STATE OF NEW JERSEY v. MICHAEL CAHILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0617-10T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL CAHILL,

Defendant-Respondent.

___________________________

Submitted June15, 2011 DecidedJune 28, 2011

 

Before Judges A.A. Rodr guez and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 27-10.

 

Warren W. Faulk, Camden County Prosecutor, attorneyfor appellant(Jason Magid, Assistant Prosecutor, of counsel and on the brief).

 

Costello & Whitmore, attorneys for respondent (Marissa J. Costello, on the brief).

 

 

PER CURIAM

The State appeals from the order of the Law Division entered following de novo review on August 31, 2010, granting defendant's motion to dismiss certain motor vehicle violations on speedy trial grounds and vacating defendant's conditional guilty plea to one of those violations as well as all sanctions imposed. We affirm.

On October 28, 2007, defendant was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; consumption of alcohol while operating a motor vehicle, N.J.S.A. 39:4-51a; possession of an open container of alcohol while on a public highway, N.J.S.A. 39:4-51b; and reckless driving, N.J.S.A. 39:4-96. On April 10, 2008, he was also indicted for fourth-degree assault by auto, N.J.S.A. 2C:12-1c(1). The charges arose from an incident in Pennsauken when defendant drove his car while intoxicated and struck a police cruiser, slightly injuring an officer inside that vehicle.

On September 19, 2008, defendant pled guilty to the assault by auto charge. On November 14, 2008, he was sentenced to a nine-month term of probation; the appropriate statutory assessments were also imposed. Defendant acknowledged that he "waived double jeopardy in connection with the motor vehicle violations" and that he would "have to deal with that back in municipal court[.]" Under a cover letter of that same date, the Office of the Camden County Prosecutor remanded defendant's motor vehicle violations back to the Pennsauken Municipal Court for further proceedings.

Defendant thereafter received a notice from the municipal court dated March 17, 2010, setting a court date of April 12, 2010, for disposition of the motor vehicle summonses. On May 26, 2010, defendant filed a motion to dismiss the charges on speedy trial grounds. The municipal judge denied the motion. Defendant thereupon entered a conditional plea of guilty to the DWI charge, preserving his right to appeal the denial of his motion to dismiss. The remaining motor vehicle charges were dismissed and defendant was sentenced to the loss of his driver's license for one year, appropriate fines and penalties, and twelve hours at the IDRC.

Defendant filed an appeal de novo in the Law Division. After hearing oral argument on August 26, 2010, Judge Anthony M. Pugliese rendered a decision from the bench dismissing the municipal charges on speedy trial grounds. The judge entered an order on August 31, 2010, and appended a written opinion that essentially summarized his oral bench decision.

The judge found that defendant was arrested for the motor vehicle violations on October 28, 2007, and did not receive notice of a court date with respect to those charges until March 17, 2010. The judge acknowledged that the "delay" between October 28, 2007 and November 14, 2008 was "excusable," but that there was "no proper cause" for the sixteen-month delay from November 14, 2008 to March 17, 2010.

The judge analyzed the factors governing speedy trial motions set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and found: (1) the sixteen-month delay "was occasioned by the State and in no way was the fault of . . . defendant"; (2) defendant was not "obligat[ed] to demand that his matter be scheduled for trial[,]" and he "properly asserted" his "speedy trial rights" at the "appropriate point in time" when he filed his motion in May 2010; (3) defendant "need not [show] . . . actual trial prejudice, [such as] the loss of a witness or . . . a defense" but "[p]rejudice . . . can be found from employment, interruptions, anxiety, . . . or anything of the like," and that defendant had demonstrated prejudice before the municipal court in his counsel's contention that the fear of losing his license caused defendant to "turn[] down higher paying jobs that would have required his driver's license"; and (4) the municipal judge could have required defendant to testify on this point but chose not to, and in any event, defendant's testimony was not "necessary."

The judge further found, specifically with respect to the length of delay, that sixteen months substantially violated the judiciary's policy that "[m]unicipal [c]ourts should attempt to dispose of DWI cases within sixty days[,]" as set forth in State v. Farrell, 320 N.J. Super. 425, 446-47 (App. Div. 1999). The judge noted that sixteen months "exceed[ed] the delay" of 344 days, which we held to be grounds for dismissal of a DWI charge on speedy trial grounds in State v. Tsetsekas, 411 N.J. Super. 1, 11-12 (App. Div. 2009).

On appeal, the State contends that the judge's decision was "not supported by case law or the credible evidence contained in the record before the court." Having reviewed this contention in light of the record and the controlling legal principles, we conclude it lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

The four Barker factors -- "[l]ength of delay, the reasons for the delay, . . . defendant's assertion of his right, and prejudice to . . . defendant[,]" 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 -- have been adopted by our Supreme Court. State v. Szima, 70 N.J. 196, 200-01, certif. denied, 429 U.S. 896, 97 S. Ct. 259, 59 L. Ed. 2d 180 (1976). These factors apply to municipal court prosecutions. Farrell, supra, 320 N.J. Super. at 446.

"Courts must consider and balance" these factors. Tsetsekas, supra, 411 N.J. Super. at 8. This "multi-element balancing process[,]" Farrell, supra, 320 N.J. Super. at 446, requires the judge to accord appropriate weight to each factor; no single factor will be dispositive.

We are satisfied that the judge properly balanced, analyzed and applied the Barker factors to the facts of this case. The municipal court and prosecutor

fail[ed] to prepare . . . to try the[se] matter[s] exped[it]iously . . . . As a matter of logic and decency, given that the four factors of Barker call for a balancing of considerations, when the delay in concluding a trial is excessively long by any measure, as here, the burden upon defendant to satisfy the other factors is correspondingly diminished. When there is no reasonable explanation or justification for the excessive delay, speedy trial principles have been violated.

 

[Id. at 452-53.]

 

The circumstances here clearly warranted dismissal of defendant's municipal court charges on speedy trial grounds. We a

ffirm substantially for the reasons set forth in Judge Pugliese's bench decision of August 26, 2010 and his written opinion of August 31, 2010.

Affirmed.