Opinion
DOCKET NO. A-6188-11T2
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS SULKOWSKI, Defendant-Appellant.
Albert J. Rescinio, attorney for appellant (Laura Orriols, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0004-12. Albert J. Rescinio, attorney for appellant (Laura Orriols, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Thomas Sulkowski appeals from the judgment of conviction that followed his de novo appeal to the Law Division from his guilty plea in the Atlantic City municipal court to driving while intoxicated (DWI), N.J.S.A. 39:4-50. The Law Division judge, Bernard E. DeLury, Jr., imposed the same sentence that was imposed by the municipal court judge -- a license suspension of three months, twelve hours in an Intoxicated Driver Resource Center (IRDC), and various fines and penalties.
Judge DeLury vacated the stay entered pending defendant's appeal to the Law Division. We subsequently denied defendant's motion for a stay pending this appeal.
I.
We set forth the procedural history in some detail because it presents the sole basis for defendant's arguments before both the Law Division and this court.
Defendant was charged in Atlantic City with DWI and other violations on September 28, 2010. Defense counsel entered his appearance by letter dated October 2, 2010, and requested "full discovery." The discovery request was served on both the New Jersey State Police and the Atlantic City Police Department.
By letter dated October 24, 2010, defense counsel sought an adjournment of the November 3 trial date because of a scheduling conflict. He noted, however, that he had not yet received any discovery. On October 26, the municipal prosecutor similarly requested an adjournment because discovery materials had not yet been received. Despite these mutual adjournment requests, the court mistakenly issued an arrest warrant for defendant's failure to appear on November 3, and defendant was arrested on November 10. Defendant was required to post bail, but the situation was eventually rectified, the warrant was recalled and his bail money was refunded.
By letter dated November 18, defense counsel again contacted the New Jersey State Police and requested additional discovery "consisting of CAD Logs, Data Download for the [A]lcotest machine used to test my client as well as all test and repair records for the alcotest machine . . . ." The parties appeared before the municipal court judge on December 6, 2010 for a status conference. However, only one of the two State troopers intended to be called as witnesses was present. The judge set a trial date of January 26, 2011. The prosecutor also acknowledged that the CAD logs, data downloads, and repair records for the Alcotest machine had not been received. She "explained to the trooper that [she] would need that discovery immediately within the next week or two."
The municipal court judge requested that defendant memorialize his discovery requests in a Holup order and submit it to the court. The judge explained he would allow the State thirty days in which to produce the requested discovery materials, after which he would "entertain a dismissal order." The Holup order was executed by the judge on December 14, 2010.
In State v. Holup, 253 N.J. Super. 320, 325 (App. Div. 1992), we suggested a procedure for expediting discovery in DWI cases:
[W]here discovery has not been provided, we would also recommend that defense counsel serve a motion . . . upon the municipal prosecutor, filing the original with the municipal court seeking an order limiting time for the production of discovery and upon the municipal prosecutor's failure to do so, dismissal of the action. Such an application and the ensuing order would alert the municipal prosecutor and enforcement authorities to their discovery responsibilities and avoid the inconvenience to litigants and witnesses that occurs with such frequency when all parties appear in court for trial. Another salutary effect of such a practice is to expedite the processing of cases by assuring both sides of the certainty of the trial date and eliminating the unnecessary work, expense and delay resulting from the continuance of a case because the discovery process has not been completed.
[(Emphasis added).]
Trial was scheduled for January 26, 2011. By January 24, most of the requested discovery had been forwarded to defense counsel; however, the repair records for the Alcotest machine were not. Defendant moved to exclude the Alcotest results for failure to provide discovery and moved to dismiss for failure to provide defendant with a speedy trial. On the morning of the trial, defense counsel requested an adjournment due to a snowstorm. The adjournment was apparently granted, and, pursuant to the court's request, defense counsel advised the prosecutor that he still had not received the "repair records regarding the [A]lcotest machine." Trial was set for March 1, 2011.
It is unclear from the record why and how this trial date was later adjourned.
On February 11, 2011, defense counsel again advised the prosecutor that the Alcotest repair records remained outstanding, however, on February 14, the prosecutor served the records and a request for reciprocal discovery on defense counsel. On March 7, defense counsel served a second motion seeking to exclude the Alcotest results for failure to provide discovery and to dismiss for failure to provide defendant with a speedy trial.
The parties appeared before the municipal court judge on March 8, 2011, expressly for a conference. Defense counsel stated that the repair records were still outstanding, and he served a copy of his expert's report "which further outline[d] what [defendant was] requesting." Defense counsel noted that "[p]ursuant to our conference," the State had until March 22 to provide the repair records, and defendant had until April 5 to serve his expert's "follow[-]up report," which might identify "if there's any additional discovery needed." Defense counsel further noted that a "pre-trial conference/potential trial date" would be set for April 19, "but only . . . if everything is set and we have confirmed the trooper's availability for that date . . . ." The municipal court judge agreed with that proposed schedule.
On March 15, 2011, defendant's expert informed defense counsel that the data supplied by the prosecutor "d[id] not apply" to defendant's Alcotest. Defense counsel informed the prosecutor of this discrepancy by letter dated March 18, 2011, and, on March 28, defendant filed a third motion to exclude the Alcotest results and to dismiss on speedy trial grounds. The parties appeared before the municipal court judge on April 19, 2011, again expressly for a conference. Defense counsel again stated that a complete set of the Alcotest repair records remained outstanding. The prosecutor explained that an invoice for the repairs had been provided, but that a narration of the actual repairs made was still not available. She also indicated that the correct set of digital downloads would be available for the defense expert by April 22.
Defense counsel asked that his motions be heard. In response, the judge stated that "those issues will be preserved. You can make that motion pre-trial on June 1[]. I'll still entertain it at that particular time." Additionally, the judge indicated that if defendant did not receive the requested digital downloads by the end of the month, he would "schedule [defendant's] motion . . . for dismissal earlier than June 1[]." The prosecutor forwarded the correct data download to defense counsel on April 26, 2011.
Due to an error by the court, trial was scheduled for June 2, rather than June 1. In the interim, the prosecutor requested a postponement because one of the State troopers was scheduled to attend training from May 31 through June 3. On June 7, defense counsel sent a list of four proposed trial dates to the court, the latest being July 13, 2011. On July 27, 2011, defendant forwarded to the prosecutor an expert report prepared by a different expert.
Trial was now set for August 10. On August 2, defense counsel notified the court that his expert was unavailable to testify because of a scheduling conflict, but that he and defendant would appear. On August 8, 2011, defense counsel sought an adjournment because he required emergency surgery. Defendant served a copy of his expert's report on the prosecutor on September 20, 2011.
The letter referenced a report dated July 25, 2011, the same date of the report initially served on the prosecutor.
On September 26, 2011, defense counsel received a phone call from the court advising him that the September 27 trial date had been adjourned at his request. In a letter to the judge of the same date, defense counsel denied making an adjournment request and emphasized that he was prepared to try the case. In a letter to the prosecutor dated October 2, defense counsel again noted that the discovery request for repair records was still outstanding, despite the court's order entered nine months earlier. Additional documents pertaining to the repairs were faxed by the prosecutor to defense counsel on October 7, 2011. On October 17, defense counsel filed a fourth motion to exclude the Alcotest results and dismiss the case.
Nevertheless, by letter dated October 21, defense counsel informed the judge that despite an earlier agreement with the prosecutor to try the case on November 22, the defense expert was unavailable. He supplied alternative dates for trial.
In a subsequent letter to the prosecutor, defense counsel also indicated that one of the officers was unavailable.
The matter was listed for trial on December 20, 2011. Defendant moved to dismiss, claiming that his speedy trial rights had been violated because "most of the problems relating to this case related to discovery through the State Police from the Prosecutor's office." Although the prosecutor admitted that gathering the requested discovery had played a part in the delay, she claimed that defense counsel contributed to the delay due to the unavailability of his witnesses and his medical issues. She contended that "both parties were equally responsible for the continuing saga of this matter . . . ."
The municipal court judge denied defendant's motions. He found that defense counsel had made some "sophisticated requests in terms of discovery," and "inherent in that [were] delays, especially with the repair records . . . ." The judge also noted that on two occasions, "[defendant's] experts were not available," and defense counsel's medical issues added to the delay. Importantly, the judge found that defense counsel had consented to all of the prosecution's requested adjournments. The judge stated, "[y]ou can't on the one hand say, I want my trial speedy, but then, on the other hand, say I consent to your . . . adjournment, and then, later on, all this time transpires and you want to use that time against them; [i]t doesn't work like that."
After defendant's motions were denied, the prosecutor stated that the Alcotest reading would not be used at trial because the trooper could not recall whether he had completed the required twenty-minute observation period of the defendant. Defendant then pled guilty to DWI and the remaining violations were dismissed. Defendant filed his appeal to the Law Division.
Before Judge DeLury, defendant again argued that his right to a speedy trial was violated, and the DWI summons should have been dismissed. The prosecutor contended that any delay actually benefitted defendant, as it allowed for continued negotiations that eventually led to a "better deal." She explained that information contained in the July 25, 2011 defense expert report regarding the Alcotest procedures "weighed heavily . . . in the reasoning behind [the State] permitting this reduced plea [in which all charges except DWI were dropped] . . . and the lesser penalty [was imposed]." The prosecutor suggested that "while arguing for speedy trial, . . . defendant was . . . pursuing other avenues of resolution and, in fact, that caused some of the delay." After initially reserving decision, Judge DeLury denied defendant's motion and affirmed the municipal court judge's findings "with regard to the demand for a speedy trial and demand for discovery."
In his written decision, Judge DeLury noted that, when considering a motion to dismiss on speedy trial grounds, the court must consider the four-part balancing test enunciated in the seminal case of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The court must consider: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) prejudice to the defendant occasioned by the delay. Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d 117.
As to the first factor, Judge DeLury noted that 448 days between arrest and disposition was "an admittedly substantial amount of time." However, he also observed that New Jersey courts have declined applying a bright-line test as to when any delay is deemed excessive. See State v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009) ("There is no set length of time that fixes the point at which delay is excessive."). Judge DeLury concluded that "in the totality of circumstances . . . the delay in this case [was] not manifestly unreasonable."
In State v. Cahill, 213 N.J. 253, 270 (2013), a case decided after the briefs were filed in this appeal and which we address in greater detail below, the Court again specifically "decline[d] to adopt a rigid bright-line try-or-dismiss rule."
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Analyzing the second prong of the Barker test, Judge DeLury noted that there had been "several trial adjournment requests by the State as well as by the [d]efense." In his "thorough review of the submissions of counsel," Judge DeLury found that defendant had "requested postponements on at least three occasions," while the State had "requested postponements on roughly four occasions." Judge DeLury also found that defense counsel's continued consent to the State's adjournments weighed against defendant, and the "extensive and detailed" nature of defendant's discovery requests caused some delay. The judge, therefore, distinguished the case from Tsetsekas, where we noted that "every delay was caused by the State's failure to be ready to proceed." Tsetsekas, supra, 411 N.J. Super. at 12 (emphasis added).
In assessing the third factor, Judge DeLury did note that defendant had "filed four motions to dismiss . . . and he insisted that the court rule on those motions." Contrary to defendant's assertions on appeal before us, the judge did not conclude that defendant waived his right to a speedy trial. However, Judge DeLury found that defendant "consented to all the requests for adjournment by the State and did not notify the court in writing, nor during trial hearings that he has objected to such adjournments."
Judge DeLury also concluded that, while the delay inconvenienced defendant, he ultimately was not prejudiced in part, because the trial dates were scheduled to accommodate defense counsel. The judge rejected any claim that defendant was financially prejudiced by the delay, noting defendant chose to "pursu[e] a . . . strategy" that necessitated "certain Alcotest repair reports had to be provided by the State," and required an expert's interpretation. The judge concluded that "on balance, any prejudice was not so great as to result in the extreme relief of dismissal of the charges in their entirety."
He found defendant guilty and imposed the sentence referenced above.
II.
Before us, defendant raises the following points for consideration:
POINT I: THE LOWER COURT ERRED IN NOT FINDING THE STATE'S DELAY WAS MANIFESTLY UNREASONABLE AND FAILED TO CONSIDER NEW JERSEY CASE LAW THAT DEFINES MANIFESTLY UNREASONABLE DELAYS AND THEREFORE APPLIED THE WRONG LEVEL OF SCRUTINY TO THE STATE'S ACTIONS.We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed in Judge DeLury's thoughtful and comprehensive written opinion. We add only the following.
POINT II: THE LOWER COURT ERRED IN FINDING THE 448 DAY DELAY WAS JUSTIFIED BY THE STATE AND ERRED IN FINDING THAT THE DEFENDANT FAILED TO ASSERT HIS RIGHTS.
A. The Lower Court Erred in its Finding that the Defendant Waived His Right to a Speedy Trial.
B. The Lower Court Erred in [i]ts Analysis of the State's Culpability.
POINT III: DEFENDANT SUFFERED UNDUE PREJUDICE BY THE VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL.
Defendant argues that the 448 day delay was manifestly unreasonable, citing Administrative Directive #1-84 (July 26, 1984), which provides that DWI cases should be disposed of within sixty days. However, the Court has recently reaffirmed that "the sixty-day period announced in 1984 was described as a goal rather than a bright-line rule[,]" and "'does not replace the traditional guidelines established through case law for dismissals based on lack of a speedy trial.'" Cahill, supra, 213 N.J. at 269-270 (emphasis added) (quoting Administrative Directive #1-84 (July 26, 1984)).
Indeed, contrary to defendant's assertion, case law reveals that application of the Barker test to the individual facts presented yields expectedly varying results. See, e.g., State v. Misurella, 421 N.J. Super. 538 (App. Div. 2011) (finding that 798-day delay between filing of appeal and trial de novo in Superior Court did not violate defendant's right to a speedy trial); State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006) (delay of nearly five months did not establish a speedy trial violation); compare with Tsetsekas, supra, 411 N.J. Super. at 10-14 (holding that a 344-day delay between arrest and trial violated defendant's constitutional rights).
As already noted, Judge DeLury did not find defendant waived his right to a speedy trial; he simply considered defendant's continued acquiescence to the scheduling of the trial as part of the Barker calculus. Nor did the judge excuse the State's conduct.
The judge rejected defendant's claim of prejudice for good reason. In the end, the adjournments defendant requested yielded a significant concession from the State, i.e., the decision to exclude the Alcotest results from evidence, the very relief, in part, to which defendant claimed he was entitled.
Lastly, defendant argues that even though it was decided after his trial, Cahill should apply and his conviction should be reversed. As the Court noted, however, "different facts lead to different outcomes and therefore the [disparate] results in [different] cases are reconcilable under the Barker analysis." Cahill, supra, 213 N.J. at 271. We think Cahill is sufficiently distinguishable so as to provide little support for the contention.
In Cahill, after conducting the four-part Barker balancing test, the Court affirmed our decision that found the defendant's right to a speedy trial was violated by the twenty-nine month delay between his arrest and trial. Among other things, the Court noted that "the State offer[ed] no justification for the delay[,]" "[t]he legal issues were not complicated[,]" and "[a]ll necessary witnesses were available." Id. at 273. As a result, the length of the delay "weigh[ed] heavily against the State." Ibid.
For the reasons so capably expressed by Judge DeLury, the facts of this case are quite different and compel a different result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION