STATE IN THE INTEREST OF T.C. (FJ-01-0369-20, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3585-19T4
STATE OF NEW JERSEY
IN THE INTEREST OF T.C.1
________________________
Argued telephonically September 21, 2020 –
Decided October 6, 2020
Before Judges Rothstadt, Mayer and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FJ-01-0369-20.
Elizabeth C. Jarit, Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Elizabeth C. Jarit, of counsel and
on the briefs).
John J. Lafferty, IV, Assistant Prosecutor, argued the
cause for respondent State of New Jersey (Damon G.
Tyner, Atlantic County Prosecutor, attorney; John J.
Lafferty, IV, of counsel and on the brief).
PER CURIAM
1
We use initials in accordance with R. 1:38-3(d)(8).
Upon leave granted, defendant T.C. appeals from an April 16, 2020 order
denying a motion to dismiss a juvenile complaint charging him with murder.
The murder charges against defendant stemmed from a shooting that occurred
on May 27, 1996, when defendant was seventeen years old. Despite
investigating the shooting death in 1996 and 1997, it was not until October 17,
2019 that defendant was charged with first-degree murder, N.J.S.A. 2C:11-
3(a)(1), and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3). Defendant,
now age forty-one, sought to dismiss the complaint based on the State's
unreasonable prosecutorial delay. The motion judge rejected defendant's
arguments for the reasons placed on the record on April 16, 2020, and in an
April 28, 2020 written amplification. We affirm.
The facts leading to the charges against defendant are undisputed. The
victim was shot and killed during a drug-related robbery in May 1996. The
police interviewed several witnesses to the shooting between May 1996 and
January 1997. According to the witnesses, defendant arranged to purchase
marijuana from the victim. While defendant was negotiating with the victim to
purchase drugs, co-defendant Lamarc Rex demanded the victim turnover his
drugs and money. When the victim refused, Rex shot him twice with a .22
caliber handgun.
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Between 1997 and 2019, four different prosecutors had an opportunity to
review the case and pursue charges. In 2019, twenty-three years after the
murder, the current Atlantic County Prosecutor filed charges against defendant.
Defendant moved to dismiss the charges, asserting the State's twenty-three
year delay in prosecuting violated his right to due process and contravened the
concept of fundamental fairness. Defendant argued there was no legitimate
reason for the prosecutorial delay, and he suffered actual prejudice as a result.
In support of his prejudice claim, defendant argued: (1) "his inability to avail
himself of rehabilitative services through the juvenile court"; (2) absen ce of
"records that could have substantiated his claim of trauma he experienced in his
youth"; (3) "unique opportunities he may have received as a juvenile . . . are not
available to him as an adult"; (4) "inability to prepare a defense because he is
unable to interview State witnesses and potential defense alibi witnesses, some
of whom are deceased, incarcerated[,] or otherwise unavailable"; and (5) the
lengthy delay challenges his "ability to recall his own actions of the day."
He also argued there was no additional evidence or renewed investigation
prior to the State's filing of the charges. According to defendant, the significant
delay in the State's charging him with murder resulted in the loss of material
witnesses. In addition, because defendant was forty-one years old at the time
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the charges were filed, he was not eligible for prosecution as a juvenile. Further,
defendant claimed various records helpful to his defense were no longer
available.2
In considering defendant's motion, the judge applied the two-prong
analysis in State v. Aguirre, 287 N.J. Super. 128, 132 (App. Div. 1996). Under
that analysis, the defendant bears the burden of proving the State lacked any
legitimate reason for the prosecutorial delay and the defendant suffered actual
prejudice as a result of the delay. Ibid.
In assessing the first prong of Aguirre, the judge explained "the State has
relied solely on the 1996 and 1997 reports gathered during its original
investigation" and offered no new evidence against defendant. As a result, the
judge concluded "the State has not demonstrated that it had [a] legitimate reason
for the [twenty-three] year delay."
However, in applying the second prong of Aguirre, the judge concluded
defendant failed to demonstrate actual and substantial prejudice that would
2
Defendant claimed the following information was no longer available: files
maintained by the Division of Child Protection and Permanency (Division)
regarding defendant and a sexual assault allegation from 1994; files related to
the murder of defendant's aunt in defendant's childhood home; and defendant's
school records.
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deprive him of the right to a fair trial. The judge explained defendant failed to
set forth information he claims the unavailable witnesses would have offered.
She noted the speculative nature of the prejudice offered by defendant and
determined vague and conclusory assertions of prejudice based simply on the
passage of time fell short of satisfying defendant's burden. See Aguirre, 237
N.J. Super. at 134. The judge expressly found
[defendant's] argument regarding the prejudice he
suffered based on the unavailability of witnesses due to
the passage of time is speculative and conclusory.
Because [defendant] has not specified with particularity
which witnesses are unavailable, has not provided
concrete evidence regarding how those witnesses
would have assisted his defense, and has not attempted
to contact those witnesses, he has not established actual
prejudice by prosecutorial delay due to the
unavailability of witnesses.
The judge also rejected defendant's actual prejudice argument based on
his inability to avail himself of the juvenile justice programs and services that
would have been available if the State filed the charges in 1996. The judge
found "[d]efendant has not demonstrated how the lack of juvenile services
jeopardizes his right to a fair trial." Nor did defendant "address whether similar
supportive services and programs are available to him now, as an adult."
On appeal, defendant raises the following argument:
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THE PROSECUTION OF [T.C.] FOR A TWENTY-
THREE-YEAR-OLD CRIME FOR WHICH NO NEW
EVIDENCE HAS BEEN OBTAINED SINCE 1997,
WHERE THE GOVERNMENT PUT FORWARD NO
REASONABLE OR LEGITIMATE REASON FOR
THE DELAY, AND WHERE EVIDENCE
NECESSARY TO THE DEFENDANT'S DEFENSE
HAS BEEN LOST DUE TO THE PASSAGE OF
TIME, VIOLATES DUE PROCESS AND
FUNDAMENTAL FAIRNESS.
Defendant's contention runs contrary to our Supreme Court's
pronouncement relating to pre-indictment delay. In State v. Townsend, 186
N.J. 473 (2006), the Court held that a defendant alleging a due process violation
based on a twenty-year pre-indictment delay had the burden of satisfying two
specific prongs. First, "the State's delay in seeking the indictment was a
deliberate attempt to gain advantage over [the defendant]," and second, "the
delay caused defendant actual prejudice in his ability to defend the charge."
Townsend, 186 N.J. at 489 (citing United States v. Gouveia, 467 U.S. 180, 192
(1984)). We have held a defendant asserting prejudice resulting from the State's
pre-indictment delay must show "'actual and substantial prejudice,' endangering
[defendant's] right to a fair trial." Ibid. (citing State v. Alexander, 310 N.J.
Super. 348, 355 (App. Div. 1998)). We emphasized the burden is "actual
prejudice, not possible or presumed prejudice." Ibid. "Vague assertions of lost
witnesses, faded memories, or misplaced documents are insufficient to establish
A-3585-19T4
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a due process violation from pre-indictment delay." Ibid. (quoting United States
v. Beszborn, 21 F.3d 62, 67 (5th Cir. 1994)).
Here, defendant offered no concrete evidence that the delay was to gain a
tactical advantage over him and actually prejudiced his defense. The passage of
time did not preclude a new county prosecutor from reviewing the evidence
gathered in 1996 and 1997 and independently determining there was sufficient
evidence to charge defendant with murder. Thus, defendant failed to
demonstrate the State's delay in prosecution satisfied the first prong of
Townsend.
Nor was defendant's inability to remember the incident of twenty-three
years earlier sufficient to satisfy the prejudice prong under Townsend.
Defendant also never proffered the substance of the testimony from the
witnesses who were no longer available and failed to explain how such
testimony would have benefitted his case to establish a due process violation
from pre-indictment delay.
Defendant argues we should adopt the reasoning advanced by various
federal courts addressing violations of due process based on prosecutorial pre-
indictment delay. 3 The United States Supreme Court set forth its analysis for
3
Defendant acknowledges that the federal courts are divided on this issue.
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review of a motion to dismiss based on pre-indictment delay where a defendant
can demonstrate "a deliberate attempt [by the government] to gain an unfair
tactical advantage" or "reckless disregard of [the delay's] probable prejudicial
impact upon the defendant's ability to defend against the charges." United States
v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States
Currency, 461 U.S. 555, 563 (1983). Under a federal line of cases, a burden
shifting occurs once a defendant establishes prejudice. Under such
circumstances, the federal courts assess the legitimacy of the government's
reasons for delay and balance those reasons against the prejudice caused to a
defendant to determine whether a defendant has been denied due process. See
United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994); Howell v. Barker, 904
F.2d 889, 895 (4th Cir. 1990).
Prior to Townsend, our Court had "not previously addressed the standard
[that] should apply when evaluating a request to dismiss an indictment based on
unreasonable delay between the date of the crime and the date the charge is
presented to a grand jury." Townsend, 186 N.J. at 486. In Townsend, the Court
considered federal precedent in United States v. Lovasco, 431 U.S. 783 (1977),
and Gouveia, 467 U.S. at 192, to determine whether a delay in prosecution
violated fundamental fairness and due process. Id. at 487-88. After considering
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federal case law, the Court "appl[ied] the federal standard in determining
whether a due process violation resulted from excessive pre-indictment delay,"
and adopted the above cited two-part test for reviewing a motion to dismiss
based on unreasonable prosecutorial pre-indictment delay. Id. at 488-89.
The federal cases defendant relies on in pressing this court to deviate from
Townsend were decided prior to 2006. The Court could have adopted the
burden-shifting paradigm for review of motions to dismiss based on
unreasonable prosecutorial delay in pursuing an indictment when deciding
Townsend. However, the Court did not follow that approach. Our role as an
intermediate court is a limited one, and we are bound to follow precedent of the
Supreme Court of New Jersey. State v. Breitweiser, 373 N.J. Super. 271, 282-
83 (App. Div. 2004). Thus, we decline defendant's invitation to adopt an
analysis that varies from the standard articulated in Townsend.
Affirmed.
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