STATE OF NEW JERSEY VS. EDWARD FORCHION A/K/A NJ WEEDMAN(17-02-0105, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0161-17T6
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
September 13, 2017
EDWARD FORCHION, a/k/a
NJ WEEDMAN, APPELLATE DIVISION
Defendant-Appellant.
___________________________
Submitted August 28, 2017 — Decided September 13, 2017
Before Judges Messano, Manahan and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
17-02-00105.
John Vincent Saykanic, attorney for appellant.
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (John P. Boyle, Jr.,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
GILSON, J.A.D.
Defendant Edward Forchion has been detained in jail since
early March 2017, in accordance with the Criminal Justice Reform
Act (CJRA), N.J.S.A. 2A:162-15 to -26. He contends that the time
for his trial under the speedy trial provisions of the CJRA is
about to be reached. On leave granted, he appeals three orders
that found a total of sixty-seven days of "excludable time,"
N.J.S.A. 2A:162-22(a), under the CJRA. We hold that our standard
of review of the period to "be excluded in computing the time in
which a case shall be indicted or tried" under N.J.S.A. 2A:162-
22(b) is de novo. We also hold that we apply the traditional
deferential standard of review to the trial court's factual
findings concerning the amount of time excluded. Applying these
standards, we affirm the orders that found sixty-seven days of
excludable time.
We summarize the relevant facts and procedural history from
the record. On February 28, 2017, defendant was indicted for
second-degree and third-degree witness tampering, N.J.S.A. 2C:28-
5(a). The indictment was sealed and a warrant issued. Prior to
the issuance of the witness tampering indictment, defendant had
been indicted on four drug charges and had been released pretrial.
On March 3, 2017, defendant was arrested on the witness
tampering charges and, on March 6, 2017, the indictment was
unsealed. The State moved for defendant's pretrial detention on
the charges of witness tampering, and on March 7, 2017, the trial
court granted that motion and ordered defendant detained.
Defendant appealed and we affirmed the trial court's
detention order in an order issued on April 18, 2017. Defendant
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sought reconsideration, but we denied that motion. In denying the
motion for reconsideration, we stated that "[t]he denial is without
prejudice to defendant moving before the Criminal Part to obtain
discovery . . . and to move to reopen the detention hearing based
on any material information contained within that discovery."
While defendant has been detained, three pretrial motions
were filed and decided. First, on May 9, 2017, defense counsel
filed a motion to withdraw. That motion was argued on May 19,
2017, and granted on May 22, 2017. Second, on June 9, 2017,
defendant filed a motion to represent himself. That motion was
granted on June 22, 2017. Third, on June 27, 2017, defendant
filed a motion to reopen his detention hearing. Following multiple
submissions by the State and defendant, that motion was argued on
August 1, 2017, and denied on August 4, 2017. The court also
issued a written opinion explaining the reasons for the denial of
defendant's motion to reopen the detention hearing.1
On August 2 and 4, 2017, the trial court filed three orders,
with accompanying written decisions, that excluded sixty-seven
days to account for the time it took to resolve the three pretrial
1
Defendant moved for leave to appeal the order denying his motion
to reopen the detention hearing. We, however, denied that motion
because defendant had already appealed his detention and he failed
to make a material showing that there was new information
warranting a reopening of the detention hearing.
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motions. Consequently, those sixty-seven days were excluded for
purposes of calculating the 180-day speedy trial period prescribed
in the CJRA. See N.J.S.A. 2A:162-22(a)(2)(a). As a result, the
date by which the State has to try, release, or again move to
detain defendant moved from September 1, 2017, to November 6,
2017.2
On this appeal, defendant contends that the three periods of
excludable time found by the trial court should not be counted
against him "in the interests of justice." We disagree and affirm.
Eligible detained defendants are subject to the speedy trial
provisions of the CJRA. Following a defendant's detention under
the CJRA, the State generally has ninety days to indict defendant,
N.J.S.A. 2A:162-22(a)(1)(a), and 180 days after the indictment to
try defendant, N.J.S.A. 2A:162-22(a)(2)(a). Both periods allow
for "excludable time" and for the State to move to continue
detaining defendant provided the State can make certain showings.
N.J.S.A. 2A:162-22(a)(1), (2).
Applicable here is N.J.S.A. 2A:162-22(a)(2)(a), which
provides in pertinent part:
2
We have calculated these dates from March 6, 2017, when the
indictment was unsealed, in accordance with N.J.S.A. 2A:162-
22(a)(2)(a) and Rule 3:25-4(c)(1). Calculating from that date,
the initial 180-day period ended on September 1, 2017. Adding the
sixty-seven days of excludable time brings the date to November
6, 2017.
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An eligible defendant who has been
indicted shall not remain detained in jail for
more than 180 days on that charge following
the return or unsealing of the indictment,
whichever is later, not counting excludable
time for reasonable delays as set forth in
subsection b. of this section, before
commencement of the trial.
[Ibid. (emphasis added).]
The statute goes on to state:
If the trial does not commence within that
period of time, the eligible defendant shall
be released from jail unless, on motion of the
prosecutor, the court finds that a substantial
and unjustifiable risk to the safety of any
other person or the community or the
obstruction of the criminal justice process
would result from the eligible defendant's
release from custody, so that no appropriate
conditions for the eligible defendant's
release could reasonably address that risk,
and also finds that the failure to commence
trial in accordance with the time requirement
set forth in this subparagraph was not due to
unreasonable delay by the prosecutor.
[N.J.S.A. 2A:162-22(a)(2)(a); see also R.
3:25-4(c)(1), (2) (setting forth the same
deadline and procedure to be followed when
trial is not commenced).]
The CJRA identifies thirteen periods that "shall be excluded"
when computing the date by which trial must commence. N.J.S.A.
2A:162-22(b)(1)(a)-(m). These excludable periods are also set
forth in Rule 3:25-4(i). Among those exclusions is the time from
filing to the final disposition of a pretrial motion made by either
the prosecutor or detained defendant. N.J.S.A. 2A:162-
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22(b)(1)(c); R. 3:25-4(i)(3). Also excluded are "other periods
of delay not specifically enumerated if the court finds good cause
for the delay," N.J.S.A. 2A:162-22(b)(1)(l), and "[a]ny other time
otherwise required by statute." N.J.S.A. 2A:162-22(b)(1)(m);
accord R. 3:25-4(i)(12), (13).
As to excludable time relating to pretrial motions, Rule
3:25-4(i)(3) further provides:
(A) If briefing, argument, and any evidentiary
hearings required to complete the record are
not complete within 60 days of the filing of
the notice of motion, or within any longer
period of time authorized pursuant to [Rule]
3:10-2(f), any additional time shall not be
excluded.
(B) Unless the [c]ourt reserves its decision
until the time of trial, if the [c]ourt does
not decide the motion within 30 days after the
record is complete, any additional time during
which the motion is under advisement by the
[c]ourt shall not be excluded unless the court
finds there are extraordinary circumstances
affecting the court's ability to decide the
motion, in which case no more than an
additional 30 days shall be excluded.
(C) If the [c]ourt reserves its decision on a
motion until the time of trial, the time from
the reservation to disposition of that motion
shall not be excluded. When the court reserves
a motion for the time of trial, the court will
be obligated to proceed directly to voir dire
or to opening statements after the disposition
of the motion.
The CJRA has been in effect since January 1, 2017, and to
date there are no New Jersey reported cases addressing excludable
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time under the CJRA. Moreover, unlike many other states, New
Jersey has not prescribed a specific time limit, consistent with
constitutional standards, for prosecution of criminal offenses nor
identified periods that must be excluded when calculating that
deadline. State v. Cahill, 213 N.J. 253, 267-72 (2013). Instead,
New Jersey courts resolve constitutional speedy trial claims by
way of the four-factor analysis set forth by the United States
Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.
2182, 2192, 33 L. Ed. 2d 101, 117 (1972). Cahill, supra, 213 N.J.
at 271.
Here, defendant has not argued that his constitutional speedy
trial rights have been violated. Instead, defendant relies
exclusively on the speedy trial provisions of the CJRA.
Accordingly, we look to an analogous federal statute for guidance
in interpreting the speedy trial provisions of the CJRA.
"In many respects, the text of the [CJRA] follows the federal
Bail Reform Act of 1984 [(federal Bail Reform Act)], 18 U.S.C.A.
§§ 3141 to 3156 . . . ." State v. Robinson, 229 N.J. 44, 56
(2017). The New Jersey Legislature considered the federal Bail
Reform Act when it drafted New Jersey's CJRA. Public Hearing on
SCR-128 Before the S. Law & Pub. Safety Comm., 2014 Leg., 216th
Sess. 2 (N.J. 2014) (statement of Sen. Donald Norcross, Chair, S.
Law & Pub. Safety Comm.). Thus, relevant federal case law
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interpreting the federal Bail Reform Act is instructive in
interpreting the CJRA. State v. Ingram, ___ N.J. ___, ___ (2017)
(slip op. at 24-25).3
The federal Bail Reform Act does not contain a speedy trial
provision. Instead, the federal Speedy Trial Act of 1974 (federal
Speedy Trial Act), 18 U.S.C.A. §§ 3161 to 3174, mandates that a
defendant must be tried within seventy days from the later of the
filing of the indictment or the date defendant appeared before a
judicial officer. 18 U.S.C.A. § 3161(c)(1). The federal Speedy
Trial Act also identifies periods of delay that "shall be excluded"
in computing the time within which trial must commence, including
"delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion." 18 U.S.C.A. § 3161(h)(1)(D).
Under the federal Speedy Trial Act, the excluded time includes
both the day of the event giving rise to the exclusion and the
last day of the exclusion. United States v. Novak, 715 F.2d 810,
813 n.6 (3d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S. Ct.
1293, 79 L. Ed. 2d 694 (1984). On its face, the federal Speedy
Trial Act does not require that the time taken to resolve a
3
The Legislature also considered the District of Columbia's
statutory scheme for pretrial detention, D.C. Code §§ 23-1321 to
-1333. See State v. Robinson, supra, 229 N.J. at 56.
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pretrial motion be "reasonably necessary" to be excludable, or
that the motion itself be reasonably necessary. Henderson v.
United States, 476 U.S. 321, 325-30, 106 S. Ct. 1871, 1874-77, 90
L. Ed. 2d 299, 305-08 (1986); United States v. Morales, 875 F.2d
775, 777 (9th Cir. 1989). Instead, the Act leaves the matter of
excessive and abusive use of the exclusion to the federal courts
to address through the adoption of appropriate rules. Henderson,
supra, 476 U.S. at 327-28, 106 S. Ct. at 1875-76, 90 L. Ed. 2d at
307.
Types of pretrial motions to which the federal exclusion has
been deemed applicable include: (1) motions to review pretrial
detention determinations, see, e.g., United States v. Hohn, 8 F.3d
1301 (8th Cir. 1993), opinion vacated on other grounds, 524 U.S.
236, 118 S. Ct. 1969, 141 L. Ed. 2d 242 (1998); United States v.
Wirsing, 867 F.2d 1227 (9th Cir. 1989); (2) motions to proceed
self-represented, see, e.g., United States v. Willie, 941 F.2d
1384 (10th Cir. 1991), cert. denied, 502 U.S. 1106, 112 S. Ct.
1200, 117 L. Ed. 2d 440 (1992); and (3) motions by counsel to
withdraw, see, e.g., United States v. Brock, 782 F.2d 1442 (7th
Cir. 1986).
Factual findings under the federal Speedy Trial Act are
reviewed for "clear error," while legal conclusions are reviewed
de novo. United States v. Watkins, 339 F.3d 167, 171 n.2 (3d Cir.
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2003), cert. denied, 540 U.S. 1221, 124 S. Ct. 1505, 158 L. Ed.
2d 157 (2004); Hohn, supra, 8 F.3d at 1303; Wirsing, supra, 867
F.2d at 1229; see also United States v. Willaman, 437 F.3d 354,
357 (3d Cir. 2006) (an appellate court exercises "plenary review
over the district court's application of the Speedy Trial Act"),
cert. denied, 547 U.S. 1208, 126 S. Ct. 2902, 165 L. Ed. 2d 919
(2006).
Initially, we address our standards of review. The question
of whether a particular period or motion is excludable under
N.J.S.A. 2A:162-22(b) is a question of law that appellate courts
review de novo. See State v. Jones, 224 N.J. 70, 85 (2016). In
contrast, we apply a deferential standard of review to the fact-
finding concerning the amount of excludable time. State v. Brown,
216 N.J. 508, 517 (2014). Thus, we will not disturb the trial
court's findings as to the amount of excludable time so long as
those findings are supported by "sufficient credible evidence in
the record." Ibid.
Applying these standards here, we hold that the trial court
correctly determined that the three motions were "motion[s] made
before trial" within the meaning of N.J.S.A. 2A:162-22(b)(1)(c).
Specifically, defense counsel's motion to be relieved, defendant's
motion to represent himself, and defendant's motion to reopen the
detention hearing were all motions subject to excludable time.
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Accordingly, "[t]he time from the filing to the final disposition
of [those] motion[s]" were required to be "excluded in computing
the time in which [defendant's] case shall be . . . tried."
N.J.S.A. 2A:162-22(b)(1)(c).
We defer to the trial court's findings concerning the amount
of excludable time. There were sufficient facts in the record to
support the trial court's finding that the three motions took a
total of sixty-seven days from filing to final disposition by the
trial court. Specifically, defense counsel filed a motion to
withdraw on May 9, 2017, and that motion was decided on May 22,
2017—–a period of fourteen days; defendant filed a motion to
represent himself on June 9, 2017, and that motion was decided on
June 22, 2017—–a period of fourteen days; and defendant filed a
motion to reopen his detention hearing on June 27, 2017, and that
motion was decided on August 4, 2017—–a period of thirty-nine
days. As to the last motion, thirty-nine days are excludable
because the briefing and argument on the motion were completed
within sixty days of filing the notice of motion. See R. 3:25-
4(i)(3)(A).
Finally, we note that the necessity of, and the merits of,
the motions are not relevant on this appeal absent some abuse,
which has not been argued or demonstrated here. Accordingly, "the
interests of justice" do not support vacating the two orders of
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August 2, 2017, and the one order of August 4, 2017, that address
excludable time. Instead, those orders are affirmed.
Affirmed.
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