STATE OF NEW JERSEY v. JONATHAN E. DOWNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN E. DOWNS,

Defendant-Appellant.

February 14, 2014

Submitted December 17, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2012-04.

Glenn R. Cochran, attorney for appellant.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Laura Kotarba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jonathan E. Downs appeals the November 29, 2012 Law Division order affirming the municipal court's denial of his motion to dismiss outstanding charges on speedy trial grounds. We reverse.

On April 13, 2012, defendant entered a conditional plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, reserving his right to pursue this appeal. Defendant was charged with DWI on February 2, 2010, and also charged with reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, parking in a no-parking zone, N.J.S.A. 39:4-138(g), operation of a motor vehicle with a controlled dangerous substance, N.J.S.A. 39:4-49.1, and possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Defendant was arraigned February 4, 2010.

The indictable offense was dismissed February 26, 2010. Defendant had requested discovery from the Hamilton Township Police Department (HTPD) earlier, on February 17, 2010. On March 3, 2010, HTPD notified defendant that it was not authorized to release the information and directed him to the Mercer County Prosecutor's Office. Upon contacting that office, on March 22, 2010, defendant was advised of the dismissal. He again requested discovery from HTPD, following up with a phone call on March 31.

Because the file could not be located, however, discovery was not provided until July 2011, some sixteen months later. On July 13, 2011, the municipal court notified defendant of his pretrial conference. Defendant expressed his intent to file a motion to dismiss, based on speedy trial, at the subsequent court appearance on August 3, 2011. The application was filed October 4, 2011. After analyzing the relevant factors as to speedy trial applications pursuant to Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), the municipal court judge denied the motion, concluding defendant had not shown any prejudice.

The Law Division judge in a written decision found that the 531-day delay, albeit prolonged, was not "by itself . . . determinative." Characterizing the reason for the delay as "somewhat uncertain," the Law Division judge ultimately attributed it to the lack of attention by both parties. The judge also asked whether the reason for delay favored either party, finding it did not. He agreed that defendant made a timely assertion of his right to speedy trial. Because the judge found that defendant suffered minimal prejudice as a result of the delay, dismissal was unwarranted. The delay was not initiated by the State, but "due to the fact that the case was placed in transit status, and its location was unknown." The judge therefore concluded defendant essentially acquiesced in the failure to prosecute by failing to make further discovery or status inquiries following his March 31, 2010 phone call. That fact, coupled with the minimal prejudice suffered by defendant, "compel[led] the conclusion that [defendant's] motion to dismiss for violation of his right to a speedy trial must be denied."

State v. Cahill, 213 N.J. 253 (2013), was not decided until some months after the Law Division's decision. Unlike the prior tribunals, we have the benefit of that analysis, significant because the facts are so similar.

In that case, like in this one, the defendant was charged with various motor vehicle offenses in addition to an indictable matter. Id. at 257. The defendant eventually entered a guilty plea to the indictable charge, and the related traffic offenses were returned to the municipal court. Id. at 259. No further action was taken for sixteen months between defendant's sentence date in the Law Division on the indictable charge and his receipt of the trial notice in the municipal court. Ibid.

In Cahill, the Supreme Court noted that "[o]nce a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay." Id. at 266. A "neutral reason," such as the one in this case where the State has been merely negligent in its management of the file, is also to be weighed against the government. Ibid. Ultimately it is the government's responsibility "to prosecute cases in a timely fashion." Ibid. Significantly, the Court noted that a defendant does not have an obligation to bring himself to trial; in other words, he or she need not engage in extraordinary efforts to bring the matter to a close. Ibid. In every case, individual examination of the circumstances must be made, as no "rigid bright-line try-or-dismiss-rule" has been adopted. Id. at 270.

In Cahill, the sixteen months that elapsed from the remand to the municipal court until notice of the first trial date was found to be a significant delay triggering consideration of the last three Barker factors. Id. at 273. The first requirement was met on an almost per se basis, namely, that the delay was excessive. Ibid. A DWI charge is straightforward; therefore a sixteen-month delay needed to be weighed against the State. See ibid.

That defendant did not assert his right to a speedy trial until after receiving the pre-trial notice was not weighed against him. Id. at 274. In fact, the Court noted that defendant's silence did not "counterbalance the lengthy and unexplained delay in bringing th[e] matter to a conclusion. Sixteen months [wa]s a long time to dispose of a driving-while-intoxicated case." Ibid.

The Court also noted that the final Barker factor, prejudice to the defendant, did not require actual evidence of prejudice. As the Court said, a judge should assume any person involved even in a quasi-criminal matter such as a DWI "would experience some measure of anxiety by the existence of a pending and long-unresolved charge. This [wa]s particularly true when one of the sanctions, a license suspension, would have a dramatic impact on defendant's daily activities and ability to earn a living." Id. at 275. On balance, the Court opined "that the extensive and unexplained delay, coupled with the generalized anxiety and personal prejudice occasioned by the protracted resolution of this matter, require[d] a finding that the State violated defendant's right to a speedy trial." Ibid. The charge was dismissed. Id. at 276.

The Cahill analysis is dispositive given the factual similarities between the two situations. There is little difference between the Court's consideration of the Barker v. Wingo factors in Cahill and any assessment of the factors in defendant's situation. If anything, in this instance, defendant more actively attempted to bring the matter to an end. He requested discovery around the time the indictable charge against him was dismissed, to no avail. Despite his best efforts, he was put off and shuttled between the HTPD and the Mercer County Prosecutor's Office. Misplacing a DWI file is not an adequate reason for a sixteen-month delay. Accordingly, we reverse the finding of the Law Division judge and dismiss.