STATE OF NEW JERSEY v. WALTER J. SCHWENK

NOT FOR PUBLICATION WITHOUT THE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.

WALTER J. SCHWENK,

Defendant-Appellant.

May 1, 2014

Submitted February 26, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 06-12.

Hornstine & Pelloni, attorneys for appellant (Brian A. Pelloni, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Walter J. Schwenk appeals from the July 11, 2012 Law Division order, which denied his motion to dismiss on procedural grounds, and affirmed his conviction for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50(a). For the reasons that follow, we affirm.

I.

On May 25, 2011, at approximately 11:00 p.m., defendant was arrested by an officer of the Evesham Township Police Department and charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated within a school zone, N.J.S.A. 39:4-50(g); speeding, N.J.S.A. 39:4-98; failure to maintain lane, N.J.S.A. 39:4-88(b); and reckless driving, N.J.S.A. 39:4-96. After defendant's arrest, he submitted to an Alcotest breath examination, which resulted in a .14% blood alcohol concentration.

Defendant pled not guilty on May 27, 2011, and requested discovery from the municipal prosecutor. On July 7, 2011, defense counsel received twenty pages of discovery, including a police report which indicated "[t]he video from the Digital Patroller system . . . was tagged and downloaded to the server[;]" however, the video was not provided. Defense counsel immediately contacted the Evesham Police Department and was told it could take "up to a couple of months" before the video would be ready for delivery.

On August 11, 2011, defendant and counsel appeared in the Evesham Municipal Court for trial. Defendant's counsel orally moved for dismissal based on the State's failure to provide discovery. Defense counsel argued the case had been listed for trial on four occasions over the previous three months, but postponed each time because the State had not supplied defense counsel with the video of defendant's stop and arrest as recorded by the dashboard camera in the arresting officer's patrol car. The judge denied the motion, and the case was relisted for September 8, 2011.

Before leaving the municipal building on August 11, 2011, defense counsel received a DVD of the stop; however, defense counsel was unable to open the DVD on his computer, or on several other computers. On August 31, 2011, defendant filed a motion in the Law Division for leave to appeal the municipal court judge's August 11, 2011 decision denying his motion to dismiss for failure to provide discovery.

Upon receiving the motion, Judge Ronald Bookbinder scheduled three telephone conferences attempting to assist defendant in receiving the outstanding discovery. On November 18, 2011, Judge Bookbinder heard arguments and denied defendant's interlocutory motion, determining it was premature; however, the judge "further ordered that defendant and defense counsel are to be provided access to the mobile vehicle recorder (MVR) footage as soon as practically possible[,]" and "that trial of this matter is to occur in the Evesham Township Municipal Court in December 2011 unless otherwise ordered."1 Following the motion, arrangements were made with the county prosecutor's office to view the MVR footage on its compatible computers, which occurred on November 29, 2011.

On December 15, 2011, defendant and counsel returned to municipal court for trial but the judge advised them the case had been listed only to review the status of the matter, not for trial. The case was relisted and returned to the municipal court for trial on February 2, 2011. At that time, defendant entered a guilty plea to the DWI charge,2 reserving his right to challenge procedural issues on appeal. The judge accepted defendant's guilty plea and sentenced him to a seven-month driver's license suspension, twelve hours in the Intoxicated Driver's Resource Center, as well as minimum mandatory fines and costs.

Thereafter, defendant filed a timely de novo appeal of his conviction and sentence to the Law Division, challenging the municipal court's rulings denying his discovery and speedy trial motions to dismiss. On June 28, 2012, Judge Thomas Kelly heard oral argument on the appeal and then issued an oral decision wherein he analyzed the delays in defendant's case, using the four-part test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Following this analysis, he concluded, under the circumstances, the delay in providing discovery and proceeding to trial were not the result of the State's willful actions, but were attributable to "malfunctioning or incompatible software . . . ." Because the discovery was finally provided, the judge found there was no egregious denial of discovery to justify dismissing the charges. Regarding the delay in proceeding to trial, that judge also noted the two and one-half months of the approximately eight-month delay was attributable to defendant's interlocutory appeal. Finally, the judge added,

Furthermore, I find that a delay of trial under these facts does not justify the ultimate disposition that is sought here and that is the dismissal of this case.

And the last issue is whether the case should be dismissed for disregarding Judge Bookbinder's order. [I am] going to deny this application by the defendant since the wording of the order itself says ["]unless further ordered.["] Obviously the municipal judge has some right to control the calendar in his or her court . . . . This gave . . . the municipal court judge some leeway to set the trial calendar and the time of trial was approximately [thirty] days thereafter.

Also the [c]ourt recognizes this was through the Christmas and New Year [holidays] which traditionally is problematic for courts in getting matters scheduled and getting all the necessary witnesses together.

II.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). As a matter of fundamental fairness, excessive delay in completing a prosecution may qualify as a violation of a defendant's constitutional right to a speedy trial. State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999) (citing State v. Gallegan, 117 N.J. 345, 354-55 (1989)). "'A defendant has no duty to bring himself to trial; the State has that duty . . . .'" State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977) (quoting Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115).

Because the facts relevant to the delay in this matter are undisputed, the issue presented is purely a question of law. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).

In Barker, the Court found four factors must be considered when determining if a delay infringes upon a defendant's due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how defendant has asserted his right to a speedy trial; and (4) the prejudice defendant incurred as a result of the delay. Barker, supra, 407 U.S. at 530-33, 92 S. Ct. at 2191-93, 33 L. Ed. 2d at 116-19. The test is flexible in its application and the court applying the test may balance additional factors it deems appropriate as well. Ibid.

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), our Supreme Court adopted the Barker test. These same standards also have been applied to municipal prosecutions. See State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008).

The first Barker factor addresses the length of delay. Defendant was arrested on May 25, 2011, and entered a guilty plea on February 2, 2012, a delay of 253 days. Although the Law Division found the length of delay unfortunate, it determined that the delay occurred primarily due to software problems relating to the video.

In Berezansky, we rejected a defendant's contention he was deprived of his constitutional right to a speedy trial based on the nearly five months that elapsed between his arrest and the beginning of his trial. Berezansky, supra, 386 N.J. Super. at 99. In State v. Prickett, 240 N.J. Super. 139, 148 (App. Div. 1990), we affirmed the denial of a speedy-trial motion in a trial held approximately six months after an arrest for driving under the influence. Similarly, the delay here was not excessive under the circumstances.

The second Barker factor concerns the reasons for the delay. The record fully supports Judge Kelly's finding the delays were not the result of willful actions by the State, but were instead attributable to "malfunctioning or incompatible software."

In Barker, the Court distinguished between deliberate and negligent delay, and held the former is weighed more heavily in favor of dismissal of the prosecution than delay attributable to the State's negligence or the court's procedures and calendars. Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. While the delay in providing discovery was attributable to the State in this case, the record supports a conclusion the delay was neither deliberate nor excessive and the reasons for the delay were valid.

The third Barker factor considers whether a defendant asserted his right to a speedy trial. Judge Kelly concluded defendant did assert his right to a speedy trial "continuously," but noted defendant's interlocutory appeals contributed to the ultimate delay.

The fourth Barker factor requires an analysis of whether the delay prejudiced defendant. While acknowledging the delay likely caused defendant anxiety, Judge Kelly found "an absence of any delay that caused prejudice to the defendant. [He] was not in custody during the [pendency] of this case. Denied freedom is the underlying principle for the right to a speedy trial."

After considering the Barker factors, we agree with Judge Kelly that defendant's right to a speedy trial was not violated. We also agree with Judge Kelly's determination the delay in providing counsel with the video of defendant's stop and arrest did not warrant dismissal in this case. As we previously stated,

There is an overriding policy which is firmly imbedded in our law which disfavors the procedural dismissal of cases, except on the merits. Procedural dismissal is a choice of last resort not one of first instance. Surely, dismissal should not ordinarily, if ever, be used punitively or as a method of calendar control.

. . . "[W]e must never forget that courts exist for the sole purpose of rendering justice according to law. No eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case."

[State in the Interest of D.J.C., 257 N.J. Super. 118, 121 (App. Div. 1992) (quoting Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div. 1951)).]

Finally, we also discern no basis to disturb Judge Kelly's determination that the municipal court judge's decision to schedule the case for trial in early February 2012 did not violate Judge Bookbinder's order requiring the trial court to occur in December 2011.

Affirmed.

1 The order memorializing the judge's November 18, 2011 ruling was actually entered on December 5, 2011.

2 The State dismissed the remaining charges.