STATE OF NEW JERSEY v. MILAN SHAH

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0900-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MILAN SHAH,

     Defendant-Appellant.
______________________________

                    Argued November 6, 2019 – Decided November 26, 2019

                    Before Judges Yannotti and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Municipal Appeal No. 18-
                    15.

                    Greggory M. Marootian argued the cause for appellant.

                    Natacha Despinos Peavey, Assistant Prosecutor, argued
                    the cause for respondent (Michael H. Robertson,
                    Somerset County Prosecutor, attorney; Natacha
                    Despinos Peavey, of counsel and on the brief).

PER CURIAM
       Defendant Milan Shah appeals from his conviction for driving while

intoxicated (DWI),  N.J.S.A. 39:4-50. The court sentenced defendant to a ninety-

day license suspension, imposed applicable fines and costs, and required

defendant to spend twelve hours at the Intoxicated Driver Resource Center. For

the reasons that follow, we affirm.

                                       I.

       On October 9, 2016, New Jersey State Trooper Harris observed defendant

failing to maintain lanes on Interstate 78 westbound in Warren Township.

Trooper Harris effectuated a motor vehicle stop and detected the odor of alcohol

first emanating from the interior of the vehicle, then on defendant's breath.

Defendant admitted having a couple of beers that night. His speech was slow.

A series of field sobriety tests were conducted by Trooper Harris on defendant.

He swayed and was unable to perform the Walk and Turn Test or the One-Leg

Stand Test.

       Trooper Harris noticed defendant's eyes were bloodshot. He was unable

to perform the Horizontal Gaze Nystagmus Test. Defendant was arrested for

DWI,  N.J.S.A. 39:4-50, and brought to the processing area, where he was

informed of his Miranda rights,1 advised of his obligation to provide breath


1
    Miranda v. Arizona,  384 U.S. 436 (1966).
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                                       2
samples, and read the Attorney General's Standard Statement For Motor Vehicle

Operators,  N.J.S.A. 39:4-50.2(e).

      When asked to submit samples of his breath for testing, he initially agreed

but later refused. An Alcotest was administered but defendant did not provide

the minimum volume of air necessary to perform the test.

      Defendant was charged with DWI; failing to consent to provide breath

samples,  N.J.S.A. 39:4-50.2; refusing to submit to a breath test,  N.J.S.A. 39:4-

50.4(a); failing to maintain a lane of travel,  N.J.S.A. 39:4-88(b); and careless

driving,  N.J.S.A. 39:4-97.

      On October 17, 2016, defendant pled not guilty, served an initial discovery

request, and demanded a speedy trial. The matter was scheduled for November

29, 2016, but adjourned until January 3, 2017 because defendant wanted to retain

an expert.   A defense expert report was not served by January 3, 2017,

necessitating another adjournment to January 10, 2017.

      By consent, the parties agreed to adjourn the trial until February 21, 2017,

to discuss a possible resolution. The February 21, 2017 trial date was postponed ,

at defendant's request, because he wanted to review the State's plea offer with

his immigration attorney and his expert report had not yet been served. The trial

was rescheduled to March 24, 2017.


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       The March 24, 2017 trial date had to be adjourned because Trooper Harris

was involved in a car accident and was unable to appear. The matter was

tentatively rescheduled for May 16, 2017, but had to be adjourned because the

court had an older DWI case to try that day. Trooper Harris was unavailable

until September 2017. Defense counsel served a second medical expert report

on June 7, 2017. The first firm trial date assigned was September 5, 2017. Prior

to that date, the municipal prosecutor advised defense counsel that Trooper

Harris was deployed on assignment by the National Guard and was unavailable

to testify.

       Defendant moved to dismiss on speedy trial grounds but the motion was

denied. The matter was rescheduled for September 29, 2017, and adjourned at

defendant's request because his experts were unavailable to testify that day. The

trial was relisted for October 31, 2017. Defendant renewed his motion to

dismiss, but no ruling was made at that time.

       Prior thereto, the municipal prosecutor informed defense counsel that

Trooper Harris was on active deployment in Puerto Rico to assist with Hurricane

Maria relief efforts. The judge adjourned the trial, noting this was a justifiable

cause. Another trial date was not assigned for the next two months because the

presiding municipal judge was not reappointed. On February 6, 2018, the acting


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                                        4
municipal judge rescheduled the matter for March 27, 2018, before the newly

appointed judge, who in turn assigned an April 10, 2018 trial date.

       Defendant again moved to dismiss. The municipal court judge denied the

motion, noting delays were attributable to both defendant and the State, and

defendant was not prejudiced by the 545-day delay.2 Further, defendant's Visa

did not expire until the end of 2019, providing him with "over a year and a half

to address any Visa concerns."       On April 10, 2018, defendant entered a

conditional plea of guilty to DWI, and the State agreed to dismiss the other

charges.

       Thereafter, defendant appealed to the Law Division. Following a hearing

de novo, the Law Division judge found that length of the delay was only one

factor to consider and denial of defendant's motion to dismiss was proper. In

his written statement of reasons, the Law Division judge found "the delays were

ultimately explainable, attributable to both parties, and resulted in no prejudice

to . . . defendant." The judge also explained that:

             [d]efense [counsel] requested two month long
             adjournments so that [he] could obtain expert witnesses
             and seek legal advice in regard to his immigration
             status. One adjournment was the result of the municipal
             court judge retiring. The adjournments requested by
             the State stem from the absence of Trooper Harris, a

2
    Defendant asserts there was a 548-day delay.
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            key witness. Trooper Harris's absences were not the
            result of choice, as he was called to serve in the
            National Guard and was in a car accident. While [in]
            one instance his absence was the result of a scheduling
            mix-up, the delays and adjournments the State
            requested were not the result of the State delaying the
            process purposefully nor the result of the State being
            unprepared.

      In addition, the judge found defendant had asserted his right to a speedy

trial throughout, but defendant failed to show he was prejudiced by the delay.

Defendant did not show the delay adversely affected his ability to defend the

charges. He also claimed the delay caused him to suffer adverse psychological

and financial impacts, but the judge observed "these are circumstances

experienced by all defendants when facing pending prosecution."

      The judge concluded the denial of defendant's motion to dismiss was

proper. This appeal followed.

      On appeal, defendant raises the following point:

            THE STAGGERING 548-DAY DELAY, FROM THE
            DATE THE COMPLAINTS WERE ISSUED,
            OCTOBER 9, 2016, TO THE MUNICIPAL COURT
            RESOLUTION, APRIL 10, 2018, VIOLATED
            SHAH'S CONSTITUTIONALLY GUARANTEED
            SPEEDY TRIAL RIGHTS, DELAYS LARGELY
            CREATED BECAUSE THE STATE'S WITNESS,
            THE ARRESTING [NEW JERSEY] STATE
            TROOPER, WOULD NOT APPEAR FOR TRIAL
            UNLESS HE WAS ON DUTY (BECAUSE THE
            STATE DID NOT WANT TO PAY OVERTIME), THE

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            TROOPER FAILED TO TIMELY ADVISE THE
            COURT REGARDING HIS COMMITMENTS, AND
            THE COURT WAS UNABLE TO ACCOMMODATE
            A TRIAL, CONSITUTIONAL TRANSGRESSIONS
            COMPOUNDED BY THE COURT'S REFUSAL TO
            HONOR 'TRY OR DISMISS' TRIAL MARKINGS,
            VIOLATING SHAH'S DUE PROCESS RIGHTS TO A
            FUNDAMENTALLY FAIR PROCESS.

      After reviewing the record in light of the contentions on appeal and the

applicable law, we reject defendant's speedy trial arguments, and further

conclude that the trial court's ruling on the speedy trial motion is supported by

sufficient, credible evidence in the trial record. Accordingly, we affirm.

                                       II.

      Our standard of review is well-settled. The trial judge's factual findings

will not be disturbed where they are supported by sufficient credible evidence

in the record. State v. Locurto,  157 N.J. 463, 471 (1999). We defer to the trial

court's credibility findings. State v. Cerefice,  335 N.J. Super. 374, 383 (App.

Div. 2000). In an appeal from a de novo hearing on the record, we consider only

the action of the Law Division and not that of the municipal court. State v.

Oliveri,  336 N.J. Super. 244, 251 (App. Div. 2001).

      A determination by a trial judge regarding whether defendant was

deprived of his right to a speedy trial should not be overturned unless it was

clearly an abuse of discretion. State v. Tsetsekas,  411 N.J. Super. 1, 10 (App.

                                                                         A-0900-18T3
                                        7 Div. 2009); State v. Merlino,  153 N.J. Super. 12, 17 (App. Div. 1977). This

standard is highly deferential to the trier of fact. We will only reverse if the

decision is shown to be so erroneous that no reasonable analysis could have

produced it.

      The Sixth Amendment, by way of the Due Process Clause of the
 Fourteenth Amendment, guarantees the accused the right to a speedy trial in

state prosecutions. Barker v. Wingo,  407 U.S. 514, 515 (1972) (citing Klopfer

v. North Carolina,  386 U.S. 213, 222 (1967)); see State v. Szima,  70 N.J. 196,

200-01 (1976) (discussing the speedy-trial right under Art. I, paragraph 10 of

the New Jersey Constitution and the federal Constitution).

      The speedy-trial right protects a defendant's interest in minimizing

"pretrial incarceration," the accused's pretrial "anxiety and concern," and delay

that impairs the ability to present a defense. Barker,  407 U.S.  at 532. Alleged

violations of the speedy-trial right are assessed by balancing four factors: "(1)

the length of the delay[;] (2) the reasons for the delay[;] (3) whether and how

defendant asserted his speedy[-]trial right[;] and (4) the prejudice to defendant

caused by the delay." State v. Townsend,  186 N.J. 473, 487 (2006).

      In applying the four-part test, "[n]o single factor is a necessary or

sufficient condition to the finding of a deprivation of the right to a speedy trial."


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Tsetsekas,  411 N.J. Super. at 10 (citing Barker,  407 U.S. at 533). "Rather, the

factors are interrelated," and a fact-sensitive analysis is necessary so that each

factor is "considered in light of the relevant circumstances of each particular

case." Ibid. Each application for dismissal based on speedy trial principles is

fact-sensitive, and requires "a case-by-case analysis rather than a bright-line

time limitation . . . ." State v. Cahill,  213 N.J. 253, 270 (2013). Fairness calls

for varying timelines depending on individual circumstances—a delay of 344

days between arrest and resolution was unacceptable in one case, while in

another, a thirty-two-month delay was deemed justifiable. Id. at 271.

      Regarding the first and second factors, the length and reasons for the

delay, we recognize the delays in Trooper Harris being unavailable resulted in

trial postponements. However, defendant was also responsible for some of the

delay. Defendant's service of expert reports and request to confer with his

immigration attorney about the State's plea offer contributed to the delay.

"[A]ny delay that defendant caused or requested would not weigh in favor of

finding a speedy trial violation." State v. Long,  119 N.J. 439, 470 (1990)

(quoting State v. Gallegan,  117 N.J. 345, 355 (1989)).




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                                        9
      There is no indication in the record that the State used adjournments to

gain a tactical advantage. Given these circumstances, the length of the delay

does not weigh against the State.

      The third factor requires defendant to assert the right to a speedy trial.

Defendant first asserted that right on October 17, 2016. But he was not ready

to proceed to trial on that date until after service of his expert reports and after

he spoke with his immigration attorney. Under these circumstances, we decline

to weigh the third factor in defendant's favor.

      Finally, as to the fourth factor, except for pre-verdict anxiety, stress, and

personal inconvenience, the lack of significant prejudice suffered by defendant

militates against dismissal of his case. As the trial court recognized, defendant

was not subject to pretrial incarceration, his driver's license was not suspended,

and he was free to handle his personal affairs. Accordingly, measured against

the four Barker factors, we conclude there was no violation of defendant's

constitutional speedy trial right.

      We conclude that the remaining arguments—to the extent we have not

addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.


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