Opinion
DOCKET NO. A-1060-10T3
09-16-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIA B. AUSTIN, Defendant-Appellant.
Linda Smink, attorney for appellant. Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Jason Seidman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 70-2008.
Linda Smink, attorney for appellant.
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Jason Seidman, on the brief). PER CURIAM
Defendant Mia B. Austin appeals her judgment of conviction for fourth-degree obstruction of the administration of law, contrary to N.J.S.A. 2C:29-1a; fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; speeding, contrary to N.J.S.A. 39:4-98; and expired registration, contrary to N.J.S.A. 39:3-4. She was not sentenced to incarceration or probation but was fined $500 for obstruction, $500 for resisting, $86 for speeding, and $26 for expired registration. Court costs and penalties were also imposed.
On April 26, 2005, Piscataway Police Officer Michael Joy was conducting a speed-enforcement radar detail on Haines Avenue when he determined that defendant was driving at forty-two miles per hour in a twenty-five-mile-per-hour zone. Joy flagged her to stop and approached her vehicle. She presented him with an expired registration card when he asked for her documentation. Defendant admitted that she knew she had to renew the registration.
Joy explained that the car would have to be towed and asked for the keys. Defendant would not surrender them, despite repeated requests. Joy requested backup and, when another officer arrived, instructed defendant to get out of the car and leave the keys on the dashboard. However, when she got out of the car, she took the keys with her and refused to surrender them. When she was placed under arrest for obstructing the towing and impoundment of her car, she then resisted handcuffing. She was ultimately subdued, and the officers pried the keys out of her hand. She was then charged with the above offenses.
Defendant pled not guilty at the first court appearance on May 10, 2005. Subsequently, there were nine court appearances over the next eight months, none of which was adjourned at the request of defendant. However, defendant's counsel failed to appear on February 23, 2006, and counsel was ordered to appear on February 28, which was then carried to March 1. On March 7, 2006, defendant objected to the multiple adjournments, the length of the delay, and the adverse impact all of the daytime appearances were having on her children and her employment. The matter was not rescheduled until May 11 on a try-or-dismiss basis, but the court again adjourned the matter four more times before beginning the trial on October 24, 2006. However, the judge did not have sufficient time to complete the testimony of Joy and adjourned the matter to January 23, 2007. When that appearance was adjourned, defendant's counsel demanded, verbally and in writing, that the municipal court provide him with "a detailed listing of any and all scheduled [court] appearances." The municipal court never complied with this request.
The trial resumed on March 6, 2007—almost two years after the offenses in question. Although the testimony of Joy was completed that day, the judge again adjourned the trial as he did not have sufficient time available to hear the next witness. This was the eighteenth court appearance. The matter was rescheduled to an agreed date of May 1, 2007, but that date was adjourned by the court to June 26, then to August 28, and then to September 25, 2007. The latter date, too, was adjourned, and defendant filed a motion to have the Piscataway municipal judge recused from the case because defendant had sued the Township. Yet no immediate ruling was made on that motion. The matter was relisted on October 23, November 27, and December 4 with no further testimony ever being taken. It was again adjourned to January 22, 2008.
On the latter date, the municipal judge had apparently not been reappointed to the bench, and the new judge declared a mistrial and transferred the matter to the Metuchen municipal court for disposition. The first appearance in Metuchen on April 4, 2008, was adjourned; it was now three years after the offenses in question. Two more scheduled appearances were adjourned before trial began on July 11, 2008. By that time, defendant had moved to dismiss for violation of her right to a speedy trial. The motion was denied, and the trial began that day. It resumed and was concluded on September 5 with defendant found guilty on all charges.
Defendant appealed to the Law Division where further delays occurred. The appeal was not decided until January 22, 2010— four years and nine months after the offenses in question. Defendant renewed her speedy trial motion, which was again denied. Defendant was convicted de novo on all charges. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DISMISSAL BASED ON VIOLATION OF HER RIGHT TO [A] SPEEDY TRIAL.
POINT II - DEFENDANT'S CONVICTION FOR OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE SHOULD BE REVERSED.
POINT III - DEFENDANT'S CONVICTION FOR RESISTING ARREST SHOULD BE REVERSED.
The Sixth Amendment guarantees the accused the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33 L. Ed. 2d 101, 108 (1972). Because it is "impossible to determine with precision when the right has been denied," id. at 521, 92 S. Ct. at 2187, 33 L. Ed. 2d at 112, the Barker Court rejected an inflexible approach in evaluating alleged violations of a defendant's right to a speedy trial. Id. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116. Rather, the Court imposed a flexible balancing test, which weighs the conduct of both the prosecution and the defendant. Id. at 530, 92 S. Ct. at 2191-92, 33 L. Ed. 2d at 116-17. This balancing test assesses four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. None of the factors is dispositive, but instead the factors "must be considered together with such other circumstances as may be relevant." Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
Our Supreme Court reviewed the history of a defendant's right to a speedy trial in New Jersey under Article I, paragraph 10, of the New Jersey Constitution in State v. Szima, 70 N.J. 196, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). The Court recognized that the federal right to a speedy trial had been found fundamental in 1967 and that the dimensions of this right were delineated in 1972 by the Barker Court. Id. at 200. In adopting that paradigm, it noted that "[t]he proper approach suggested by the Supreme Court was an ad hoc balancing test in which the conduct of both the prosecution and the defendant are weighed." Id. at 200-01. It observed that the Barker Court "regarded none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Id. at 201 (emphasis added). It "recognize[d] that application of a balancing of interests test must be on an ad hoc basis and necessarily involves subjective reaction to the balancing of circumstances." Ibid.
In State v. Farrell, 320 N.J. Super. 425, 427 (App. Div. 1999), an appeal from a DWI conviction, we found that "663 days from the issuance of the summonses through thirteen non-continuous, widely-spaced court sessions" amounted to a violation of the defendant's right to a speedy trial. Id. at 428. The defendant's counsel "entered his appearance and a not-guilty plea, filed notice of several motions, made discovery requests and proffers, and asserted [the] defendant's constitutional right to a speedy trial." Ibid. Three weeks later, he "acknowledged receipt of some discovery and requested other, missing" discovery. Ibid. The next day, he filed a brief in support of his motions. Ibid. "An inordinate number of continuances and lengthy adjournments then ensued." Ibid. Trial did not actually begin until ten months after the defendant was charged. Id. at 428, 433. It was then carried for three months; was adjourned for five weeks, at which point the defendant again asserted his right to a speedy trial; and was then adjourned again until July 10, 1996—eighteen months after the defendant was charged. Id. at 436-37. At that point it was adjourned again to September 11, 1996. Id. at 439. On that date, the trooper was not available and the prosecutor sought an adjournment, the defendant renewed his motion to dismiss, and the case was adjourned again and again, id. at 439- 42, until it was tried to conclusion on November 13, 1996, id. at 443-44. The defendant continued throughout this time to press his right to a speedy trial. Id. at 439-43.
In State v. Tsetsekas, 411 N.J. Super. 1, 4 (App. Div. 2009), we again considered the delay in a DWI conviction. There, the defendant was arrested on May 8, 2007, and charged with DWI. Id. at 4-5. He first appeared in court on May 15, 2007, entered a plea of not guilty, and was scheduled for trial on July 17, 2007. Id. at 5. At that time, the State requested an adjournment because it had just provided the defendant with discovery. Ibid. The matter was relisted for August 14, 2007, when the State revealed it had not provided the videotape of the defendant's stop and arrest. Ibid. Multiple adjournments were requested by the State over the next four months when on December 18, 2007, the State represented it had not alerted its witnesses of the date for trial. Id. at 5-6. The defendant sought a speedy-trial dismissal, which the judge denied, and the trial finally commenced at 11:00 p.m. when one of the troopers arrived. Id. at 6-7. The trial was scheduled to continue on March 5, 2008, but the State again sought an adjournment because the troopers were not available. Id. at 7. The defendant renewed his motion to dismiss, and the judge again denied the motion. Ibid. On April 16, 2008, almost a year after the defendant's arrest, the State concluded its presentation of evidence, and the defense presented its case. Ibid. The defendant was convicted of DWI and appealed. Ibid. The Law Division denied the defendant's speedy-trial motion and affirmed the conviction. Id. at 7-8.
The Law Division judge measured the length of the delay against the delay in Farrell and concluded that the delay in Tsetsekas was not excessive. Id. at 11. We rejected that approach and held that "no set length of time . . . fixes the point at which delay is excessive." Ibid. We pointed out that "[t]he first step in analyzing the facts requires a court to remember" the Supreme Court's policy on DWI dispositions. Ibid. (quoting Farrell, supra, 320 N.J. Super. at 446-47). We observed that the 344-day dispositional period was "more than five times the stated objective." Ibid. We concluded that amount of delay was excessive. Id. at 11-12.
We have, however, on separate occasions concluded that delays in drunk-driving trials were not excessive. State v. Misurella, ___ N.J. Super. ___ (App. Div. 2011) (rejecting speedy trial claim where delay was caused by defendant and the State); State v. Berezansky, 386 N.J. Super. 84, 85, 99 (App. Div. 2006) (rejecting "defendant's contention that 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"), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); State v. Prickett, 240 N.J. Super. 139, 141-42, 148 (App. Div. 1990) (affirming denial of speedy-trial motion in a trial held approximately six months after arrest). We acknowledge these cases involved DWI charges, but we discern no reasons why the same speedy trial principles and analysis should not apply to municipal court trials in general.
The delay here far exceeded the five-month delay in Berezansky and the six-month delay in Prickett. In fact, it far exceeded the almost one-year delay in Tsetsekas and the 663-day delay in Farrell. This delay consumed 1228 days from arrest to conviction and subjected defendant to no less than thirty-one court appearances. Indeed, the delay was further exacerbated by the fact that it took another 504 days before the Law Division heard defendant's appeal from the municipal conviction. By any standard, the delay here was extraordinary. As a consequence, we must next consider the second Barker factor—the reasons for the delay.
The Barker Court suggested that a "deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. On the other hand, a valid reason for the delay, such as the absence of a witness, will be considered justifiable and excuse the delay. Ibid. Similarly, although more neutral and given less weight, "delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant," for it is the ultimate responsibility of the government to bring the defendant to court. Farrell, supra, 320 N.J. Super. at 451 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Finally, delays attributable to the defendant "would not weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989).
Here, there is no suggestion that there was any "deliberate attempt to delay the trial in order to hamper the defense." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. However, the bulk of the delays were attributable to the municipal court judge, his staff, and the prosecutor. The record is devoid of any evidence that defendant caused any of the twenty-nine adjournments with the exception of one adjournment when she filed her recusal motion. Although the State blames the judge, his delays "are attributable to the State and not to the defendant." Farrell, supra, 320 N.J. Super. at 451.
The third Barker factor, the defendant's assertion of her right to a speedy trial, "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117. The strength of the defendant's efforts are closely related to the other Barker factors. Id. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; see, e.g., Farrell, supra, 320 N.J. Super. at 451-52 (finding in favor of the defendant who, given the "excessive" delays, invoked his right to a speedy trial at the outset and on eight other occasions). At the same time, the defendant's "failure 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 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
Here, defendant asserted her right to a speedy trial on March 7, 2006, February 27, 2007, and March 26, 2008. Because we do not have transcripts of all court appearances, we do not know if there were other occasions when defendant asserted her right to a speedy trial, but we do know that she maintained that position for almost two years, leaving only one factor to consider.
The final Barker factor is the prejudice to the defendant caused by the delay. Ibid. The Barker Court identified three interests that the right to a speedy trial protects: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. Ibid. Moreover, prejudice can be found "from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." State v. Smith, 131 N.J. Super. 354, 367-68 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976).
Here, defendant was not incarcerated pretrial, and there is no suggestion that her defense was impaired as a result of the delay. She does, however, urge that she "experienced anxiety over the drawn[-]out prosecution, had interruptions in her employment, and suffered financial drain as a result of the delay." Indeed, we cannot imagine that the latter was not the case as generally attorneys expect to be compensated for making thirty-one court appearances. In Farrell we found that
the prosecution's clear inattention to its responsibilities along with the municipal court's patent failure to prepare itself to try the matter expedi[ti]ously and shepherd it to resolution efficiently . . . were so egregious that no showing of prejudice is required in order for this defendant to succeed on his argument that, in fundamental
fairness terms, he was denied his adequately asserted right to a speedy trial.
[Farrell, supra, 320 N.J. Super. at 452-53.]
The delay there was 663 days; here it was almost twice as long. We see no basis for distinguishing the facts in Farrell and are persuaded that the result should be the same. Although some showing of prejudice has been made, none was required. As a result, it was error to deny defendant's speedy-trial motion because "the denial of fundamental fairness was so great, and the integrity of the judicial process so crippled, as to require that the convictions be vacated." Id. at 453.
In light of our disposition of the speedy-trial issue, defendant's claim that her convictions should be reversed on other grounds is moot.
Reversed and remanded for vacation of the judgment of conviction and refund of all fines, penalties, and costs.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION