STATE OF NEW JERSEY v. VANESSA NORSWORTHY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3054-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VANESSA NORSWORTHY,

     Defendant-Appellant.
____________________________

              Argued February 6, 2018 – Decided May 2, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Municipal Appeal
              No. 16-023.

              John Menzel argued the cause for appellant.

              Paula Jordao, Assistant Prosecutor, argued the
              cause for respondent (Fredric M. Knapp, Morris
              County Prosecutor, attorney; Paula Jordao, on
              the brief).

PER CURIAM

        Defendant appeals from her de novo Law Division convictions

after pleading guilty to driving while intoxicated, 
N.J.S.A. 39:4-
50, and possession of an open container in a motor vehicle,


N.J.S.A. 39:4-51b.   She argues:

          POINT I

          BOTH THE STATE AND MUNICIPAL COURT DENIED
          DEFENDANT A SPEEDY TRIAL BY FAILING TO BRING
          HER TO COURT, PARTICULARLY DURING A 313-DAY
          PERIOD OF INCARCERATION, THUS CAUSING DELAY
          SO EXCESSIVE AS TO WARRANT DISMISSAL OF THE
          COMPLAINTS.

               A.   THE EXTRAORDINARILY LONG DELAY HERE
               WEIGHS HEAVILY IN FINDING A VIOLATION OF
               DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

               B.   DELAYS IN THIS CASE ARE PRINCIPALLY
               ATTRIBUTABLE TO THE STATE AND VIOLATED
               DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

               C.   DEFENDANT DID NOT ACQUIESCE TO DELAY
               BUT RATHER REPEATEDLY ASSERTED HER RIGHT
               TO A SPEEDY TRIAL.

               D.   DEFENDANT HAS BEEN PREJUDICED BY
               DELAY, GIVEN THE ANXIETY SUFFERED IN
               WAITING FOR DISPOSITION OF THIS MATTER.

We disagree with defendant's arguments and affirm.

     Defendant was charged on February 12, 2013, with the offenses

to which she pleaded guilty.1      Her motion to dismiss the charges

on speedy trial grounds was originally scheduled in the municipal

court on September 29, 2014.    Defendant did not appear because she

had another court proceeding in Pennsylvania.        The matter was


1
  Defendant was also charged with numerous other motor vehicle
violations that were dismissed as part of a plea agreement.


                                   2                         A-3054-16T1
adjourned until October 27, 2014, on which date the judge denied

defendant's speedy trial motion and accepted her guilty plea.2

     "The right to a speedy trial is guaranteed by the Sixth

Amendment to the United States Constitution and imposed on the

states by the Due Process Clause of the Fourteenth Amendment."

State v. Tsetsekas, 
411 N.J. Super. 1, 8 (App. Div. 2009).                           "The

constitutional right . . . attaches upon defendant's arrest."

Ibid. (alteration in original) (quoting State v. Fulford, 
349 N.J.

Super. 183, 190 (App. Div. 2002)).                    Since it is the State's duty

to promptly bring a case to trial "[a]s a matter of fundamental

fairness," the State must avoid "excessive delay in completing a

prosecution" or risk violating "defendant's constitutional right

to speedy trial."      Ibid.

     The   four-part    test        to    determine         when   a   violation     of   a

defendant's    speedy-trial          rights          contravenes       due   process      —

announced in Barker v. Wingo, 
407 U.S. 514, 530-33 (1972) and

subsequently adopted by our Supreme Court in State v. Szima, 
70 N.J. 196, 200-01 (1976) — requires "[c]ourts [to] consider and

balance the '[l]ength of delay, the reason for the delay, the

defendant's    assertion       of        his       right,   and    prejudice    to     the

defendant.'"    Tsetsekas, 
411 N.J. Super. at 8 (third alteration


2
  The Law Division judge denied defendant's municipal appeal on
January 25, 2017.

                                               3                                A-3054-16T1
in original) (quoting Barker, 
407 U.S. at 530).              "No single factor

is   a    necessary   or    sufficient   condition    to   the    finding    of   a

deprivation of the right to a speedy trial."               Id. at 10.       Courts

are required to analyze each interrelated factor "in light of the

relevant circumstances of each particular case."                 Ibid.

         "These four factors are . . . applied when [a] defendant

asserts a speedy trial claim arising from delay in a municipal

court drunk driving prosecution."             Fulford, 
349 N.J. Super. at
 189; see, e.g., Tsetsekas, 
411 N.J. Super. at 8.                    We will not

overturn a trial judge's factual determination whether a defendant

was deprived of due process on speedy-trial grounds unless the

judge's ruling was clearly erroneous.           State v. Merlino, 
153 N.J.

Super. 12, 17 (App. Div. 1977).

         Our judiciary "is, as a matter of policy, committed to the

quick and thorough resolution of DWI cases."               Tsetsekas, 
411 N.J.

Super. at 11 (quoting State v. Farrell, 
320 N.J. Super. 425, 446

(App. Div. 1999)).         To that end, "[i]n 1984, Chief Justice Wilentz

issued a directive, later echoed in Municipal Court Bulletin

letters     from   the     Administrative    Office   of    the   Courts,    that

municipal courts should attempt to dispose of DWI cases within

sixty days."       Ibid. (quoting Farrell, 
320 N.J. Super. at 446-47).

         Although we have not suggested that "any delay beyond the

sixty-day goal is excessive," as "[t]here is no set length of time

                                         4                               A-3054-16T1
that fixes the point at which delay is excessive," ibid., the

delay in both the commencement and final adjudication of this case

was certainly inordinate, see id. at 11-12 (holding a delay of 344

days excessive); Farrell, 
320 N.J. Super. at 428 (holding a delay

between summons and trial completion of 663 days to be inexcusably

extensive).

     As   to   the     first    Barker   factor,   the   Law   Division     judge

recognized six hundred and twenty-two days elapsed between arrest

and disposition.        Although his finding that the municipal court

and prosecutor "were diligent in their attempts to proceed to

trial" pertains to the second Barker factor, he correctly stated

that the "relatively lengthy period of time . . . [had to] be

viewed in the context" of the other factors.

     "Barker's second prong examines the length of a delay in

light of the culpability of the parties."                Tsetsekas, 
411 N.J.

Super. at 12. "[D]ifferent weights should be assigned to different

reasons" proffered to justify a delay.             Barker, 
407 U.S.  at 531.

Purposeful     delay    tactics     weigh    heavily     against   the     State.

Tsetsekas, 
411 N.J. Super. at 12 (citing Barker, 
407 U.S. at 531).

"A more neutral reason such as negligence or overcrowded courts

should    be   weighted    less    heavily   but   nevertheless     should       be

considered      since     the     ultimate     responsibility       for       such

circumstances must rest with the government rather than with the

                                         5                                A-3054-16T1
defendant."    Barker, 
407 U.S.  at 531.         "[A] valid reason, such as

a missing witness, should serve to justify appropriate delay."

Ibid.     And, "[d]elay caused or requested by the defendant is not

considered to weigh in favor of finding a speedy trial violation."

Farrell, 
320 N.J. Super. at 446.

     Although the record does not present us with a complete

history, we discern defendant, following her arrest for this

offense, was incarcerated on unrelated charges during the periods:

February 13, 2013 to March 8, 2013 in Somerset County; April 9,

2013 to May 29, 2013 in Somerset County; May 29, 2013 to June 26,

2013 in Sussex County;
3 June 26, 2013 to July 2, 2013 in Montgomery

County,    Pennsylvania;   August   4,   2013    to   August   14,   20134   in

Somerset County; and August 28, 2013 to June 30, 2014 in Somerset

County.

     On two dates when defendant was incarcerated — February 20,

2013 and August 28, 2013 — she failed to appear for scheduled

court hearings.     We cannot attribute those delays to the State


3
 The State's brief indicates defendant was incarcerated in Sussex
County on May 29 but released from Somerset County on June 26.
Based on our review of the New Jersey County Correction Information
System Inmate Lookup List appended to the State's brief, we believe
defendant was incarcerated in Sussex County.
4
 The State's brief sets this date as August 24. Again, our review
of the Inmate Lookup List and defendant's brief lead us to believe
the correct date is August 14.


                                    6                                 A-3054-16T1
because there is nothing in the record to show that the court or

the prosecutor had prior notice she was incarcerated so as to

impose an obligation to secure her appearance.

       During defendant's last period of incarceration beginning

August 28, 2013, the municipal court made numerous attempts to

secure defendant's presence in court. A case management conference

was held in municipal court on August 28, 2013 and, as per

defendant's brief, an order to produce issued.
5 On September 4,

2013, the municipal court requested the Law Division to issue an

order compelling the Somerset County jail to produce defendant for

a September 25 court hearing; that order was reportedly retracted

by a Law Division judge.6    The municipal court sent another order

on September 12, 2013 to produce defendant.      During the October

27, 2014 speedy trial motion in municipal court, defendant's

counsel argued that the municipal police department was willing

to transport defendant from the Somerset County jail during her

last period of incarceration, but the jail "would not release her

and would not allow her to come and answer for those charges."

       The Law Division judge acknowledged defendant's claim "that

the Somerset County Sheriff's Office was a significant cause of


5
    We were not provided with a copy of a transcript for that date.
6
  We did not receive a copy of that order. Nor do we perceive
from the record the reason the order was retracted.

                                  7                         A-3054-16T1
the delays," but concluded the delays – that he found "attributable

to the State" – did "not weigh heavily against the State" because

          nothing indicates, and the [d]efendant does
          not assert, that the delays were the result
          of purposeful obstruction or hesitation by the
          [m]unicipal [c]ourt or [p]rosecutor. In fact,
          as the [d]efendant's brief explains, "[t]he
          public defender noted how [defendant's] case
          had been listed [fifteen] times and how,
          despite the willingness of local officials to
          proceed with the case, efforts to bring
          [defendant] to court have been frustrated by
          [s]tate action via the Somerset County
          Sheriff."

     We previously held the fact a "defendant is incarcerated

cannot in and of itself justify a denial of speedy trial.     Writs

may be sent to facilities where a defendant is incarcerated for

purposes of bringing him [or her] to trial."     State v. McNamara,


212 N.J. Super. 102, 105 (App. Div. 1986).     And we fully cognize

it was the court's obligation to secure defendant's presence in

court despite the recalcitrant Sheriff's Office.       Our Supreme

Court, in State v. Garcia, 
195 N.J. 192, 204-05 (2008) (alterations

in original), declared:

          Ultimately, the court is responsible for
          ensuring that its duly issued orders are
          honored. To that end, the court is armed with
          the   power   to   hold   those   in   willful
          disobedience of its commands in contempt. See
          
N.J.S.A. 2A:10-1(c) (permitting punishment
          for contempt in case of "[d]isobedience or
          resistance by . . . any person whatsoever to
          any lawful writ, process, judgment, order, or
          command of the court"); 
N.J.S.A. 2A:10-6

                                8                           A-3054-16T1
          (defining penalty for "[a] sheriff or other
          officer to whom any writ, process, judgment
          or order of the Superior Court is directed or
          delivered, who shall be adjudged in contempt
          of the court for failure to make return
          thereof or thereto").

     Notwithstanding the court's failure to compel defendant's

production after her incarceration in Somerset County on August

28, 2013, we note defendant, on October 2, 2013, requested the

municipal court recall her detainer and allow her to appear "as

soon as [her] release date [from the county jail was] scheduled."7

Thus, contrary to defendant's present argument that the ten-month

delay during her last incarceration in Somerset was attributable

to the State, the period of delay attributable to the State was

only approximately one month until October 2.8

     Further, there is no evidence in the record – except for the

period of incarceration beginning on August 28, 2013        – that

defendant informed the court or the State that she was in any of




7
  The Law Division judge said a public defender also requested the
court to recall the detainer on October 21, 2013. We do not see
that request in the record.
8
  Despite defendant's request for a court date after her release
from jail, on October 22, 2013, the municipal court – according
to the Law Division judge – rescheduled the court date for November
27, 2013 and issued "a [w]arrant" to effect defendant's transfer
from Somerset County jail to Morris County jail; our record is
barren of those actions, and of the results, if any, thereof.

                                9                           A-3054-16T1
the multiple jails – in New Jersey and Pennsylvania — in which she

was housed.

      We also consider that defendant failed to appear on March 20,

2013; she was not in jail and the municipal court issued a bench

warrant for her arrest.      That delay was attributable to her, as

was the adjournment granted at her request after her release from

jail so she could enter a halfway house in late July 2014.              The

Law   Division    judge   found   the    adjournment   request   indicated

defendant would not be available "for about a month after her

admission to the facility"; the case was adjourned to August 25,

2014.   Finally, defendant failed to appear on September 29, 2014,

the date the municipal court heard counsel's motion to dismiss,

because she had to appear in a Pennsylvania court; the municipal

court judge reserved on the speedy trial motion until October 27,

2014.

      Based on our careful review of these facts, we cannot agree

with defendant's assertion that the reasons for the delays in

resolving this case "weigh heavily against the State."

      We note in analyzing the third Barker factor, a defendant's

assertion of the right to a speedy trial need not be "by way of

formal motion."    State v. Smith, 
131 N.J. Super. 354, 363-64 (App.

Div. 1974), aff'd o.b., 
70 N.J. 213 (1976).            A defendant's mere

comments that he or she was "'ready for trial' and 'wanted it to

                                    10                             A-3054-16T1
occur sooner rather than later'" are sufficient assertions of a

defendant's speedy-trial right.             State v. May, 
362 N.J. Super.
 572, 597 (App. Div. 2003).             A court may also consider "the

frequency    and   force    of   the    [defendant's]     objections"      when

assessing   whether   the    defendant      properly   invoked   the    right.

Barker, 
407 U.S.  at 529.

     The Law Division judge found defendant formally moved for a

speedy trial on September 29, 2014 – five hundred and ninety four

days after her arrest.       There is no evidence defendant asserted

her speedy trial rights while she was incarcerated; nor did

defendant seek a trial date or dismissal.              Her only request, on

October 2, 2013, was for discovery.

     The fourth prong of the Barker test considers the prejudice

to a defendant caused by delay. "[P]roof of actual trial prejudice

is not 'a necessary condition precedent to the vindication of the

speedy trial guarantee.'"        Tsetsekas, 
411 N.J. Super. at 13-14

(quoting Merlino, 
153 N.J. Super. at 15).           Although the delay may

not prejudice a

            defendant's liberty interest or his [or her]
            ability to defend on the merits[,] . . .
            significant prejudice may also arise when the
            delay causes the loss of employment or other
            opportunities, humiliation, the anxiety in
            awaiting disposition of the pending charges,
            the drain in finances incurred for payment of
            counsel or expert witness fees and the "other
            costs and inconveniences far in excess of what

                                       11                              A-3054-16T1
           would   have  been   reasonable     under     more
           acceptable circumstances."

           [Id. at 13 (quoting Farrell, 320 N.J. Super.
           at 452).]

The impairment of an accused's defense is considered "the most

serious since it [goes] to the question of fundamental fairness."

Szima, 
70 N.J. at 201.

       We find unpersuasive defendant's contention that she was

prejudiced by the long passage of time resulting in the "fear that

recollections of witnesses will be clouded or compromised."          The

only    witness   defendant   specifies   is   herself   who,   despite

allocating a factual basis for her guilty plea, "could recall

neither where she had been drinking nor how much she had consumed."

While defendant cannot say whether her lack of recall was due to

the passage of time or her inebriated state, she points to no

specific facts that she cannot recall that would be relevant and

material to her defense of the charges.

       The Law Division judge found defendant was not incarcerated

on these charges, and that there was "no evidence of or allegation

that the defendant incurred excessive costs"; nor did she claim

"the delays caused a loss of employment or any type of humiliation

or anxiety." He concluded "any weight afforded to the final Barker

factor is minimal."    We agree.




                                   12                           A-3054-16T1
     Balancing the four Barker factors, that are "related factors

to be considered with such other circumstances as may be relevant,"

ibid., we do not find the Law Division's denial of defendant's

speedy-trial application to be erroneous.    Without question, the

delay in adjudicating this case was much too long. But considering

the reasons for most of the adjournments, the delays caused by

defendant, the late assertion of her rights, and the lack of

prejudice suffered by defendant, we conclude there was no violation

of defendant's constitutional speedy-trial right. Dismissal of

this case is not warranted.

     Affirmed.




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