Law Division judge found no constitutional deprivation and re-imposed defendant's municipal court sentence. Defendant appeals, and we affirm.

On February 11, 2008, defendant was arrested and issued summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-50; failing to report an accident, N.J.S.A. 39:4-130; lack of insurance, N.J.S.A. 39:6B-2; and improper backing, N.J.S.A. 39:4-127. Ten days later, on February 21, 2008, defense counsel requested discovery, including an "Operator's Certificate" for the person administering the Alcotest to defendant, and "[a] copy of all videotapes of the Defendant's stop and arrest, as well as, all audiotapes of communications between the dispatcher, any officers/troopers and/or any third parties involved in this matter." That same day, counsel appeared on defendant's behalf at the Morristown Municipal Court, entered a plea of not guilty, and made a formal request for discovery.

The municipal prosecutor provided discovery materials on March 10, 2008, but was advised later that day by defense counsel that the Alcotest operator's certification card was missing from the packet. At a pre-trial conference on March 24, 2008, the prosecutor informed that the State Police were in the process of fulfilling the State's request for a replacement operator's card since the original had apparently been misplaced. On the April 7, 2008 trial date, the matter was adjourned and rescheduled for May 15, 2008, because the replacement certification card had not yet been produced by the State Police. When, on May 15, 2008, the defense discovery request had still not been satisfied, the matter was set down for "a try or dismiss" on July 21, 2008.

Although, at that time, there was no mention of the audio and video tapes requested earlier, the next day, May 16, 2008, defense counsel reminded the prosecutor that no such tapes were ever provided. A follow-up letter of July 15, 2008, once again informed the prosecution that the audio and video tapes, as well as the Alcotest operator's certification card were yet to be provided in discovery.

Although he was given the audiotape and operator's replacement card when he arrived for trial on the evening of July 21, 2008, defendant moved to dismiss the summonses because the videotape and the replacement card request letter were still outstanding. In response, the prosecutor explained that the delay was occasioned by the need to replace the operating officer's Alcotest certification card, which had been either lost or misplaced. The judge, who was not the one who had set the "try or dismiss" date, denied the motion without prejudice, and adjourned the matter to allow the State to complete discovery. Soon thereafter, sometime during the week of August 5, 2008, defendant received full discovery.

Defendant's August 5, 2008 motion for reconsideration was denied on September 17, 2008. The municipal court judge noted that discovery had been completed and that a trial date would be set on a "try or dismiss basis." On October 22, 2008, defendant filed an interlocutory appeal in the Law Division, where the matter was heard and denied on November 21, 2008. The judge remanded the matter to the municipal court for trial, admonishing:

I would strongly suggest they schedule it for the trial and not bring it in two or three times. And we don't have some officer here and so forth. Then I think [defendant's counsel] has a different argument than he has today.

. . . I think it's in everyone's interest to move this along for some finality.

. . . .

If you show up for trial and you have everybody there and, you know, there's some inexcusable reason why the State's not prepared to go, I would hope [the municipal court judge] will make the proper decision based on that.

A trial date was later scheduled for February 24, 2009. But, a week before trial, defendant was informed that the State would be unable to proceed on the scheduled date as one of its police witnesses was absent due to a medical procedure, and the other, a member of the military reserve, was on military leave. Over defense counsel's objection, the matter was adjourned to March 23, 2009, at which time, after defendant's speedy trial motion was denied, defendant entered conditional pleas of guilty to DWI and failure to report an accident.

On appeal to the Law Division, defendant once again raised his right to a speedy trial. In finding no infringement of the right, the judge concluded:

It did take a considerably long period of time for this case to be reached and resolved. . . .

A lot of the initial delays appear to be the difficulties in getting the State Police operator's or the operator's card

. . . .

. . . .

And that . . . was some of the delay. It was not internal within the Court or within the local police department. . . .

All that time, I might add, the defendant was driving in New Jersey, Pennsylvania, not in jail. No . . . liberty certainly had been taken away from him at that point. I can appreciate some anxiety, wishing to get this matter resolved, and

. . . obviously attorney's fees were being incurred every time the case had to come to court.

. . . Again, most of the time it was either a witness problem or in some cases we had a changing of judges. . . . So that did cause some additional delays with . . . that process.

There were some motions certainly filed by the defendant, both at the local level but also the -- by the time . . . they filed the motion to come to this Court and the return date, there were a number of months, I believe, that had transpired until this Court addressed that and sent it back. There was one occasion I noted here when defense counsel asked that a new schedule not take place for a month or so because the defense attorney would be on vacation. . . .

The Court . . . is called upon here to again look at the totality of the circumstances . . . and look at the reasons for the delays. Was there a prejudice clearly to this defendant that should outweigh the underlying case? I do not find today -- well . . . I do see the delay in getting this case resolved, I have to say in other more urban municipal courts, drunk-driving cases sometimes take longer than this to get resolved.

I don't see that there was any overt acts by the State that they tried to hide evidence, they were purposely delaying

. . . . A number of reasons, unfortunate, that caused a delay, but other than, again, perhaps some additional legal fees, this defendant I do not find was prejudiced by the delay. [A]nd I find again that because -- particularly because of the importance of a drunk-driving case being dealt with in the Court and not dismissed outright without a court reviewing the evidence and hearing the case. I find today that the defendant's rights were not negated here by this delay, and the application today to dismiss the conditional plea for failure of the State to provide a speedy trial is denied.

We agree.

"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." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967)). "'The constitutional right . . . attaches upon defendant's arrest.'" Ibid. (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)). It is the State's duty to promptly bring a case to trial; that responsibility does not fall on the defendant. Ibid. (quoting State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)). Accordingly, "[a]s a matter of fundamental fairness," the State must avoid "excessive delay in completing a prosecution[,]" or risk running afoul of the "defendant's constitutional right to speedy trial." Ibid. (citing State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999)).

The determination of "when a delay infringes upon a defendant's due process rights[]" is guided by the four-part test announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), and adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). Tsetsekas, supra, 411 N.J. Super. at 8. Specifically, "[c]ourts must consider and balance the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Ibid. (quoting Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "These four factors are . . . applied when defendant asserts a speedy trial claim arising from delay in a municipal court drunk driving prosecution." Fulford, supra, 349 N.J. Super. at 189; see Tsetsekas, supra, 411 N.J. Super. at 8 (citing State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006), appeal dismissed, 196 N.J. 82 (2008)); Farrell, supra, 320 N.J. Super. at 446).

In applying the four-part test, "[n]o single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Tsetsekas, supra, 411 N.J. Super. at 10 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "Rather, the factors are interrelated," and a fact-sensitive analysis is necessary so that each factor is "considered in light of the relevant circumstances of each particular case." Ibid. Finally, as for this court's standard of review, a determination by a trial judge regarding whether defendant was deprived of his right to a speedy trial should not be overturned unless clearly an abuse of discretion. Merlino, supra, 153 N.J. Super. at 17.

As to the first factor, "'ordinarily adjournments are within the discretion of the trial court.'" Tsetsekas, supra, 411 N.J. Super. at 10 (quoting State. v. Gallegan, 117 N.J. 345, 354 (1989)). However, when those adjournments cause an excessive delay in the adjudication of a criminal matter, they may infringe upon a defendant's constitutional rights. On this point, "'[t]he New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases.'" Id. at 11 (quoting Farrell, supra, 320 N.J. Super. at 446-47). Specifically, "'[i]n 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days.'" Ibid. In this regard, the length of the adjudicative process is measured from the date of arrest to the date of trial. State v. Douglas, 322 N.J. Super. 156, 170 (App. Div.), certif. denied, 162 N.J. 197 (1999); see Farrell, supra, 320 N.J. Super. at 428.

Despite the Supreme Court's directive, it has never been suggested that "any delay beyond the sixty-day goal is excessive," as "[t]here is no set length of time that fixes the point at which delay is excessive." Tsetsekas, supra, 411 N.J. Super. at 11. Indeed, courts have found, in certain instances, that lengthy delays do not run afoul of the constitutional speedy trial guarantee. See, e.g., State v. Prickett, 240 N.J. Super. 139 (App. Div. 1990) (over six-months); Berezanksy, supra, 386 N.J. Super. at 99 (nearly five-months); Fulford, supra, 349 N.J. Super. at 194-96 (thirty-two months). But see Tsetsekas, supra, 411 N.J. Super. at 11 (344 days); Farrell, supra, 320 N.J. Super. at 428 (663 days); State v. Perkins, 219 N.J. Super. 121, 125-26 (Law Div. 1987) (approximately three months). Rather, "[t]he special circumstances inherent in each case being considered must govern in this regard." State v. Smith, 131 N.J. Super. 354, 362 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976). See also Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 ("the length of delay that will provoke [a speedy trial] inquiry is necessarily dependent upon the peculiar circumstances of the case.")

"Barker's second prong examines the length of a delay in light of the culpability of the parties." Tsetsekas, supra, 411 N.J. Super. at 12 (citing Barker, supra, 407 U.S. at 529, 92 S. Ct. at 2192, 33 L. Ed. 2d at 116). "Barker made it clear that 'different weights [are to be] assigned to different reasons' for delay." Doggett v. United States, 505 U.S. 647, 657, 112 S. Ct. 2686, 2693, 120 L. Ed. 2d 520, 531 (1992) (quoting Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Purposeful delay tactics weigh heavily against the State. Tsetsekas, supra, 411 N.J. Super. at 12 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "A more neutral reason[,] such as negligence or overcrowded courts[,] should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. On the other hand, "a valid reason, such as a missing witness, should serve to justify appropriate delay." Ibid. And, "[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.

As to Barker's third factor, a defendant's assertion of his or her right to a speedy trial need not be "by way of formal motion." Smith, supra, 131 N.J. Super. at 363. Indeed, such informal comments as a defendant stating that he or she was "'ready for trial' and 'wanted it to occur sooner rather than later[]'" have been held as sufficient assertions of a defendant's right. State v. May, 362 N.J. Super. 572, 597 (App. Div. 2003). A court may also consider "the frequency and force of the [defendant's] objections" when assessing whether the defendant properly invoked the right. Barker, supra, 407 U.S. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 115.

The final prong of the Barker test measures the prejudice to a defendant caused by the trial delay. "[P]roof of actual trial prejudice is not 'a necessary condition precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, supra, 411 N.J. Super. at 13-14 (quoting Merlino, supra, 153 N.J. Super. at 15-16). Although the delay may have caused a defendant

no prejudice affecting [his] liberty interest or his ability to defend on the merits[] . . . significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the "other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances."

[Id. at 13 (citing Farrell, supra, 320 N.J. Super. at 452; Fulford, supra, 349 N.J. Super. at 195; State v. Dunns, 266 N.J. Super. 349, 380 (App. Div.), certif. denied, 134 N.J. 567 (1993); Merlino, supra, 153 N.J. Super. at 15-16).]

Measured against these four factors, we conclude there has been no violation of defendant's constitutional speedy trial right. As noted, defendant was arrested on February 11, 2008, and the charges were ultimately adjudicated by his guilty plea 405 days later, on March 23, 2009. While the adjournment of the first three trial dates April 7, May 15 and July 21, 2008 are attributable to the State because of defendant's outstanding discovery requests, by the week of August 5, 2008 approximately 180 days after defendant's arrest discovery had been completed and the matter was ready for trial. Thereafter, from August 5 through November 21, 2008, the delay was occasioned by the pendency of dispositive motions and an interlocutory appeal filed by defendant. Subsequently, from November 21, 2008 through February 24, 2009 the next scheduled trial date the delay was attributable to court calendaring considerations and not to any conduct of the prosecution. Additionally, the adjournment of the February 24, 2009 trial date was necessitated by the excusable absence of both of the State's police witnesses.

Significantly, no claim is made that any of the delay attributable to the prosecution was the result of "deliberate attempts to hamper the defense." Tsetsekas, supra, 411 N.J. Super. at 12. To be sure, a finding of purposeful misconduct is not necessary. See ibid. "In representing the State, the prosecutor and the police must accept responsibility for ensuring a defendant's right to a speedy disposition of the charges is respected. This requires expediting all necessary discovery and maintaining communication with police witnesses to assure their availability." Id. at 13. Nevertheless, the State here had completed discovery and was ready for trial within six months of defendant's arrest, a much shorter period of time than the 344 days attributable solely to the prosecution in Tsetsekas. Thereafter, the only other delay occasioned by the State in this case was due to the unavoidable absence of its two police witnesses, which was reasonably explained and justified. See Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983).

Moreover, there is no claim that the delay enabled the prosecution to gain any tactical advantage, or that defendant was frustrated in his ability to proffer an appropriate defense. Nor is there any proof that the delay attributable to the State was due to any nefarious conduct or bad faith on its part. To the contrary, the State did not sit idly by and ignore defendant's discovery requests. Soon after the initial request was made, the prosecution provided defendant a discovery packet, albeit incomplete, and timely requested that the State Police produce a replacement certification card for the officer who administered the Alcotest to defendant. The delay in producing this card was beyond the control of the municipal prosecutor and, in any event, the card was turned over to defendant less than three months after defendant first asserted his right to speedy trial on May 15, 2008.

We also discern no significant prejudice to defendant by the delay in prosecution. As noted, there is no proof that defendant was unable to defend the charges against him, and he suffered no penalties in the interim. While defendant claims a loss of employment, the record is bereft of any evidence that his unemployment was caused by the delay in adjudication as opposed to the DWI arrest itself. And while defendant no doubt experienced anxiety, financial expense, and inconvenience in awaiting disposition of the pending charges, Tsetsekas, supra, 411 N.J. Super. at 14, every defendant lives with a certain level of uncertainty, embarrassment, anxiety, and expense of the pending prosecution during any delay. Moore v. Arizona, 414 U.S. 25, 27, 94 S. Ct. 188, 190, 38 L. Ed. 2d 183, 186 (1973). Moreover, here, a measure of the financial expense and emotional toll may be attributed to defendant's own deliberate legal maneuvers in moving for reconsideration and an interlocutory appeal. Under the circumstances, we cannot say that any increased level of anxiety and expense suffered by the defendant as a result of the State's delay warrants dismissal of the serious charges in this case.

"'[I]n the administration of justice[,] dismissal must be a recourse of last resort.'" Tsetsekas, supra, 411 N.J. Super. at 14 (emphasis added) (quoting Farrell, supra, 320 N.J. Super. at 447). Weighing the four Barker factors, including the reasons for the 405-day delay and its impact on defendant, we conclude that, while the State has fallen short of its responsibility to efficiently prosecute this matter, the strong governmental interest in prosecuting this serious charge outweighs the minimal prejudice to defendant.

 
Affirmed.

The improper backing charge was subsequently merged into the DWI offense, and the insurance charge was dropped.

Defense counsel had requested a trial date for the first Monday in June since he would be on vacation until May 28th and defendant would be starting classes and therefore unavailable on the weekday evening when court was in session. The prosecutor had requested a date when there would not be too many cases on the calendar since the matter would definitely be tried, either on the Alcotest reading or observation. Counsel were thereafter notified of the July 21, 2008 trial date, presumably the earliest available date on the court's calendar.

As required by N.J.A.C. 13:51-1.12(b),

[i]f a replica has been lost, or is otherwise in need of replacement, the Chief of Police or other executive head of the organized police department of which the operator is a member shall notify the Superintendent, in writing, in care of the Alcohol/Drug Test Unit of the Division of State Police of such loss or need for a replacement.

Supreme Court Directive #1-84, Directive on Statewide DWI Backlog Reduction, issued on July 26, 1984.

(continued)

(continued)

17

A-5349-08T3