STATE OF NEW JERSEY v. DARIUS SMITH

 

NOT FOR PUBLICATION WITHOUT THE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-Appellant/

Cross-Respondent,

v.

DARIUS SMITH,

Defendant-Respondent/

Cross-Appellant.

_________________________________

September 9, 2015

 

Argued April 9, 2014 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-09-0169 and 04-10-0033.

Carol M. Henderson, Assistant Attorney General, argued the cause for appellant/

cross-respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Henderson, of counsel and on the brief).

Michele A. Adubato, Designated Counsel, argued the cause for respondent/cross-appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Adubato, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On September 30, 2004, an Essex County grand jury returned a seven-count indictment, charging defendant with second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 (count one); second-degree official misconduct, N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6 (count two); third-degree theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6 (count three); two counts of third-degree tampering with public records or information, N.J.S.A. 2C:28-7a(1), (2) and N.J.S.A. 2C:2-6 (counts four and five); and two counts of fourth-degree falsifying records, N.J.S.A. 2C:21-4a and N.J.S.A. 2C:2-6 (counts six and seven).

On March 14, 2012, almost eight years after the Grand Jury returned the indictment, defendant filed a motion to dismiss the indictment on speedy trial grounds. The court denied defendant's motion on April 19, 2012. Pursuant to N.J.R.E. 803(a)(1) and State v. Gross, 121 N.J. 1 (1990), the trial court conducted a hearing to determine the admissibility of prior inconsistent statements made by defendant's co-conspirator, Lawrence Furlow. After considering the arguments of counsel and the evidence presented, the court admitted the statements. Defendant was thereafter tried before a jury over seven days starting on April 26, 2012 and ending May 11, 2012.

The jury found defendant guilty of second-degree conspiracy; third-degree official misconduct as a lesser-included offense of second-degree official misconduct; and a disorderly persons offense of theft under $200, as a lesser-included offense of third degree theft. The jury acquitted defendant of the remaining counts in the Indictment.

Following the jury s verdict, defendant moved for a new trial, arguing the trial court improperly limited the scope of defense counsel s cross-examination. The court denied the motion. However, the judge granted defendant s application to downgrade the second degree conspiracy conviction to a third degree offense. The trial judge reasoned that the jury s verdict finding defendant guilty of third degree official misconduct, as defined in N.J.S.A. 2C:30-2b,1 indicated the jury found defendant obtained a pecuniary benefit from his misconduct worth less than $200. Relying on N.J.S.A. 2C:5-4a,2 the trial judge found the conspiracy to commit official misconduct must be graded as a crime of the same degree as the crime which is the object of the conspiracy.

At the sentencing hearing, the court merged the disorderly persons theft and the third degree conspiracy to commit official misconduct convictions with the conviction for third degree official misconduct. The judge sentenced defendant to a three-year term of probation, ordered him to pay a $5000 fine, and imposed all of the mandatory fees and penalties.

The State appeals the trial court s decision to downgrade the jury s verdict finding defendant guilty of second degree conspiracy to commit official misconduct to a third degree offense. Defendant cross-appeals,3 challenging his conviction and the sentence imposed by the trial court. Based on the record developed before the trial court, and reviewing the arguments presented by the parties, we affirm.

I

In 2004, the Attorney General s Office began to investigate allegations of police misconduct involving defendant and at least four other City of Newark Police Officers. The investigation began after the Internal Affairs of the Newark Police Department received a complaint of theft against defendant from Rosalyn Johnson, the sister of a man who had been arrested. Leonard Griffin filed a second complaint against defendant a few weeks later. These complaints prompted the Attorney General's Office to assume control over the investigation.

As the events unfolded, the investigation implicated three other Newark Police Officers: Tyrone Dudley, Ismeal Lespier, and Lawrence Furlow, who was known as "Hightower."4 Newark Police Lieutenant Umar Abdul Hakeem testified as a witness for the State. Lieutenant Hakeem was a twenty-four year veteran of the Newark Police Department and had been assigned to the Office of Professional Standards for the past thirteen years. He had been conducting the investigation with the assistance of his former partner, Sergeant William Thomas, and Joseph Waters from the Division of Criminal Justice. In April 2004, Sergeant Thomas retrieved all "pertinent police reports, incident reports, arrest reports and property sheets regarding the [Griffin] complaint."

Lieutenant Hakeem spoke with Griffin directly, who provided his version of what allegedly occurred. Hakeem thereafter attempted to corroborate Griffin s account of the events by interviewing other witnesses. Griffin told Hakeem that he had spoken with Officer Tyrone Dudley in Internal Affairs who told him "he was going to make this matter right." Lieutenant Hakeem testified he met with Dudley on April 19, 2004 and told him he was aware of his "actions in that he had violated the rules and regulations [of the Newark Police Department], that he was also involved in official misconduct." Hakeem testified that Dudley agreed to cooperate with the investigation and provided a video-recorded statement in which he used the phrase "we ate well" to describe how he and the other officers "took money from the defendants that they arrested and they kept the money and/or they used [the] money to eat lunch."

Dudley also testified as a witness for the State at defendant's trial. He claimed the first time he committed an act of misconduct as a police officer was in 2003. Dudley explained how he and his partner, Lespier, would sometimes share "proceeds stolen from suspects" with defendant and his partner, Furlow. Dudley estimated he and the officers he named did this "[a]pproximately 25, 30 times." When asked by the prosecutor how much money was involved, Dudley responded: "Close to eight, nine, ten thousand dollars." According to Dudley, when they took money from a suspect, they would decide how much of it would be reported as evidence before returning to the precinct to write the reports.

They followed the same approach when the distribution involved a large amount of drugs seized from a drug dealer. They would "shave some of the drugs off the arrest . . . [and] divert that to a stash bag." Other times, they would merely steal drugs from the dealers without arresting them. They put the stolen, unreported drugs into the stash bag; they used this contraband to plant drugs on other suspects in order to justify arresting them. Dudley testified the officers would plant these drugs on suspects they did not like or on those who had eluded apprehension in a previous unrelated encounter.

Lynnell Brown also testified as a witness for the State. He was thirty-six years old and had been incarcerated for three years on a federal charge of bank robbery. He had pleaded guilty to this charge, but had not been sentenced by the time he testified at defendant s trial on April 26, 2012. Although the State had not promised him anything in return for his testimony, his "understanding" was the State s Attorney General Office would send the federal judge a "letter stating that I was here giving the testimony."

Brown testified about a series of incidents involving defendant that occurred in April 2003, on Martin Luther King Boulevard in Newark. Brown admitted he was at this location on that date "selling drugs." Brown sold cocaine out of a building located on Martin Luther King Boulevard. Although he did not live there in 2003, he used to live in that area; his mother still lived there in 2012. Brown testified defendant and three other Newark Police Officers approached him outside of the building on three separate occasions in April 2003. According to Brown, the officers took his money, but did not submit all of it into evidence. Defendant also took a set of keys from Brown so he would be able to reenter the building at a later time. This occurred on April 12, 2003.

Brown testified to having "two more interactions" with defendant thereafter. Brown testified he was selling cocaine at this same location on April 16, 2003. Defendant arrested him that day and charged him with possession of heroin. When asked where the heroin came from, Brown testified

Officer Red went inside the building, searched around and I don t know, I guess he got it out of the building, I don t know where it came from, it wasn t mine.

Q. Did you ever find the cocaine that you were selling that day?

A. No, they didn t because after I bailed out, the cocaine that I had stashed in the building was still in my stash.

Brown admitted to being a cocaine dealer. However, defendant twice arrested Brown for selling heroin. Brown claimed defendant planted the heroin on him. Brown admitted to selling heroin in 1995. He emphasized that from his perspective, it did not matter which illicit substance he was selling. Cocaine and heroin carried the same penal risk of incarceration. According to Brown, defendant made clear to him "he didn't care, any time he saw me outside, any time no matter who I was with, . . . he was going to lock me up." He decided to file an Internal Affairs complaint against defendant after the third incident of abuse.

I have no reason to lie on this officer just to make up a story, go to Internal Affairs. I am selling drugs, so for me to go to Internal Affairs, listen, my name is Lynnell Brown, I am here selling drugs each and every day at this location. Just to give them information like this is suicide for a drug dealer. Why would I do that? It makes no sense.

I went and told the police, look, I sell drugs. I sell cocaine here and this guy did - - these officers are doing something wrong. So please, they re harassing me and locking me up for something I didn t do. Who would I go to I.A. and make up a story and expose myself to the police like that? It makes no sense.

Q. So when did you file the I.A. complaint against defendant? How many incidents were there before you filed that complaint?

. . . .

A. The third time when he came back and he threatened me and told me, "Listen, I don t who you with [sic] whoever, wherever, I see you with your grandmother or whatever." That s when I said "Okay, this is out of control. I have to do something."

My only alternative was to go let I.A. know what was going on.

Dudley also testified about stealing from a drug dealer named El-Amin Muhammad. On July 31, 2003, defendant and the other officers decided to stop Muhammad because he was known to carry large sums of money on his person. As the officers approached, Muhammad fled in his Land Rover. The officers immediately pursued in their own two cars. Muhammad pulled over momentarily, but then fled again causing his vehicle to flip over. Defendant and the other three officers detained Muhammad. Dudley testified defendant personally searched Muhammad s car and seized drugs and approximately $3500 in cash. Defendant placed the contraband evidence he found in Muhammad s car in a cigar box.

Dudley testified they called an ambulance to check the extent of Muhammad s injuries. While waiting for the ambulance to arrive, Dudley testified Muhammad kept yelling profanities at them: "All you want is my thirty-five hundred dollars." Dudley stated Muhammad continuously yelled at them using profanities saying: "You can keep it, I don t need it." There was so much money that the cigar box would not close. The officers escorted Muhammad to the hospital, where defendant went to the bathroom with the cigar box full of money. He came out with a closed box, and handed it to Dudley. The incident reports stated only $546 was recovered from Muhammad.

On January 21, 2004, Dudley and defendant went to an apartment building on Martin Luther King Boulevard. Once inside the building, they split up looking for Leonard Griffin and Larry Shipman. Dudley arrested a man he encountered who had a bag of heroin on his person. He let the suspect go when defendant called for his assistance to handle Griffin and Shipman. A search of both men revealed nothing other than a set of car keys, which defendant took from Griffin and used to illegally search his car.

Thereafter, defendant and Dudley returned inside the building where the suspects were located. They were both standing in front of an apartment. Although the officers had not found any evidence of illegal activity or contraband, they suspected Griffin and Shipman had the drugs hidden inside the apartment. Dudley testified defendant "advised the young lady that had children in the apartment if she didn't let us in we would notify D.Y.F.S.5 that she was carrying illegal drugs in her apartment." In response to this threat, the woman allowed the officers into the apartment. Without legal grounds to enter or search this dwelling unit, defendant and the other officers searched the apartment and found "120 vials of cocaine." Defendant and his cohorts arrested Griffin and Shipman for possession of cocaine. They reported the suspects had the cocaine in their hands at the time of arrest. The report did not mention anything about the searches of the apartment or the vehicle.

On February 21, 2004, a few weeks after this incident, Dudley testified he, defendant, and another officer arrested Santos Miranda for "possession of a handgun and narcotics." The officers took a set of keys from Miranda and detained him while they "went from door to door in an attempt to find out if Mr. Miranda lived in one of the houses in the area." After trying the key in nearly twenty homes, they found the correct one and entered. Hector Gonzalez, Miranda's brother, was inside the home and told the officers to leave. The officers ignored Gonzalez s legitimate demands for them to leave and searched the home without Gonzalez s consent. They found a handgun and illicit drugs in Miranda's closet. According to Dudley, they seized the handgun and placed it in their "stash bag" so they could use it "[i]n the event that at a later date we come across a suspect or someone that we had a vendetta against, we would place it on them."

On March 10, 2004, defendant and Dudley decided to target a well-known drug area. They observed a woman come out of a building with "several envelopes of heroin." Following an ostensible traffic stop, the woman gave them the drugs and provided information about what had taken place inside the building. The officers went into the building, determined which apartment was being used as a distribution point for illicit drugs, and told a juvenile (presumably a child under the age of eighteen) they would plant drugs on him if he did not knock on the door. As Dudley described it, the juvenile knocked on the door, a young woman answered, and the officers "pushed [their] way in."

Ingrid Hutchinson was the young woman inside the apartment; she was there with her mother. Without a search warrant, lawful consent, or exigent circumstances supported by probable cause, defendant searched the apartment for twenty to thirty minutes before finding a quantity of heroin and approximately $5000 in cash. Defendant and Dudley arrested Hutchinson, took approximately $2000 each, and gave a small amount back to Hutchinson's mother. On the police report, the officers stated Hutchinson came to the door with narcotics in her hand; they were able to recover only $822.

The following month, Internal Affairs investigators conducted a consent search of Dudley's police-issued locker; they found the "stash bag" containing keys, narcotics, and the handgun taken from Miranda's closet on February 8, 2004. Dudley pled guilty to third-degree conspiracy to commit official misconduct. He was sentenced to a term of probation and was placed in a witness relocation program. Former Officer Furlow provided Internal Affairs with a tape-recorded statement in which he admitted to receiving money from defendant that was originally taken from suspects.

The State opted to try Furlow first. After two trials spanning over several years that resulted in two hung juries, the State granted Furlow use-immunity and compelled him to testify in defendant s trial. However, Furlow denied his involvement and claimed the police had threatened him with jail time if he refused to say what they wanted. The trial judge addressed this issue in a Gross hearing.

II

The State argues on direct appeal that the trial judge erroneously downgraded defendant's second degree conspiracy conviction to a third degree offense, improperly disregarding the jury s verdict finding defendant guilty of second degree conspiracy to commit official misconduct. The offense of official misconduct is defined as follows

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit

. . . .

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree. (Emphasis added).

[N.J.S.A. 2C:30-2]

The trial judge instructed the jury on the offense of official misconduct using the Model Charge. He specifically stated: "Here the State alleges the unlawful theft of monies from alleged drug dealers." He did not instruct the jury that the State had alleged any other, non-pecuniary benefits. The State did not object at the charge conference, during the judge s delivery of the charge, at the completion of the charge, or before the jury began deliberating. At the end of the instruction, the judge included the final section, which includes the following instructions: "IF THE STATE ALLEGES THAT THE BENEFIT IS PECUNIARY . . . you must determine the fair market value of the benefit involved." Model Jury Charge (Criminal), "Official Misconduct" (2006). The State did not object.

The verdict sheet read as follows

1. As to Count One, Conspiracy to Commit Official Misconduct, a crime of the second degree (2 ), how do you find?

. . . .

2. As to Count Two, Official Misconduct, how do you find?

. . . .

If your verdict is guilty, what is the amount of the benefit obtained or sought to be obtained? (Emphasis added).

The jury responded "guilty" to questions one and two, and "less than $200" with regard to the benefit. The inclusion of the language "or sought to be obtained" directs the jury to determine whether defendant conspired to commit official misconduct of the third degree, that is, to obtain a pecuniary benefit of less than $200. The jury found defendant guilty of third degree official misconduct.

"[C]onspiracy is a crime of the same degree as the most serious crime which is attempted." State v. Dixon, 396 N.J. Super. 329, 342 (App. Div. 2007) (citing N.J.S.A. 2C:5-4a). The offense of conspiracy requires neither actual commission of the planned offense nor any other unplanned completed act. See State v. Hardison, 99 N.J. 379, 383 (1985) ("[T]he law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order, therefore permitting the imposition of criminal sanctions for the agreement alone. . . ."). Where a defendant is convicted of conspiracy to commit an offense and the completed offense or a lesser-included completed offense, the conviction for the completed offense merges with the conviction for conspiracy to commit the offense. See State v. Connell, 208 N.J. Super. 688, 695 (App. Div. 1986) (holding that a conviction for conspiracy to commit murder merges with aggravated assault under N.J.S.A. 2C:1-8(a)(1) and (d)(3)).

Official misconduct is generally a crime of the second degree. N.J.S.A. 2C:30-2. There is an exception, however, for official misconduct which involves only a pecuniary benefit valued at less than $200. Ibid. In such cases, the offense is of the third degree. Ibid. If the official misconduct involves both pecuniary and non-pecuniary benefits, the offense remains one of the second degree. State v. Lake, 408 N.J. Super. 313, 322-23 (App. Div. 2009).

In Lake, the prosecutor was not required to prove a pecuniary benefit over $200 to establish second-degree official misconduct because there was an obvious non-pecuniary benefit sought. Ibid. Here, the State relies on Lake in support of its argument that defendant conspired to commit second-degree official misconduct. In adopting this position, the State mischaracterizes the judge's instruction with regard to "non-pecuniary predicate acts," and asserts that defendant's acts of "tampering with public records and falsifying records" were non-pecuniary acts sufficient to warrant a second-degree conspiracy conviction. Those acts, however, were relevant only to the other counts contained in the Indictment, of which defendant was ultimately found not guilty.

While the State presented evidence that defendant also sought a non-pecuniary benefit, the trial judge s interpretation of the law as it pertains to these facts was correct. The State did not specifically allege that defendant received some non-pecuniary benefit. More importantly, the State did not object when the judge failed to include such an allegation in the jury charge. Defendant's conviction for conspiracy must be graded the same as the most serious crime attempted. Here, the jury found the most serious crime was third degree official misconduct. Accordingly, the trial judge properly downgraded the conspiracy conviction to match the official misconduct offense.

III

Defendant has filed a cross-appeal in which he raise the following arguments.

POINT I

THE DENIAL OF DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS FOR A DELAY OF MORE THAN 7 YEARS SHOULD HAVE BEEN GRANTED.

POINT II

THE LIMITATION ON THE DEFENSE CROSS-EXAMINATION OF CERTAIN WITNESSES BY THE COURT DENIED THE DEFENDANT HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT III

IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S MOTION FOR MISTRIAL FOR LIMITING HIS CROSS-EXAMINATION OF KEY WITNESSES.

POINT IV

CERTAIN STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT V

THE DEFENDANT'S NEW TRIAL MOTION SHOULD HAVE BEEN GRANTED FOR THE STATE'S KNOWING PRESENTATION OF THE TESTIMONY OF A WITNESS WHO FAILED A POLYGRAPH.

We reject these arguments and affirm defendant s conviction and sentence. We will first address defendant s argument in Point I concerning his right to a speedy trial.

Defendant argues the trial court erred in denying his motion to dismiss the indictment on speedy trial grounds. Specifically, defendant argues a delay of over seven years between the Grand Jury s Indictment and the prosecution of those charges is "presumptively prejudicial." He further maintains the trial court erred in finding there were legitimate reasons for the delay, and the State did not purposefully prejudice defendant s rights.

In State v. Cahill, 213 N.J. 253, 258 (2013), our Supreme Court reaffirmed that the four-factor balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial in all criminal and quasi-criminal matters. The Court in Cahill also emphasized the rules it has adopted to govern "the prompt disposition of criminal charges without resorting to a specific deadline." Cahill, supra, 213 N.J. at 268-269. For instance, Rule 3:25-2 empowers a defendant who has been unable to post bail and remains "in custody after indictment for at least ninety consecutive days to move for a trial date." Ibid. Rule 3:25-3 authorizes a court to dismiss a charge based on an "unreasonable delay [by the State] in presenting [such] a charge to a grand jury or in filing an accusation against a defendant who has been held on a complaint." Ibid.

The first factor to be considered is the length of the trial delay. The Court in Barker held that in certain cases, the length of delay may cross the threshold between ordinary and "presumptively prejudicial" and trigger the need to engage in the balancing test. Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Such an inquiry is "dependent upon the peculiar circumstances of the case." Ibid. Thus, a longer delay may be tolerated where it is the result of "the complexity of the subject matter of the case" and not the prosecution's attempt to impair the defendant's right to defend. State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div. 2002) (seventeen-month delay not unreasonable due to the "complexity of the subject matter of the case"); see also Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 (noting as an example that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge").

With regard to the second factor, "different weights should be assigned to different reasons" for the State's delay. Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Deliberate delays intended to prejudice the defendant will weigh heavily against the State. Ibid. Neutral delays, such as scheduling, are considered against the State but carry less weight than intentional delays. Ibid. Valid reasons, however, "such as a missing witness, should serve to justify appropriate delay." Ibid. (emphasis added).

The third factor considers if and when the defendant asserted his right to a speedy trial. A defendant is under no obligation to do so, as it is the State's "responsibility to prosecute cases in a timely fashion." Cahill, supra, 213 N.J. at 266 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). However, in assessing the prejudice to defendant caused by the delay, the court may consider whether he asserted this right because

[t]he more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. [F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

[Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117-18.]

The fourth factor, prejudice to the defendant, "is assessed in the context of the interests the right is designed to protect." Cahill, supra, 213 N.J. at 266. Those interests include "oppressive pretrial incarceration, anxiety and concern of the accused and impairment of the defense. Of [those], impairment of the defense [is] considered the most serious because it [goes] to the question of fundamental fairness." State v. Szima, 70 N.J. 196, 201 (1976).

Here, defendant asserts the trial judge improperly denied his motion to dismiss the Indictment. Following oral argument on defendant's motion, the judge delivered a well-reasoned oral decision, which tracked the four factors established in Barker. The judge found the length of delay to be "uncommonly long and . . . attributable to the [S]tate's efforts to prosecute Furlow" first. Assuming seven years to be presumptively prejudicial, the judge properly considered the remaining factors to reach a sustainable result.

The judge determined the State's reasons for the delay were "legitimate" and largely attributable to inability of the juries to reach a unanimous verdict in the "two time-consuming" Furlow trials and the unavailability of Furlow's counsel during that time. He gave significant weight to the fact that defendant did not advance any reasons for his own delay in filing a motion compelling the State to proceed to trial or face the remedy of dismissal as a sanction for violating his constitutional right to a speedy trial. Ultimately the judge determined

there isn't a scintilla of evidence to suggest that the [S]tate's alleged procrastination was purposeful in the sense that it was designed to prejudice the defense. . . . [T]he speedy trial right was designed to avoid (1) oppressive pre-trial incarceration, (2) anxiety and concern of the defendant, and (3) the possible impairment of defendant's case. . . . Here, defendant was not incarcerated during this time and has established no impairment of his ability to defend himself. In sum, there is no violation of defendant's right to a speedy trial in this matter.

Defendant raises the same arguments on appeal, that the trial judge found wanting in denying his motion to dismiss. We discern no legal reason to disagree with the judge s analysis and ultimate conclusion. Defendant waited nearly seven years to assert his right to a speedy trial, arguing his failure to assert his right does not constitute a waiver. Although we agree that waiting seven years does not constitute a waiver on defendant s part, we also agree with the trial court s conclusion that this delay weighs against him and in favor of the State.

Finally, defendant asserts that the trial court erred in finding that no prejudice was caused by the delay. Specifically, defendant points to his "anxiety and uncertainty of pending charges . . . suspen[sion] from his job as a Newark police officer" and his inability to "continue with his employment or a career in law enforcement." Based on the record developed before the trial court, we reject this argument as facially without merit.

The State s delay under these circumstances was justified. It had a legitimate reason for choosing to prosecute Furlow before defendant. Unfortunately, the trials against Furlow were lengthy due to many scheduling conflicts outside of the State's control. Following the second mistrial, the State made the decision to go forward with defendant s trial. There is nothing to suggest the delay was deliberate or intended to prejudice defendant. While defendant is not obligated to assert his speedy trial right, the fact that he waited seven years to do so does weigh heavily against him. See Baker, supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117-18.

The remaining arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge.

Affirmed.

1 Under N.J.S.A. 2C:30-2b,

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit

. . . .

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree. (Emphasis added).

2 N.J.S.A. 2C:5-4a provides, in relevant part

[A]n attempt is a crime of the same degree as the most serious crime which is attempted, and conspiracy is a crime of the same degree as the most serious crime which is the object of the conspiracy; provided that, leader of organized crime is a crime of the second degree.

3 The State is denoted as appellant because it filed its notice of appeal on August 16, 2012; defendant is characterized as cross-appellant because he filed his notice of appeal on September 19, 2012.

4 Defendant s nickname in the Department was "Red," because of the color of his hair.

5 D.F.Y.S. stood for "Division of Youth and Family Services," the name of the State s child welfare agency at the time.