Opinion
DOCKET NO. A-2372-11T1
09-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYRELL JACKSON, Defendant-Appellant.
Kelly Anderson Smith, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-04-0439. Kelly Anderson Smith, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Tyrell Jackson was convicted of first-degree murder, N.J.S.A. 2C:11-3(a) and/or (c); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a). The charges stemmed from the shooting death of Dana Reid. The State's theory was that defendant was engaged in a drug-dealing operation with his co-defendant, Dwayne Dricketts, and killed Reid after Reid failed to pay for drugs that Dricketts gave him to sell. On September 16, 2011, the trial judge sentenced defendant to a forty-eight year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT ADMITTED INFLAMMATORY PRIOR BAD ACTS EVIDENCE WITHOUT CONDUCTING THE 404(B) ANALYSIS. [(Not raised below)].
A. Defendant Was Further Prejudiced and Suffered Irreparable Harm When the Court Failed to Provide the Jury with Limiting Instructions or Charge Regarding Prior Bad Acts Testimony/Evidence.
POINT II
[THE] TRIAL COURT ERRED BY FAILING TO SUPPRESS SECOND IDENTIFICATION OF DEFENDANT BY EYE-WITNESS AND SUBSEQUENT IN-COURT IDENTIFICATION AT TRIAL.
POINT III
THE TRIAL COURT IMPROPERLY ADMITTED CO-CONSPIRATOR STATEMENTS BEFORE THE JURY; THEREBY DENYING THE DEFENDANT A FAIR AND IMPARTIAL TRIAL.
POINT IVWe reject these contentions, and affirm.
[THE] PROSECUTOR RELIED UPON INAPPROPRIATE AND IMPROPER REMARKS IN BOTH HER OPENING AND CLOSING STATEMENTS WHICH INFLAMED THE JURY AND DEPRIVED THE DEFENDANT A FAIR EVALUATION OF THE FACTS OF THE CASE. [(Not raised below)]
POINT V
THE INTERSTATE AGREEMENT ON DETAINERS AS IT RELATES TO DEFENDANT WAS VIOLATED. [(Not raised below)]
I.
We derive the following facts from the record. Reid's girlfriend, F.B., testified at trial that at approximately 12:30 a.m. on May 9, 2005, she and Reid were walking on Madison Avenue in Elizabeth on their way to a store to get cigarettes and food. Immediately preceding the shooting, she heard running footsteps coming from behind the couple at an angle, looked over her shoulder, and saw a "guy," who she later identified as defendant, pointing a gun at them. Reid threw her to the ground and laid on top of her while shots were being fired. F.B. testified that she had never seen the shooter prior to or after the shooting and that the shooter did not speak during the incident. However, she testified about the trauma the incident caused her and indicated that she "remember[ed] his eyes [and] his face." At trial, she identified defendant as the shooter.
We use initials to identify the witnesses involved in this matter to protect their identity.
F.B. and other witnesses who testified for the State at trial, L.P., J.W., T.B, and M.R., also testified at pre-trial hearings.
L.P. testified at trial that defendant and Dricketts were known to deal drugs from her house in Elizabeth called the Honeycomb. L.P. was, at the time of Reid's murder, a drug user who operated the Honeycomb as a "flop house" for drug users and drug dealers. In exchange for drugs, L.P. allowed drug dealers to stay at the house and deal drugs from it. Dricketts was the leader of a small group of drug dealers which included defendant. Defendant was known to L.P. as the "trigger man" at the Honeycomb and, in exchange for his use of the house, assured that: no one was stealing drugs or money; debts were paid; and if someone got out of line, he was to shoot them. Reid was a drug user who occasionally sold drugs for Dricketts. L.P. also testified that shortly before Reid's murder, she was in the hallway of the Honeycomb with Reid, Dricketts and defendant. Dricketts gave Reid fifty vials of cocaine to sell and told him not to "mess up like [the] last time."
Another witness to this transaction, J.W., a drug dealer who also routinely sold drugs at the Honeycomb, testified at trial that Dricketts told Reid to bring back the money and they would split the profits down the middle. At around the same time as the shooting on May 9, 2005, he was selling drugs outside a convenience store, and saw Dricketts and defendant running down Williams Street away from Madison Avenue.
M.R., a prostitute and drug dealer, testified at trial that she knew defendant, Dricketts and Reid through the Honeycomb. At one point, she and Reid were in a relationship. Sometime before Reid's murder, Dricketts approached her about paying off a drug debt Reid owed him, but she refused.
T.B., another prostitute and drug dealer at the Honeycomb, testified at trial that in early May 2005, Dricketts told her that Reid owed him money for drugs. She also testified that on one particular occasion, possibly just two days before Reid's murder, she, Dricketts, and defendant were in a car together, when Dricketts spotted Reid on the street and said to her and defendant that Reid was "[the one] that owes me money." In T.B.'s presence, Dricketts said to Reid "if you don't have my money in two hours I will fucking put a cap in your ass[.]" Dricketts then told T.B. that he would not "bother putting a cap in [Reid's] ass, [but would] have somebody else do it so [Reid] won't even see it coming[.]"
The State's expert in forensic pathology, Dr. Zhongxue Hua, the Union County Medical Examiner, testified that Reid had four gunshot wounds to his back and leg. Two bullets completely exited Reid's body: one bullet exited below Reid's chin; and one exited near his pubic area. Two bullets remained lodged in Reid's lower back and pubic area. One of the bullets entered Reid's back and punctured his heart and left lung. The State's expert in firearms identification and ballistics, Detective Krzysztof Audinis, testified that all of the bullets found at the crime scene and the two bullets lodged in Reid's body were fired from the same gun.
II.
Prior to the trial, the judge conducted a hearing pursuant to the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), to determine the admissibility of statements made by Dricketts about killing Reid. During the hearing, J.W., T.B., L.P., and M.R. all testified that defendant was engaged in organized drug dealing with Dricketts. L.P. also testified that she saw defendant with guns, and Dricketts told her in defendant's presence that defendant was the "enforcer."
N.J.R.E. 803(b)(5) provides that the hearsay rule does not exclude "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan."
Defendant contends for the first time in Point I that the judge failed to conduct an N.J.R.E. 404(b) hearing and the analysis required by State v. Cofield, 127 N.J. 328 (1992), with respect to the witnesses' testimony about prior bad acts, and failed to issue a limiting instruction. Because this issue was not raised before the trial court, we review it for plain error. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. We reverse on the basis of an unchallenged error only if it was "'clearly capable of producing an unjust result.'" Macon, supra, at 337 (quoting R. 2:10-2). To reverse for plain error, we must determine there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336. We discern no error, let alone plain error, here.
At the time of defendant's trial, res gestae was a basis for admitting evidence of other crimes or wrongs. Other crimes or wrongs evidence introduced as res gestae were not subject to an N.J.R.E. 404(b) analysis, as they were considered to be part of the subject matter of the action being tried. "In contrast to other-crimes evidence . . . res gestae evidence relates directly to the crime for which a defendant is being tried, rather than involving a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 434 (2001). Res gestae evidence
serves to paint a complete picture of the relevant criminal transaction. Thus, evidence of conduct occurring during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury."Instructing the jury on the limited uses of other-crimes evidence is unnecessary when the evidence of uncharged conduct is admitted as part of the res gestae of the crime." Ibid.; see also State v. Martini, 131 N.J. 176, 242 (1993).
[Ibid. (quoting State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995)).]
After the trial in this case, our Supreme Court prescribed a new rule disallowing the admission of other wrongs evidence solely grounded on res gestae. State v. Rose, 206 N.J. 141, 182 (2011). The Court held that whenever other wrongs or acts are sought to be admitted, the trial court must make a threshold determination as to whether the acts or other crimes are subject to an N.J.R.E. 404(b) analysis of evidence that is intrinsic to the charged crime not subject to the Rule. Id. at 179. The Court held that "evidence that is intrinsic to the charged crime is exempt from the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under [N . J.R.E.] 404(b) because it is not evidence of other crimes, wrongs, or acts." Id. at 177. To determine what is intrinsic, the Court adopted the test in United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010), and held that evidence is considered intrinsic if it "directly proves" the crime charged or if the acts in question are performed contemporaneously with, and facilitate, the commission of the crime charged. Id. at 180 (quoting Green, supra, 617 F.3d at 248-49). Courts have utilized a case-by-case approach in making this determination. Id. at 179.
In addition, the Court appeared to have broadened the intrinsic evidence exception by noting "'that other crimes evidence may be admissible if offered for any non-propensity purpose, [including] the need "to provide necessary background information" about the relationship among the players as a proper purpose.'" Id. at 180-81. The Court held that such background evidence is admissible "outside the framework of [N. J.R.E.] 404(b)," and when admissible for this purpose, the evidence is subject to the probative value/prejudice balancing test under N.J.R.E. 403, not prong four of [N. J.R.E.] 404(b). Id. at 177-78, 181 (quoting Green, supra, 617 F.3d at 249). The Court added:
There is no need to regard [N. J.R.E.] 404(b) as containing an exhaustive list of non-propensity purposes permitted of other crime evidence. . . . [T]here is no reason that
our courts cannot allow, under [N. J.R.E.] 404(b), evidence to be admitted for . . . necessary background or, as otherwise stated, the need to avoid confusing the jury, non-propensity purpose.
[Id. at 181 (quoting Green, supra, 617 F.3d at 249).]
The other wrongs evidence in this case was admissible as res gestae evidence. The evidence related directly to the crime for which defendant was being tried, and it painted a complete picture of the relevant criminal transaction. The evidence clearly established the context of the criminal event and presented a full picture of the crime to the jury. Because the other wrongs evidence was part of the res gestae crime, no limiting instruction was necessary. L.P., supra, 338 N.J. Super. at 235.
The other wrongs evidence was also admissible as intrinsic evidence under Rose. Evidence of defendant's involvement in Dricketts' drug operation provided necessary background of events that led to Reid's murder; explained the events that took place during the same time frame as the crime charged; established the context of the criminal event; and gave the jury a full picture of the crime. Defendant's involvement in Dricketts' drug operation was part of the narrative of the events that led to Reid's murder. Because the other wrongs evidence was also admissible as intrinsic evidence, it was not subject to an N.J.R.E. 404(b) analysis. Rose, supra, 206 N.J. at 177.
III.
The judge conducted a pre-trial Wade hearing to determine the admissibility of an identification F.B. made of defendant in 2009. F.B. testified at the hearing that after the shooting, she was taken to police headquarters for questioning, and was detained there as a result of her outstanding arrest warrants. During her detention, on May 19, 2005, she was shown a photo array and identified defendant as the shooter, stating she was "[ninety] percent sure" he was the shooter (the 2005 identification). She wrote on the back of the photograph she selected, "I remembered his eyes and face, I can't forget it."
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
F.B. testified that on November 18, 2009, four and one-half years after Reid's murder, she was again asked to participate in an identification. She again selected defendant's photo from a photo array, this time stating she was "one hundred percent sure" he was the shooter (the 2009 identification). At the hearing, she identified defendant as the shooter before she was shown the photo array from the 2009 identification.
Following the hearing, the judge held that the 2009 identification was admissible. The judge found that F.B. was a credible witness; the 2009 identification was reliable; and there was nothing suggestive about the procedure, given F.B.'s high degree of attention and certainty about defendant being the shooter. The judge added that because there was nothing suggestive about the 2009 identification, the violation of the Attorney General Guidelines did not warrant suppression.
Defendant did not challenge the admissibility of the 2005 identification.
At trial, F.B. gave an in-court identification of defendant without objection. F.B. was not shown any photo array when making her in-court identification. In addition, neither the prosecutor nor defense counsel used the 2009 identification when questioning F.B., and the 2009 identification was not admitted into evidence.
Defendant contends in Point II that the judge erred in failing to suppress the 2009 identification and the in-court identification. Defendant argues that the judge failed to account for the difference in F.B.'s increased degree of certainty between the 2005 identification and the 2009 identification, and the 2009 identification was impermissibly suggestive because the State failed to follow the Attorney General Guidelines at the photo array. Defendant also argues that F.B.'s in-court identification was tainted by the 2009 identification and should have been suppressed.
Defendant relies on State v. Henderson, 208 N.J. 208 (2011), to support these arguments. However, Henderson was decided after the trial, and the Court expressly held that the decision would be applied prospectively only, except for the defendant in that case. Id. at 302. --------
"'[T]he trial court's findings at the hearing on the admissibility of identification evidence are entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). We will not disturb the trial court's findings "if there is sufficient credible evidence in the record to support the findings." Ibid.
In determining the admissibility of an out-of-court identification, the trial court must conduct a two-step analysis. State v. Madison, 109 N.J. 223, 232 (1988). "[A] court must first decide whether the procedure in question was in fact impermissibly suggestive." Ibid. "If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). "'What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" State v. Adams, 194 N.J. 281, 203 (2008) (quoting Farrow, supra, 61 N.J. at 451).
"If the procedure is found to be impermissibly suggestive, the court must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" Id. at 203-04 (quoting State v. Romero, 191 N.J. 59, 76 (2007)); see also Madison, supra, 109 N.J. 232. To determine reliability the court must consider the totality of the circumstances and "'the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of his prior description of the criminal; the level of certainty demonstrated at the confrontation; and the time between the crime and the confrontation.'" Madison, supra, 109 N.J. at 232; see also State v. Herrera, 187 N.J. 493, 506-07 (2006).
There is nothing in the record indicating that the procedures used at the 2009 identification were unquestionably suggestive or gave rise to a likelihood of misidentification. To the contrary, F.B. testified that during the 2009 identification, the detectives did not suggest to her who she picked out in 2005, who the suspect was, or anything about the identity of the shooter. F.B. explained that she only identified defendant during the 2005 identification with ninety percent certainty because she "was scared, nervous" at the time and that "right when [she] went to go pick out the picture [in 2005] . . . it was like trying to process everything that happened but [she was] pretty sure back then, now [she was] definitely sure." She insisted that she was now one-hundred-percent certain that defendant was the shooter because "[i]t's a recurring nightmare I have so I'm not going to forget." Because there was no evidence the procedure in question was in fact impermissibly suggestive, the 2009 identification was admissible.
Nevertheless, the 2009 identification had no effect on the outcome of the trial. F.B. did not make her in-court identification based on the 2009 identification, as it was never used or admitted into evidence, neither the prosecutor nor defense counsel used it when questioning F.B., and F.B. was not shown any photo array when making her in-court identification. Thus, there was no error in admitting F.B.'s in-court identification.
IV.
Defendant contends in Point III that the judge improperly admitted Dricketts' co-conspirator statements, specifically, statements Dricketts made to J.W., who testified at the N.J.R.E. 803(b)(5) hearing that Dricketts told him defendant "got [Reid] because [Reid] didn't come up with the money or the drugs[,]" and other testimony implying that defendant was Dricketts' "enforcer." Defendant argues that Dricketts' statements did not meet the requirement of N.J.R.E. 803(b)(5) because the State only established a conspiracy to sell drugs, not a conspiracy to commit murder.
We review a trial court's evidentiary determinations under an abuse-of-discretion standard. State v. Harris, 209 N.J. 431, 439 (2012). An abuse of discretion only arises on demonstration of manifest error or injustice, State v. Torres, 183 N.J. 554, 572 (2005), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). There was no abuse of discretion in the admission of co-conspirator statements.
Statements made by a co-conspirator in furtherance of the conspiracy are admissible against all members of the conspiracy as an exception to the hearsay rule. N.J.R.E. 803(b)(5). "A co-conspirator's statement is admissible pursuant to N.J.R.E. 803(b)(5) when the State establishes that (1) the statement was made in furtherance of the conspiracy; (2) the statement was made during the course of the conspiracy; and (3) there is evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant's relationship to it." State v. Cagna, 211 N.J. 488, 530 (2012) (quoting State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div.), certif. denied, 152 N.J. 188, (1997)). In addition, admission must be conditioned upon independent proof of the conspiracy. State v. Harris, 2 98 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997).
Defendant is correct that Dricketts' statements made to J.W. do not in and of themselves prove a conspiracy to sell drugs, as the statements lacked independent proof beyond Dricketts' statements. However, defendant has ignored other testimony on which the judge relied in finding a conspiracy.
The judge was concerned and fully aware that evidence of a conspiracy must be established by independent evidence, not solely on the statements of the co-conspirator. The judge made the following findings after considering the evidence presented at the hearing:
I find the following is independent proof that [Dricketts and defendant] are in a drug conspiracy during the relevant time period. [T.B.] testified that she was a drug dealer during this relevant period of time and even before in the same area as [Dricketts and defendant].The judge also considered J.W.'s testimony, and held that the State met its burden of proving the existence of a conspiracy to sell drugs between Dricketts and defendant.
[T.B.] was on the street selling with them, observing with them, interacting with them, sometimes splitting some drug deals with them.
. . . .
[T.B.] testified . . . that [Dricketts] was in charge and running the show, the boss of his little crew, that [defendant] was part of the crew[.]
. . . .
[L.P.] saw [Dricketts] with guns. She saw [defendant] with guns.
As to whether the statements were made in furtherance of the conspiracy, the judge pointed to T.B.'s testimony that she was in the car with Dricketts and defendant when they spotted Reid and Dricketts told Reid that he had two hours to settle the drug debt. This testimony established that the statements were made in furtherance of the conspiracy.
Defendant essentially argues that because only a conspiracy to sell drugs was established, co-conspirator statements not specifically regarding drugs (i.e. the statements by Dricketts that defendant "got" Reid) were not admissible to show a conspiracy to commit murder. However, defendant cites no authority supporting this proposition. To the contrary, once a conspiracy has been established under the procedural safeguards of Cagna, then co-conspirator statements are freely admissible. Further, the conspiracy to deal drugs and commit the murder were inextricably intertwined. It was defendant's and Dricketts' drug dealing, and Reid's failure to pay for the drugs Dricketts gave him to sell, that led to Reid's murder. This series of intertwined events cannot be spliced up as defendant suggests.
Defendant has cited no case law holding that the conspiracy alleged must be the same type of substantive crime with which the defendant is charged. Our Supreme Court has expressly held that co-conspirator testimony may still be admitted even where the defendant is not charged with conspiracy. See State v. Clausell, 121 N.J. 298, 336-37 (1990). Thus, it follows that the specific types of conspiracies do not need to line up either. In sum, the judge did not err in admitting statements made by defendant's co-conspirator.
V.
For the first time on appeal, defendant contends in Point IV that the prosecutor's opening and summation remarks were improper and deprived him of a fair trial. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make these brief comments.
Defendant did not object to the now complained-of remarks made by the prosecutor in opening and summation. See State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (noting that "[g]enerally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial"). More importantly, the remarks conformed to the evidence presented; were not clearly and unmistakably improper; and did not substantially prejudice defendant's fundamental right to have a jury fairly evaluate the merits of his defense. Ibid.
VI.
Lastly, for the first time on appeal, defendant contends in Point V that the indictment should be dismissed based on a violation of the Interstate Agreement on Detainers (IAD). This contention lacks merit.
The IAD is "a compact entered into by [forty-eight] States, the United States, and the District of Columbia to establish procedures for resolution of one State's outstanding charges against a prisoner of another State." New York v. Hill, 528 U.S. 110, 111, 120 S. Ct. 659, 662, 145 L. Ed. 2d 560, 564 (2000). In New Jersey, the IAD is codified as N.J.S.A. 2A:159A-1 to -15.
When a state seeks to prosecute a person who is incarcerated in another state, the prosecuting state must file a detainer with the institution where the prisoner is located. Hill, supra, 528 U.S. at 112, 120 S. Ct. at 662, 145 L. Ed. 2d at 565. Once the detainer is lodged, disposition of the charges can be initiated by the defendant, in which case the time period is 180 days, or by the prosecuting agency, which has 120 days. If the defendant is not brought to trial within the applicable period, the indictment is subject to dismissal with prejudice. N.J.S.A. 2A:159A-5(c). However, this provision is not self-executing, as these timeframes are subject to any "necessary or reasonable" continuances granted by the trial court on good cause shown. N.J.S.A. 2A:159A-4(c); see also State v. Miller, 299 N.J. Super. 387, 397 (App. Div.), certif. denied, 151 N.J. 464 (1997).
A defendant will be deemed to have waived rights under the IAD if his counsel requests or agrees to a trial date beyond the relevant timeframe. Hill, supra, 528 U.S. at 114, 120 S. Ct. at 664, 145 L. Ed. 2d at 566; see also State v. Buhl, 269 N.J. Super. 344, 357 (App. Div.), certif. denied, 135 N.J. 468 (1994). Such a waiver will also bar the defendant from later seeking a dismissal of the indictment on those same grounds. The Court in Hill stated that the defendant is "deemed bound by the acts of his lawyer," and "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Hill, supra, 528 U.S. at 115, 120 S. Ct. at 664, 145 L. Ed. 2d at 567. When the trial date is at issue under the IAD, "only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case." Ibid.
Defendant was indicted in New Jersey on April 23, 2010, and arraigned on June 28, 2010. It appears that the State of New York lodged a detainer for defendant on June 24, 2010, which was not discharged until September 29, 2011. Pursuant to the IAD, defendant was to be tried by November 14, 2010. Trial was scheduled for November 8, 2010. Defendant filed pre-trial motions that were not disposed of until after the trial date. Defense counsel did not object when the trial was adjourned past the expiration date of the detainer in order to dispose of the motions. Consequently, defendant is deemed to have waived his rights under the IAD because his counsel agreed to a trial date beyond the relevant timeframe.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION