Opinion
DOCKET NO. A-4950-11T2
06-10-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ROGER MAURO, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). Craig, Annin & Baxter, L.L.P., attorneys for respondent (Jeffrey S. Craig, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 33-11.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Craig, Annin & Baxter, L.L.P., attorneys for respondent (Jeffrey S. Craig, on the brief). PER CURIAM
This matter returns to us on remand from the Supreme Court for reconsideration in light of State v. Cahill, 213 N.J. 253 (2013). The facts are set forth in our earlier opinion and we need not repeat them here. See State v. Mauro, No. A-4950-11 (App. Div. Feb. 21, 2013). We find the facts here distinguishable from those in Cahill and again determine that Mauro's speedy trial rights were not violated by the twelvemonth delay between the remand of his motor vehicle charges and the scheduling of trial in the municipal court following a nearly four-year delay from the date of the filing of those charges and the dismissal of a related indictment.
In Cahill, after a night of drinking in a bar, the defendant's vehicle collided with a police vehicle, injuring the officer. Cahill, supra, 213 N.J. at 258. The defendant's blood alcohol level exceeded the legal limit and he was issued summonses for DWI and related charges. Id. at 258-59. Six months later, the defendant was indicted and charged with assault by auto. Id. at 259. The defendant entered a guilty plea to the indictable charge, and the DWI and related traffic offenses were remanded to the municipal court. Ibid. The defendant did not receive trial notice for the municipal court charges until sixteen months after his sentence in the Law Division on the indictable charge. Ibid.
The defendant moved to dismiss the municipal charges, claiming a violation of his right to a speedy trial. Ibid. The municipal court denied the motion but the Law Division dismissed and we affirmed. Id. at 260, 262. The State appealed and the Court affirmed, finding that the unexplained sixteen-month delay between the remand of the driving-while-intoxicated charges to the municipal court and the notice of trial deprived the defendant of his right to a speedy trial. Id. at 258, 262.
In analyzing Mauro's claim, we first measure the entire length of the delay, from the date of the filing of the motor vehicle summons, on November 25, 2006, to the notice of trial in the municipal court, September 16, 2011. See id. at 272 (citing Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 2193-94, 33 L. Ed. 2d 101, 119 (1972)). For the reasons expressed in our earlier opinion, most of the delay from the time of indictment until the resolution of the indictable charges is directly attributable to defendant. See State v. Mauro, supra, slip. op. at 10-13, 15-16. The holding in Cahill does not require a contrary conclusion as to this delay.
The twelve-month delay between the dismissal of the indictment and the scheduling of trial in the municipal court, slightly shorter than the delay in Cahill, must be attributable entirely to the State.
As in Cahill, the twelve-month delay here is long enough to require consideration of the remaining Barker factors. Cahill, supra, 213 N.J. at 273. There is no evidence of a deliberate attempt by the State to hamper the defense. Rather, the delay appears to have been attributable to negligence, a factor the Barker Court termed a "more neutral reason" which will weigh less heavily although still chargeable against the State. See Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Like the charges in Cahill, the legal issues here were not complicated.
The third factor is the defendant's responsibility to assert his right. Ibid. After the remand, defendant made no demand for a trial and made no inquiry about the remaining charges. After he was notified of the trial date by the municipal court, defendant promptly moved to dismiss the charges. Although defendant has no obligation to bring himself to trial, see id. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115, his failure to assert the right is a factor that must be considered. See Cahill, supra, 213 N.J. at 274 (citing Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117). A defendant's failure to assert his right to a speedy trial "will make it difficult . . . 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.
The final Barker factor is prejudice to defendant, and the Court recognized three areas of interest the speedy trial right was designed to protect: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. The first and third factors are inapplicable here, as there was no pretrial incarceration and defendant does not claim the delay impaired his defense.
As to the middle factor, there is no evidence in the record that Mauro suffered the type of self-imposed limitations of employment opportunities as did the defendant in Cahill. See Cahill, supra, 213 N.J. at 275. Unlike the defendant in Cahill, who made adverse employment choices in anticipation of the impending suspension of his license, seeking short-term employment and lower-paying positions that did not require a driver's license, ibid., Mauro retained his driving privileges throughout the period of delay and suffered no identifiable consequences linked to the possibility of a license suspension. Indeed, the record suggests just the opposite. Mauro sold his marina where he had lived and worked and took a job as a carpenter which required daily commutation to Pennsylvania.
Nor do we find any evidence that Mauro suffered prejudice by living under "a cloud of anxiety" as referenced by the Cahill Court. Id. at 275. Again, the record suggests just the opposite. Throughout the five-year history of this case, Mauro displayed an attitude that approached indifference to the charges. After his initial rejection from the pre-trial intervention program (PTI), he was given a second chance and was admitted to the program but failed to comply with the conditions and was expelled from PTI; he failed to respond to court orders to appear, requiring a bench warrant for his arrest to issue; and he failed to pay agreed-upon restitution. Nothing in the record suggests that Mauro suffered any anxiety due to the pending and unresolved charges as recognized by the Cahill Court. See ibid.
While it should not take one year for traffic charges to be placed back on the municipal court docket after remand from the Law Division, we conclude that Mauro failed to assert his right to a speedy trial and is unable to establish even the slightest prejudice under the Cahill standard. Mauro has not demonstrated a deprivation of his right to a speedy trial and the drastic sanction of dismissal should not have been imposed.
Reversed and remanded to the municipal court. We do not retain jurisdiction.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION