STATE OF NEW JERSEY IN THE INTEREST OF T.C.

RECORD IMPOUNDED

                               NOT FOR PUBLICATION WITHOUT THE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-3585-19T4

STATE OF NEW JERSEY
IN THE INTEREST OF T.C.1
________________________

                  Argued telephonically September 21, 2020 –
                  Decided October 6, 2020

                  Before Judges Rothstadt, Mayer and Susswein.

                  On appeal from an interlocutory order of the Superior
                  Court of New Jersey, Chancery Division, Family Part,
                  Atlantic County, Docket No. FJ-01-0369-20.

                  Elizabeth C. Jarit, Deputy Public Defender, argued the
                  cause for appellant (Joseph E. Krakora, Public
                  Defender, attorney; Elizabeth C. Jarit, of counsel and
                  on the briefs).

                  John J. Lafferty, IV, Assistant Prosecutor, argued the
                  cause for respondent State of New Jersey (Damon G.
                  Tyner, Atlantic County Prosecutor, attorney; John J.
                  Lafferty, IV, of counsel and on the brief).

PER CURIAM




1
    We use initials in accordance with R. 1:38-3(d)(8).
      Upon leave granted, defendant T.C. appeals from an April 16, 2020 order

denying a motion to dismiss a juvenile complaint charging him with murder.

The murder charges against defendant stemmed from a shooting that occurred

on May 27, 1996, when defendant was seventeen years old.               Despite

investigating the shooting death in 1996 and 1997, it was not until October 17,

2019 that defendant was charged with first-degree murder,  N.J.S.A. 2C:11-

3(a)(1), and first-degree felony murder,  N.J.S.A. 2C:11-3(a)(3). Defendant,

now age forty-one, sought to dismiss the complaint based on the State's

unreasonable prosecutorial delay.    The motion judge rejected defendant's

arguments for the reasons placed on the record on April 16, 2020, and in an

April 28, 2020 written amplification. We affirm.

      The facts leading to the charges against defendant are undisputed. The

victim was shot and killed during a drug-related robbery in May 1996. The

police interviewed several witnesses to the shooting between May 1996 and

January 1997. According to the witnesses, defendant arranged to purchase

marijuana from the victim. While defendant was negotiating with the victim to

purchase drugs, co-defendant Lamarc Rex demanded the victim turnover his

drugs and money. When the victim refused, Rex shot him twice with a .22

caliber handgun.


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                                      2
      Between 1997 and 2019, four different prosecutors had an opportunity to

review the case and pursue charges. In 2019, twenty-three years after the

murder, the current Atlantic County Prosecutor filed charges against defendant.

      Defendant moved to dismiss the charges, asserting the State's twenty-three

year delay in prosecuting violated his right to due process and contravened the

concept of fundamental fairness. Defendant argued there was no legitimate

reason for the prosecutorial delay, and he suffered actual prejudice as a result.

In support of his prejudice claim, defendant argued: (1) "his inability to avail

himself of rehabilitative services through the juvenile court"; (2) absen ce of

"records that could have substantiated his claim of trauma he experienced in his

youth"; (3) "unique opportunities he may have received as a juvenile . . . are not

available to him as an adult"; (4) "inability to prepare a defense because he is

unable to interview State witnesses and potential defense alibi witnesses, some

of whom are deceased, incarcerated[,] or otherwise unavailable"; and (5) the

lengthy delay challenges his "ability to recall his own actions of the day."

      He also argued there was no additional evidence or renewed investigation

prior to the State's filing of the charges. According to defendant, the significant

delay in the State's charging him with murder resulted in the loss of material

witnesses. In addition, because defendant was forty-one years old at the time


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                                        3
the charges were filed, he was not eligible for prosecution as a juvenile. Further,

defendant claimed various records helpful to his defense were no longer

available.2

      In considering defendant's motion, the judge applied the two-prong

analysis in State v. Aguirre,  287 N.J. Super. 128, 132 (App. Div. 1996). Under

that analysis, the defendant bears the burden of proving the State lacked any

legitimate reason for the prosecutorial delay and the defendant suffered actual

prejudice as a result of the delay. Ibid.

      In assessing the first prong of Aguirre, the judge explained "the State has

relied solely on the 1996 and 1997 reports gathered during its original

investigation" and offered no new evidence against defendant. As a result, the

judge concluded "the State has not demonstrated that it had [a] legitimate reason

for the [twenty-three] year delay."

      However, in applying the second prong of Aguirre, the judge concluded

defendant failed to demonstrate actual and substantial prejudice that would



2
  Defendant claimed the following information was no longer available: files
maintained by the Division of Child Protection and Permanency (Division)
regarding defendant and a sexual assault allegation from 1994; files related to
the murder of defendant's aunt in defendant's childhood home; and defendant's
school records.


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                                            4
deprive him of the right to a fair trial. The judge explained defendant failed to

set forth information he claims the unavailable witnesses would have offered.

She noted the speculative nature of the prejudice offered by defendant and

determined vague and conclusory assertions of prejudice based simply on the

passage of time fell short of satisfying defendant's burden. See Aguirre,  237 N.J. Super. at 134. The judge expressly found

            [defendant's] argument regarding the prejudice he
            suffered based on the unavailability of witnesses due to
            the passage of time is speculative and conclusory.
            Because [defendant] has not specified with particularity
            which witnesses are unavailable, has not provided
            concrete evidence regarding how those witnesses
            would have assisted his defense, and has not attempted
            to contact those witnesses, he has not established actual
            prejudice by prosecutorial delay due to the
            unavailability of witnesses.

      The judge also rejected defendant's actual prejudice argument based on

his inability to avail himself of the juvenile justice programs and services that

would have been available if the State filed the charges in 1996. The judge

found "[d]efendant has not demonstrated how the lack of juvenile services

jeopardizes his right to a fair trial." Nor did defendant "address whether similar

supportive services and programs are available to him now, as an adult."

      On appeal, defendant raises the following argument:



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                                        5
            THE PROSECUTION OF [T.C.] FOR A TWENTY-
            THREE-YEAR-OLD CRIME FOR WHICH NO NEW
            EVIDENCE HAS BEEN OBTAINED SINCE 1997,
            WHERE THE GOVERNMENT PUT FORWARD NO
            REASONABLE OR LEGITIMATE REASON FOR
            THE   DELAY,  AND    WHERE     EVIDENCE
            NECESSARY TO THE DEFENDANT'S DEFENSE
            HAS BEEN LOST DUE TO THE PASSAGE OF
            TIME,  VIOLATES   DUE     PROCESS   AND
            FUNDAMENTAL FAIRNESS.

      Defendant's    contention   runs   contrary   to   our   Supreme   Court's

pronouncement relating to pre-indictment delay.      In State v. Townsend,  186 N.J. 473 (2006), the Court held that a defendant alleging a due process violation

based on a twenty-year pre-indictment delay had the burden of satisfying two

specific prongs.    First, "the State's delay in seeking the indictment was a

deliberate attempt to gain advantage over [the defendant]," and second, "the

delay caused defendant actual prejudice in his ability to defend the charge."

Townsend,  186 N.J. at 489 (citing United States v. Gouveia,  467 U.S. 180, 192

(1984)). We have held a defendant asserting prejudice resulting from the State's

pre-indictment delay must show "'actual and substantial prejudice,' endangering

[defendant's] right to a fair trial." Ibid. (citing State v. Alexander,  310 N.J.

Super. 348, 355 (App. Div. 1998)). We emphasized the burden is "actual

prejudice, not possible or presumed prejudice." Ibid. "Vague assertions of lost

witnesses, faded memories, or misplaced documents are insufficient to establish

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                                         6
a due process violation from pre-indictment delay." Ibid. (quoting United States

v. Beszborn,  21 F.3d 62, 67 (5th Cir. 1994)).

        Here, defendant offered no concrete evidence that the delay was to gain a

tactical advantage over him and actually prejudiced his defense. The passage of

time did not preclude a new county prosecutor from reviewing the evidence

gathered in 1996 and 1997 and independently determining there was sufficient

evidence to charge defendant with murder.            Thus, defendant failed to

demonstrate the State's delay in prosecution satisfied the first prong of

Townsend.

        Nor was defendant's inability to remember the incident of twenty-three

years earlier sufficient to satisfy the prejudice prong under Townsend.

Defendant also never proffered the substance of the testimony from the

witnesses who were no longer available and failed to explain how such

testimony would have benefitted his case to establish a due process violation

from pre-indictment delay.

        Defendant argues we should adopt the reasoning advanced by various

federal courts addressing violations of due process based on prosecutorial pre-

indictment delay. 3 The United States Supreme Court set forth its analysis for


3
    Defendant acknowledges that the federal courts are divided on this issue.
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                                         7
review of a motion to dismiss based on pre-indictment delay where a defendant

can demonstrate "a deliberate attempt [by the government] to gain an unfair

tactical advantage" or "reckless disregard of [the delay's] probable prejudicial

impact upon the defendant's ability to defend against the charges." United States

v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States

Currency,  461 U.S. 555, 563 (1983). Under a federal line of cases, a burden

shifting occurs once a defendant establishes prejudice.             Under such

circumstances, the federal courts assess the legitimacy of the government's

reasons for delay and balance those reasons against the prejudice caused to a

defendant to determine whether a defendant has been denied due process. See

United States v. Sowa,  34 F.3d 447, 451 (7th Cir. 1994); Howell v. Barker,  904 F.2d 889, 895 (4th Cir. 1990).

      Prior to Townsend, our Court had "not previously addressed the standard

[that] should apply when evaluating a request to dismiss an indictment based on

unreasonable delay between the date of the crime and the date the charge is

presented to a grand jury." Townsend,  186 N.J. at 486. In Townsend, the Court

considered federal precedent in United States v. Lovasco,  431 U.S. 783 (1977),

and Gouveia,  467 U.S.  at 192, to determine whether a delay in prosecution

violated fundamental fairness and due process. Id. at 487-88. After considering


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                                       8
federal case law, the Court "appl[ied] the federal standard in determining

whether a due process violation resulted from excessive pre-indictment delay,"

and adopted the above cited two-part test for reviewing a motion to dismiss

based on unreasonable prosecutorial pre-indictment delay. Id. at 488-89.

      The federal cases defendant relies on in pressing this court to deviate from

Townsend were decided prior to 2006. The Court could have adopted the

burden-shifting paradigm for review of motions to dismiss based on

unreasonable prosecutorial delay in pursuing an indictment when deciding

Townsend. However, the Court did not follow that approach. Our role as an

intermediate court is a limited one, and we are bound to follow precedent of the

Supreme Court of New Jersey. State v. Breitweiser,  373 N.J. Super. 271, 282-

83 (App. Div. 2004).     Thus, we decline defendant's invitation to adopt an

analysis that varies from the standard articulated in Townsend.

      Affirmed.




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