STATE OF NEW JERSEY v. TROY A. MCNAIR, SR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6185-11T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TROY A. MCNAIR, SR.,

Defendant-Respondent.

______________________________

May 7, 2013

Submitted April 22, 2013 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-02-26.

Jeffrey S. Chiesa, Attorney General, attorney for appellant (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

Edward J. Crisonino, attorney for respondent.

PER CURIAM

The State appeals from the July 16, 2012 Law Division order dismissing this indictment because of a violation of defendant's right to a speedy trial. We affirm.

The facts adduced from the record indicate that defendant was arrested on January 3, 2008 for stealing the identity of another person in order to obtain a driver's license. Defendant retained counsel, who moved to reduce bail. Defendant was released shortly thereafter.

On January 8, 2008, defense counsel wrote to the original Deputy Attorney General who was assigned to this case, confirming his representation, requesting the entry of defendant's plea of not guilty, and seeking discovery of the State's evidence. The letter went unanswered because the Deputy Attorney General was transferred to another bureau within the Attorney General's Office and the case was not acted upon for forty-nine months.

The State ultimately discovered the oversight in November 2011 and a new Deputy Attorney General took over. On February 9, 2012, the successor Deputy Attorney General presented the case to a grand jury, which indicted defendant on three counts of second-degree misuse of personal identifying information of another and three counts of third-degree tampering with public records or information. Defendant moved in May 2012 to dismiss the indictment on speedy trial grounds.

After hearing oral argument, the trial court granted defendant's motion on July 16, 2012. In the trial judge's oral decision, he analyzed the motion under the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Upon considering those factors, the judge concluded that, on balance, dismissal of the indictment was appropriate. This appeal by the State ensued.

Since 1967, the United States Supreme Court has held that "the right to a speedy trial, guaranteed by the United States Constitution, U.S. Const. amend. VI, [is] a fundamental right applied to the states by the Due Process Clause of the Fourteenth Amendment." State v. Cahill, ___ N.J. ___, ___ (2013), slip. op. at 11-12 (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967)); see also N.J. Const., art. I, 10; Cahill, supra, slip op. at 11-12 (recognizing an equivalent right under New Jersey law); State v. Smith, 10 N.J. 84, 89-90 (1952).

Thereafter in Barker, supra, the Court "identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial[.]" Cahill, supra, slip. op. at 12 (citing Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). The four factors are: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted the right, and (4) prejudice to the defendant. Ibid.

As to the first Barker factor, the Court instructed that "a delay may be presumptively prejudicial and such a delay will trigger consideration of the other factors." Cahill, supra, slip op. at 13 (citing Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "The length of the delay that may be considered presumptively prejudicial depends on the circumstances of the individual case, including the nature of the charged offense." Ibid.

Second, a court must evaluate the "lapse of time between indictment and trial[.]" Ibid. "[T]his factor requires consideration of the amount of time customarily required to dispose of similar charges, and the defendant has the obligation to establish that customary period." Ibid. (citing Barker, supra, 407 U.S. at 651-52, 112 S. Ct. at 2690-91, 120 L. Ed. 2d at 528). "[T]he lapse of time that might trigger a violation . . . depends on the nature of the charges lodged against the defendant." Ibid. Subject to the nature of the charges, post-accusation delay has been generally treated as "presumptively prejudicial" when the delay approaches one year. Id. at 14. "[M]ost decisions have identified a period of one year or slightly more than one year as the time after which it makes sense to inquire further into why the defendant has not been tried more promptly." Ibid. (internal quotation marks omitted).

Third, "once the delay exceeds one year, it is appropriate to engage in the analysis of the remaining Barker factors." Id. at 15. If a defendant asserts a violation of his speedy trial rights, "the government is required to identify the reason for the delay." Ibid. (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117).

"A defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial." Ibid. Even so, "'whether and how a defendant asserts his right is closely related' to the length of the delay, the reason for the delay, and any prejudice suffered by the defendant." Id. at 15-16 (quoting Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). "As such, the assertion of a right to a speedy trial in the face of continuing delays is a factor entitled to strong weight when determining whether the state has violated the right." Id. at 16.

Lastly, as to the fourth element, "prejudice is assessed in the context of the interests the right is designed to protect." Ibid. (citing Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "Those interests include prevention of oppressive incarceration, minimization of anxiety attributable to unresolved charges, and limitation of the possibility of impairment of the defense." Ibid.

As our State Supreme Court recently underscored in Cahill, "[n]one of the Barker factors is determinative, and the absence of one or some of the factors is not conclusive of the ultimate determination of whether the right has been violated." Ibid. (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "All factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial." Ibid.

Applying these standards in Cahill, the New Jersey Supreme Court held that a sixteen-month delay between the remand of a driving-while-intoxicated charge to a municipal court and the defendant's receipt of a municipal trial notice deprived him of his constitutional right to a speedy trial. Id. at 24-29. Although the defendant had not demanded a trial, nor had he asked about the status of his case during that sixteen-month interval, the Court held that "the lengthy and unexplained delay in bringing [the] matter to a conclusion" warranted a dismissal of the charges. Id. at 27-28. Such dismissal was not foreclosed by the defendant's failure to identify specific prejudice flowing from the delay. Id. at 28-29. As the Court noted, "[w]e must assume that any person who has had limited involvement with the criminal justice system would experience some measure of anxiety by the existence of a pending and long-unresolved charge." Id. at 29.

Here, the State, without justification, let this prosecution lay dormant for over four years. The State's explanation is that the responsible Deputy Attorney General was transferred to a different office and the case was inadvertently not pursued until the oversight was discovered. However, as the Court observed in Cahill, a neutral reason for inaction, "such as negligence or a heavy caseload, will . . . be weighed against the government, albeit less heavily than deliberate delay, because it is the government's ultimate responsibility to prosecute cases in a timely fashion." Id. at 15. In addition, we agree with the trial court's comments at the motion hearing that defendant "probably was anxious and upset" about the unusually lengthy delay in prosecuting this matter after his 2008 arrest, and that his "right to repose" and "right to know what [his] future is going to hold" present significant considerations in his favor.

Affirmed.