STATE OF NEW JERSEY VS. MARCELO G. MONTALVOS. (17-05-0091, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4055-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARCELO G. MONTALVO,
ROBERTO R. GONZALEZ,
VIDAL M. SALMERON,
and CARLOS J. BRENES,
Defendants-Respondents.
__________________________________
Submitted January 31, 2019 – Decided February 15, 2019
Before Judges Simonelli and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-05-0091.
Gurbir S. Grewal, Attorney General, attorney for
appellant (Kayla E. Rowe, Deputy Attorney General, of
counsel and on the brief).
Proetta & Oliver, attorneys for respondent Vidal M.
Salmeron; and Joel S. Silberman, attorney for
respondents Marcelo G. Montalvo and Roberto R.
Gonzalez (William A. Proetta, and Joel S. Silberman,
on the joint brief).
PER CURIAM
On July 16, 2012, the police arrested defendants Marcelo Montalvo, Roberto
Gonzalez and Vidal Salmeron and charged them with possession of a controlled
dangerous substance (CDS), possession of a CDS with intent to distribute, money
laundering, and conspiracy. Defendants were released on bail. Four years and
eleven months later, on May 26, 2017, a grand jury indicted defendants for
second-degree conspiracy, N.J.S.A. 2C:5-2; first-degree possession with intent
to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and
N.J.S.A. 2C:2-6; third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) and
N.J.S.A. 2C:2-6; and second-degree money laundering, N.J.S.A. 2C:21-25(a).
On July 10, 2017, the trial court ordered plaintiff State of New Jersey to
address several discovery deficiencies raised by the defense. The State
subsequently informed the court that some of the requested material ,
specifically, motor vehicle recordings (MVRs) and radio transmissions of the
State troopers who conducted the stop of a tractor trailer that led to defendants'
arrest, no longer existed, due to the length of time that elapsed between the arrest
and indictment.
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On August 17, 2017, defendants filed a motion to dismiss the indictment
with prejudice based on the violation of their right to a speedy trial. The State
appeals from the April 30, 2018 Law Division order granting the motion. On
appeal, the State raises the following contentions:
POINT I
THE VALID INDICTMENT THE TRIAL COURT
IMPROPERLY DISMISSED THE INDICTMENT
AGAINST DEFENDANTS MONTALVO,
GONZALEZ, AND SALMERON.
A. Standard for Evaluating a Motion to Dismiss an
Indictment.
B. Standard of Review.
C. The Barker[1] factors balance in favor of
reinstating the grand jury indictment.
1. The first Barker factor, the length of the
delay, invites further analysis and weighs
only slightly against the State.
2. The reason for the delay weighs in favor of
maintaining the valid indictment against
defendants.
3. Defendants' dilatory speedy trial challenge
contributed to the delay.
4. No prejudice has accrued to the defendants
as a result of the delay.
1
Barker v. Wingo, 407 U.S. 514 (1972).
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We reject these contentions and affirm.
The decision to dismiss an indictment lies within the discretion of the trial
court and "will only be overturned upon a showing of a mistaken exercise of that
discretion." State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010). The
trial court's decision to dismiss an indictment should not be disturbed on appeal
unless the court's discretion was "clearly abused." State v. Hogan, 144 N.J. 216,
229 (1996). "A trial court decision will constitute an abuse of discretion where
'the decision [was] made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" State v. Salter,
425 N.J. Super. 504, 514 (App. Div. 2012) (alteration in original) (quoting State
v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010)). Thus, the court's
decision "will be reviewed only for manifest error and injustice." State v.
Torres, 183 N.J. 554, 572 (2005) (quoting State v. Ravenell, 43 N.J. 171, 182
(1964)). Applying the above standards, we discern no reason to reverse.
"The Sixth Amendment protects a defendant's right to a speedy trial after
arrest or indictment." State v. May, 362 N.J. Super. 572, 595 (App. Div. 2003)
(quoting State v. Long, 119 N.J. 439, 469 (1990)). "The right to a speedy trial
is 'fundamental' and is imposed by the Due Process Clause of the Fourteenth
Amendment on the States." Barker, 407 U.S. at 515 (footnote omitted).
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The four-part test to determine when a violation of a defendant's speedy-
trial rights contravenes due process — announced in Barker and subsequently
adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976) —
requires "[c]ourts [to] consider and balance the '[l]ength of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the defendant.'"
State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (third alteration in
original) (quoting Barker, 407 U.S. at 530). "No single factor is a necessary or
sufficient condition to the finding of a deprivation of the right to a speedy trial."
Id. at 10. Our Supreme Court has "decline[d] to adopt a rigid bright-line try-or-
dismiss rule," instead continuing its commitment to a "case-by-case analysis"
under the Barker balancing test; it has acknowledged "that facts of an individual
case are the best indicators of whether a right to a speedy trial has been violated."
State v. Cahill, 213 N.J. 253, 270-71 (2013).
Length of Delay
The first factor — length of delay — is a "triggering mechanism" and
"[u]ntil there is some delay which is presumptively prejudicial, there is no
necessity" for the court to balance the other factors. Barker, 407 U.S. at 530.
"[T]he length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case." Id. at 530-31 (footnote omitted)
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(adding "the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge"). If a delay is
found to be presumptively prejudicial, "such a delay will trigger consideration
of the other factors." Cahill, 213 N.J. at 264.
Whether a delay is considered presumptively prejudicial "depends on the
circumstances of the individual case, including the nature of the charged
offense" and requires a consideration of the amount of time customarily required
to dispose of similar charges. Id. at 264-65. Nevertheless, "most decisions have
identified a period of one year or slightly more than one year as the time 'after
which . . . it makes sense to inquire further into why the defendant has not been
tried more promptly.'" Id. at 265 (quoting 5 Wayne R. LaFave et al., Criminal
Procedure § 18.2(b) at 119 (3d ed. 2007)). "[O]nce the delay exceeds one year,
it is appropriate to engage in the analysis of the remaining Barker factors." Id.
at 266.
Here, the motion judge found the nearly five-year delay between
defendants' arrest and indictment weighed in defendants' favor. The State
concedes the length of delay triggered further analysis of the remaining Barker
factors. However, the State argues the judge should have weighed this factor
only slightly against it because defendants were indicted within the time period
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set forth in N.J.S.A. 2C:1-6(b), which provides, "[a] prosecution for a crime
must be commenced within five years after it is committed[.]"
The State cites no authority setting a statutory time period as the length of
time fixing the point at which delay is excessive. To the contrary, the right to a
speedy trial is "necessarily relative" and depends on the circumstances of each
individual case. Barker, 407 U.S. at 522 (quoting Beavers v. Haubert, 198 U.S.
77, 87 (1905)). Although the Barker Court recognized that some legislatures
and courts had identified a specific time after which a criminal charge would be
subject to dismissal, it held there was no constitutional basis for requiring that
the speedy trial right be so quantified. Id. at 523.
Our Supreme Court has "declined . . . to fix a date certain after which
prejudice is presumed or the complaint or indictment must be dismissed,
preferring instead to evaluate each claim of denial of a speedy trial on a case-
by-case basis." Cahill, 213 N.J. at 269. We have held that, in evaluating a
speedy trial claim, "[t]here is no set length of time that fixes the point at which
delay is excessive." Tsetsekas, 411 N.J. Super. at 11. Accordingly, our courts
do not view the right to a speedy trial in reference to any narrowly defined
statutory time-period or procedural rules and, instead, have adopted the
understanding that "the right to a speedy trial is relative and depends upon [the]
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circumstances." Szima, 70 N.J. at 200. This clearly contradicts the State's
reliance on the statute of limitations. The statute of limitations is separate and
distinct from a defendant's right to a speedy trial and there is no precedent to
support a consideration of the statute of limitations in the speedy trial context.
Thus, the judge correctly found the length of delay weighed in defendants' favor.
Reason for the Delay
"Barker's second prong examines the length of a delay in light of the
culpability of the parties." Tsetsekas, 411 N.J. Super. at 12. Trial courts, in
reviewing "the chronology of the delay," should "divid[e] the time into discrete
periods of delay" and attribute each delay to the State, the defendant or the
judiciary. May, 362 N.J. Super. at 596 (affirming a trial court which examined
the chronology of the case as discrete periods of delay). Thereafter, "different
weights should be assigned to different reasons" proffered to justify a delay.
Barker, 407 U.S. at 531. Purposeful delay tactics weigh heavily against the
State. Tsetsekas, 411 N.J. Super. at 12. "A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant."
Barker, 407 U.S. at 531. "Delay caused or requested by the defendant is not
A-4055-17T3
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considered to weigh in favor of finding a speedy trial violation." State v. Farrell,
320 N.J. Super. 425, 446 (App. Div. 1999).
The State's reason for the delay in this case was that the Deputy Attorney
General (DAG) originally assigned to the case left his position and his cases
were reassigned to a new DAG. The new DAG checked the status of each
reassigned case on PROMIS/Gavel, the court's system, where the matter was
listed by the court as "closed." The DAG relied on this listing, regarded the case
as closed, and therefore failed to take any action in the case until almost five
years later when he discovered the information provided on PROMIS/Gavel had
been inaccurate. The State argued that this was a valid reason for the delay
because the DAG relied on information provided by the court, misunderstood
the PROMIS/Gavel listing of the case as "closed," and initiated the indictment
as soon as he realized the matter was not closed.
The judge disagreed, finding as follows:
the state's only explanation for the delay is that when a
new deputy attorney general was assigned to the case,
the case was listed as closed in PROMIS/Gavel, which
is the court system and, therefore, the case was regarded
as closed for an extended period of time, that being
years have gone by as opposed to making an immediate
inquiry either with the [c]ourts, defense counsel or even
your previous deputy attorney general who was
assigned to this case.
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The state appears to be passing the blame off to
an unknown third party who is not responsible for
prosecuting cases. It's their responsibility. Therefore,
[the c]ourt finds that [the second] factor[] weigh[s] in
favor of the defendants as the . . . state has failed to set
forth a valid reason . . . for indicting defendant[s] nearly
five years after [their] initial arrest.
Accordingly, the judge weighed the second factor in defendants' favor.
The State argues the judge should have weighed the second Barker factor
in its favor because the reason for the delay was valid and quickly remedied, and
the judge failed to consider the full circumstances and engage in a proper legal
analysis of the reason for the delay. 2
2
The State also distinguishes this matter from State v. Misurella, 421 N.J.
Super. 538 (App. Div. 2011) and May, where the delays were found to be neutral
and were weighed only slightly against the State. Defendants also distinguish
these cases and argue Misurella does not apply here because there, the defendant
was asserting his right to a speedy "de novo" appeal, and the right to a speedy
appeal is separate and distinct from the right to a speedy trial. Although they do
so for different reasons, both parties agree the present case is distinguishable
from Misurella and May. However, as to defendants' argument that Misurella
is inapplicable, there, we clearly applied the Barker factors and noted "the same
framework and standard apply to evaluating undue delay on appeal as applies to
a defendant's right to a speedy trial in the trial court." Misurella, 421 N.J. Super.
at 544. Thus, defendants' argument that the right to a speedy trial and the right
to a speedy appeal "are not analogous" is unsupported and without merit. Ibid.;
see also State v. LeFurge, 222 N.J. Super. 92, 98 (App. Div. 1988) (recognizing
that appellate delays are evaluated under the speedy trial framework and "against
the traditional standards enunciated in Barker").
A-4055-17T3
10
The court's erroneous listing of the case as "closed" on PROMIS/Gavel is
not attributable to defendants, and does not constitute "[a] deliberate attempt [by
the State] to delay the trial in order to hamper the defense[.]" Barker, 407 U.S.
at 531. Nevertheless, "[a]s a general rule . . . 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." Farrell, 320 N.J. Super. at
451. Thus, although the State alleges the delay was caused by its reasonable
reliance on the court's error, the error is nevertheless attributable to the State for
purposes of this analysis.
Because the court's error largely caused the delay, it should be regarded
as a "neutral" reason for the delay. Barker, 407 U.S. at 531. A neutral reason
is weighed against the State, but "should be weighted less heavily" than if the
State had deliberately caused the delay. Ibid. However, it should nevertheless
be considered "since the ultimate responsibility for such circumstances must rest
with the government rather than with the defendant." Ibid.; see also Farrell, 320
N.J. Super. at 451(delays attributed to the court itself should be weighed less
heavily but nevertheless should be considered). Thus, the judge should have
slightly weighed the reason for the delay against the State. This error, however,
does not warrant reversal.
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Defendant's Assertion of His Rights
In analyzing a defendant's assertion of speedy-trial rights, a court may
consider "the frequency and force of the [defendant's] objections" when
assessing whether the defendant properly invoked the right. Barker, 407 U.S. at
529. This third factor "is closely related to the other factors" and "is entitled to
strong evidentiary weight in determining whether the defendant is being
deprived of the right." Id. at 531-32.
"The assertion of a right to a speedy trial is measured heavily in the speedy
trial analysis." Cahill, 213 N.J. at 274. Although a defendant does not have an
obligation to assert his right to a speedy trial, "'[w]hether and how a defendant
asserts his right is closely related' to the length of the delay, the reason for the
delay, and any prejudice suffered by the defendant." Id. at 266 (alteration in
original) (quoting Barker, 407 U.S. at 531). "The defendant's assertion of his
speedy trial right, then, is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-
32; see also Cahill, 213 N.J. at 266 ("the assertion of a right to a speedy trial
. . . is a factor entitled to strong weight when determining whether the state has
violated the right"). "[F]ailure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532.
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Here, the judge found the third factor weighed in defendants' favor
because defendants were not obligated to bring themselves to trial and they filed
their motion to dismiss three months after they were indicted. The State argues
the judge should have heavily weighed this factor against defendants.
Although the judge correctly noted defendants are not obligated to bring
themselves to trial, the judge erred in finding this factor weighed in their favor.
Furthermore, although a defendant has no obligation to bring himself to trial, a
defendant does have "some responsibility to assert a speedy trial claim" and
"failure to assert the right would make it difficult for a defendant to prove that
he was denied a speedy trial." Szima, 70 N.J. at 200; see Barker, 407 U.S. at
531-32. Thus, if a defendant fails to assert his right to a speedy trial, such failure
will weigh against a determination that the right has been violated. See May,
362 N.J. Super. at 598 (where defendant waited a long time before asserting his
speedy trial right, his failure to assert the right weighed "against any
determination that the right was violated").
Defendants did not assert their right to a speedy trial prior to filing their
motion to dismiss and did not inquire about the status of their charges at any
time between their arrest on July 16, 2012 and their indictment on May 26, 2017.
See State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002) (defendant never
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inquired as to when he would be prosecuted or demanded a speedy trial). By
weighing this factor in defendants' favor and relying solely on the fact that they
had no obligation to assert their right, the judge engaged in a flawed and
incomplete analysis of this factor, ignoring the fact that "[f]ailure to assert the
right is a factor that must be considered in any analysis of an asserted speedy
trial violation." Cahill, 213 N.J. at 274. Nevertheless, this error does not
warrant reversal.
We have recognized "there is an obvious difference in the weight to be
given to defendants' inaction prior to indictment and subsequent to indictment."
State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). We stated:
Under New Jersey practice a dismissal of a criminal
complaint has no finality for the benefit of a defendant,
and may be followed by grand jury consideration and
indictment. Hence, it appears inappropriate to assign
much weight or significance to the failure of a
defendant and his counsel to go through the abortive
process of moving for a dismissal of a complaint prior
to the return of an indictment.
[Ibid.]
Where defendants move for dismissal "promptly after the return of the
indictment . . . their right to a speedy trial should not hinge upon their failure to
move prior thereto." Ibid. Thus, although the judge here should have considered
defendants' failure to assert their right to a speedy trial, it is not a necessary
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precondition to dismissal. Ibid. Thus, the judge should have weighed this factor
only slightly against defendants.
Prejudice to the Defendant
The fourth prong of the Barker test considers the prejudice to a defendant
caused by delay. Barker, 407 U.S. at 532. "[P]roof of actual trial prejudice is
not 'a necessary condition precedent to the vindication of the speedy trial
guarantee.'" Tsetsekas, 411 N.J. Super. at 13-14 (quoting Merlino, 153 N.J.
Super. at 15). Rather,
significant prejudice may also arise when the delay
causes the loss of employment or other opportunities,
humiliation, the anxiety in awaiting disposition of the
pending charges, the drain in finances incurred for
payment of counsel or expert witness fees and the
"other costs and inconveniences far in excess of what
would have been reasonable under more acceptable
circumstances."
[Id. at 13 (quoting Farrell, 320 N.J. Super. at 452).]
The impairment of an accused's defense is considered "the most serious since it
[goes] to the question of fundamental fairness." Szima, 70 N.J. at 201. "[T]he
inability of a defendant adequately to prepare his case skews the fairness of the
entire system." Barker, 407 U.S. at 532.
It is undisputed that the delay in this case resulted in the loss or destruction
of the MVRs and radio transmissions. During the stop, the troopers searched
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the sleeping berth of the tractor-trailer and found suspected cocaine. Defendants
asserted they needed the MVRs and radio transmissions to prove the stop was a
ruse; however, the State conceded this fact.
The judge found the fourth factor weighed in defendants' favor,
emphasizing the general anxiety to defendants and that the unavailability of the
MVRs and radio transmissions potentially impaired their ability to defend
against the present charges. The judge noted that Montalvo had also asserted
personal prejudice because he previously worked in the education field and has
been unable to seek or obtain a job in his respective field due to required
background checks.
The State argues the judge should have weighed this factor in its favor
because defendants have not suffered a great amount of prejudice, they failed to
identify any particular prejudice, and their purported anxiety should neutrally
impact the analysis because such anxiety is present in every case.
It is well-established that a defendant may be "disadvantaged by restraints
on his liberty and by living under a cloud of anxiety, suspicion, and often
hostility." Barker, 407 U.S. at 533. Furthermore, our courts have noted that
"every unresolved case carries with it some measure of anxiety." Cahill, 213
N.J. at 274-75. "We must assume that any person who has had limited
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involvement with the criminal justice system would experience some measure
of anxiety by the existence of a pending and long-unresolved charge." Id. at
275.
Applying this understanding, the Court in Cahill found that the
generalized anxiety to the defendant, as well as the defendant's self-imposed
limitations on his employment options, caused the fourth factor to weigh in favor
of dismissing the indictment. 3 Id. at 275-76. Similarly, in Merlino, 153 N.J.
Super. at 15, we found that "[a]lthough there was no showing of tangible
prejudice to defendants . . . the facts support the determination that the unusual
period of delay, the absence of justifiable reasons and the anxiety and concern
inherent in an unresolved criminal charge outweigh the absence of actual trial
prejudice to defendants." We noted that "proof of such actual prejudice is not a
necessary condition precedent to the vindication of the speedy trial guarantee."
Ibid. Under this framework, is it clear that general anxiety caused by defendants'
3
The defendant in Cahill outlined the employment choices he made in light of
the impending suspension of his driver's license to support his claim that he had
been prejudiced by the delay. The defendant asserted that he sought short-term
employment "that did not require a driver's license or could be accessed by mass
transportation or a ride from a friend." Cahill, 213 N.J. at 275. Although the
Court recognized that these were "self-imposed limitations," it noted they
nevertheless limited the defendant's employment options and therefore weighed
in favor of a finding of personal prejudice. Id. at 275-76.
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pending charges and the limitations on Montalvo's employment opportunities,
even if self-imposed, are sufficient for a finding of prejudice.
The State also argues defendants were not prejudiced by the unavailability
of the MVRs and radio transmissions because neither party has access to this
evidence. In evaluating the prejudice to defendants, the judge found that the
unavailability of this discovery potentially impaired their ability to defend
against the charges. Although this evidence is unavailable to the parties, the
State conceded what defendants hoped to prove from it ̶̶ ̶̶ that the stop was a
ruse.
Defendants counter this point in a footnote, claiming the State's
concession that the stop was a "ruse" addressed their request for the policies of
State Police regarding directed stops, and the concession was not relevant to the
recordings rendered unavailable. However, at oral argument, defendants
conceded they intended to use the unavailable evidence to prove the stop was a
ruse. Concessions made before the trial court foreclose a contrary argument on
appeal. Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000). Thus,
defendants cannot now assert that the State's concession was unrelated to the
unavailable evidence. Because the State conceded the stop was a ruse, the
unavailability of the evidence did not impair defendants' ability to defend.
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Although defendants were deprived of the evidence, this was "in no way
significant to the outcome" due to the State's concession. See Barker, 407 U.S.
at 534.
The judge's finding of prejudice nevertheless does not constitute an abuse
of discretion because a "demonstration of prejudice is not strictly limited to a
'lessened ability to defend on the merits.'" Farrell, 320 N.J. Super. at 446
(quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974)).
"Prejudice can also be found from employment interruptions, public obloquy,
anxieties concerning the continued and unresolved prosecution, the drain on
finances, and the like." Id. at 452 (quoting Smith, 131 N.J. Super. at 368 n.2).
The judge also found defendants suffered prejudice due to employment
interruptions and anxieties concerning the unresolved prosecution. Thus, th e
judge properly weighed this factor in defendants' favor.
In sum, the judge considered the conduct of both the State and the
defendants. Although the judge erred in her analysis of some of the Barker
factors, she applied the correct standard for evaluating a motion to dismiss an
indictment on speedy trial grounds, thoroughly reviewed the parties' arguments,
and engaged in a detailed analysis of the relevant factors. As in Merlino,
the judge below undertook the difficult task of
balancing all the relevant factors relating to the
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respective interests of the State and the defendants,
applied his subjective reactions to the particular
circumstances and arrived at a just conclusion. Such a
determination at the trial level should not be overturned
unless clearly erroneous.
[Merlino, 153 N.J. Super. at 17 (citations omitted).]
We are satisfied the judge's dismissal of the indictment was not an abuse of
discretion.
Affirmed.
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