STATE OF NEW JERSEY VS. DAVID L. MORTIMER (19-08-0300, SALEM COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2858-19
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    DAVID L. MORTIMER,
    Defendant-Appellant.
    _______________________
    Submitted February 9, 2021 – Decided February 25, 2021
    Before Judges Haas and Natali.
    On appeal from the Superior Court of New Jersey, Law
    Division, Salem County, Indictment No. 19-08-0300.
    The McDonough Law Office, attorneys for appellant
    (Martin T. McDonough, of counsel and on the briefs).
    John T. Lenahan, Salem County Prosecutor, attorney
    for respondent (David M. Galemba, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    After the trial judge denied his motion to dismiss the indictment based
    upon his contention that the State violated his constitutional right to a speedy
    trial, defendant David L. Mortimer pled guilty to fourth-degree operating a
    motor vehicle while his license was suspended after multiple driving while
    intoxicated (DWI) convictions. N.J.S.A. 2C:40-26(b). The judge sentenced
    defendant to a mandatory term of 180 days in jail without parole and imposed
    appropriate fines and penalties.1
    On appeal, defendant raises the following contention:
    I.  THE TRIAL COURT ERRED AS A MATTER
    OF LAW IN DENYING DEFENDANT'S MOTION
    TO DISMISS THE INDICTMENT FOR DELAY
    BECAUSE THE TRIAL COURT FAILED TO APPLY
    THE    BALANCING    TEST    FOR    SUCH
    CIRCUMSTANCES SET FORTH BY THE UNITED
    STATES SUPREME COURT AND THE NEW
    JERSEY SUPREME COURT.
    Having considered this argument in light of the record and applicable law, we
    affirm.
    On March 4, 2009, defendant's driver's license was suspended for ten
    years following his fourth conviction for DWI under N.J.S.A. 39:4-50. During
    this period of suspension, a state trooper pulled defendant over while he was
    1
    The judge granted defendant "ROR bail" pending appeal from the denial of
    his motion to dismiss the indictment.
    A-2858-19
    2
    driving and issued him summonses for driving while suspended in violation of
    N.J.S.A. 39:3-40 and failing to exhibit a driver's license in violation of N.J.S.A.
    39:3-29.    On February 25, 2018, a municipal prosecutor filed a complaint
    charging defendant with fourth-degree operating a motor vehicle during a period
    of suspension for a second or subsequent DWI in violation of N.J.S.A. 2C:40-
    26(b). The case was then transferred to the Salem County Prosecutor's Office.
    On June 19, 2018, defendant applied for admission to the pre-trial
    intervention (PTI) program.      The Criminal Division Manager denied the
    application because defendant had previously been granted a conditional
    discharge on another matter. On June 29, 2018, defendant filed an appeal of this
    decision to the Law Division. The prosecutor opposed defendant's appeal in a
    July 6, 2018 letter. A judge denied defendant's application on September 14,
    2018.
    On August 14, 2019, the Salem County grand jury returned a one -count
    indictment charging defendant with fourth-degree operating a motor vehicle
    during a period of suspension for a second or subsequent DWI under N.J.S.A.
    2C:40-26(b). On September 12, 2019, defendant filed a motion to dismiss the
    indictment pursuant to Rule 3:25-3. In pertinent part, this Rule states that "[i]f
    there is an unreasonable delay in presenting the charge to a grand jury . . . , the
    A-2858-19
    3
    Assignment Judge, or the Assignment Judge's designee, may dismiss the matter
    sua sponte or on motion of the defendant." The trial judge heard oral argument
    on November 1, rendered an oral decision denying defendant's motion on
    November 15, and issued a written order and decision on November 18, 2019.
    By way of background, the Sixth Amendment to the United States
    Constitution and Article I of the New Jersey Constitution guarantee criminal
    defendants the right to a speedy trial. U.S. Const. amend. VI; N.J. Const. art. I,
    ¶¶ 1, 10. This right attaches at the time of the defendant’s arrest on a criminal
    charge. State v. Tsetsekas, 
    411 N.J. Super. 1
    , 8 (App. Div. 2009).
    In assessing a defendant's claim of a speedy trial violation, the court must
    balance the following factors: 1) the length of the delay; 2) the reasons for the
    delay; 3) whether and how defendant asserted his speedy trial right; and 4) the
    prejudice to defendant caused by the delay. Barker v. Wingo, 
    407 U.S. 514
    , 530
    (1972); State v. Cahill, 
    213 N.J. 253
    , 258 (2013) (holding that the Barker
    analysis is the standard for speedy trials in New Jersey). These factors are
    assessed and balanced in light of competing interests: on one side, the "societal
    right to have the accused tried and punished" and on the other, a defendant's
    right to be prosecuted "fairly and not oppressively." State v. Dunns, 
    266 N.J. Super. 349
    , 380 (App. Div. 1993) (quoting State v. Farmer, 
    48 N.J. 145
    , 175
    A-2858-19
    4
    (1966)). "[T]he factors are interrelated, and each must be considered in light of
    the relevant circumstances of each particular case." Tsetsekas, 
    411 N.J. Super. at
    10 (citing Barker, 
    407 U.S. at 533
    ).
    Under Barker, the delay’s length triggers the analysis, meaning no
    balancing is necessary unless the delay is presumptively prejudicial. Barker,
    
    411 N.J. Super. at 530
    . The United States Supreme Court has noted that courts
    generally find that a one-year delay is "presumptively prejudicial" and triggers
    a speedy trial analysis. See Doggett v. United States, 
    505 U.S. 647
    , 652 n.1
    (1992). The New Jersey Supreme Court has held that while a Barker analysis is
    appropriate if the delay exceeds one year, courts should be mindful that this is a
    case-by-case analysis, and the nature of the charge should be considered in
    conjunction with the length of the delay when evaluating the factors. Cahill,
    213 N.J. at 265. Additionally, our Supreme Court has expressly declined to
    establish a fixed amount of time in which a defendant must be tried or in which
    defendant’s speedy trial rights are presumptively violated. Id. at 269.
    When analyzing the second factor, the reason for the delay, courts should
    ask whether the government had justifications for the delay and whether the
    defendant contributed to the delay. Barker, 
    407 U.S. at 531, 534-35
    . More
    neutral circumstances like overcrowding of the courts should be attributed to the
    A-2858-19
    5
    government but should be weighed less heavily than a more deliberate delay.
    
    Ibid.
     "Delay caused or requested by the defendant is not considered to weigh in
    favor of finding a speedy trial violation." State v. Farrell, 
    320 N.J. Super. 425
    ,
    446 (App. Div. 1999).
    The third factor, whether the defendant asserted his speedy trial right, is
    given strong weight because while the defendant is not obligated to assert the
    right, "[t]he more serious the deprivation, the more likely a defendant is to
    complain." Barker, 
    407 U.S. at 531
    . "[F]ailure to assert the right will make it
    difficult for a defendant to prove that he was denied a speedy trial." 
    Id. at 532
    .
    Despite this negative inference, a speedy trial claim is not entirely waived if the
    defendant fails to raise it. State v. Szima, 
    70 N.J. 196
    , 200 (1976); see also
    Cahill, 213 N.J. at 266 (noting that a defendant is not obligated to raise his right
    because he is not obligated to bring himself to trial).
    Finally, when evaluating prejudice, the fourth factor, courts should
    consider three main interests: preventing oppressive pretrial incarceration,
    minimizing anxiety and concern of the accused, and limiting the possibility that
    the defense will be impaired. Barker, 
    407 U.S. at 532
    . Witness’ loss of memory
    or unavailability are the most serious prejudicial factors, but memory loss by its
    nature is difficult to establish and for that reason may not be reflected in the
    A-2858-19
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    record. 
    Ibid.
     New Jersey courts have additionally considered employment
    interruptions, public criticism, and financial difficulties that result from an
    excessive delay. Farrell, 
    320 N.J. Super. at 446
    .
    In the present case, the trial judge applied and balanced each of the four
    Barker factors. Starting with the first factor, the judge found that defendant's
    right to a speedy trial attached on February 25, 2018 when the municipal
    prosecutor filed a complaint charging defendant with violating N.J.S.A. 2C:40-
    26(b). Thus, almost eighteen months passed before the grand jury indicted
    defendant on this charge on August 14, 2019.
    In attempting to explain the reasons for the delay under factor two of the
    Barker test, the prosecutor pointed to the time it took to: (1) resolve defendant's
    PTI application; (2) determine whether defendant's prior convictions were
    covered by the Supreme Court's decision in State v. Cassidy, 
    235 N.J. 482
    (2018)2; and (3) obtain the records of defendant's convictions from other
    counties. However, the judge found that none of these excuses adequately
    2
    In Cassidy, the Court ruled that all blood alcohol content results reported by
    Alcotest machines calibrated by a specific state trooper between 2008 and 2016
    were not scientifically reliable and, therefore, were inadmissible as evidence in
    DWI prosecutions. Id. at 497-98. In the present case, the prosecutor determined
    that Cassidy did not apply to defendant because his fourth DWI offense, which
    led to his license suspension in March 2009, occurred in 2001.
    A-2858-19
    7
    explained the delay in obtaining the indictment because the State could have
    continued its investigation while it opposed defendant's PTI application and
    could have secured defendant's DWI records more expeditiously than it did.
    Therefore, the judge did not attribute any of the delay to defendant. At the same
    time, however, the judge did not find that the State acted deliberately or
    postponed proceeding before the grand jury for tactical reasons.
    Turning to the third Barker factor, the judge found that "defendant
    concede[d] . . . [he filed] no motion during the period between [his] arrest and
    indictment questioning or challenging the delay."
    Concluding her analysis, the judge found that the fourth Barker factor,
    whether defendant suffered any prejudice from the delay, was "a critical one."
    Defendant was not incarcerated at any time while the case was pending. He also
    acknowledged that his defense was not prejudiced by the delay. As the judge
    explained, "[n]o evidence has been provided to suggest that any witness is no
    longer available or that any documentary evidence has been lost due to the
    passage of time."     Defendant did not submit a certification or affidavit
    describing in specific detail any anxiety, loss of employment opportunities,
    public scorn, or financial difficulties caused by the delay. Nevertheless, the
    A-2858-19
    8
    judge found that "defendant undoubtedly experienced a level of anxiety, concern
    and frustration from the [eighteen months] of uncertainty that the delay caused."
    After evaluating and balancing each of the four Barker factors, the judge
    concluded that even though she found the eighteen-month delay "to be both
    unacceptable and unexplained[,]" defendant's motion to dismiss the indictment
    should be denied. In so ruling, the judge found that the complete absence of any
    "tangible evidence of prejudice to [defendant's] ability to defend this case" was
    entitled to the most weight in the balancing test and required the denial of
    defendant's motion. This appeal followed.
    On appeal, defendant argues that the judge gave too much weight to the
    fourth Barker factor in denying his motion to dismiss the indictment. We
    disagree.
    The decision whether to dismiss an indictment lies within the discretion
    of the trial judge 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 judge's decision should not be disturbed on appeal unless the judge's
    discretion was "clearly abused." State v. Hogan, 
    144 N.J. 216
    , 229 (1996). "A
    trial [judge's] decision will constitute an abuse of discretion where 'the decision
    [was] made without a rational explanation, inexplicably departed from
    A-2858-19
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    established polices, or rested on an impermissible basis.'" State v. Salter, 
    425 N.J. Super. 504
    , 514 (App. Div. 2012) (second alteration in original) (quoting
    State v. Triestman, 
    416 N.J. Super. 195
    , 202 (App. Div. 2010)). In short, we
    will not overturn a trial judge's decision whether a defendant was deprived of
    due process on speedy trial grounds unless the judge's ruling was "clearly
    erroneous." State v. Merlino, 
    153 N.J. Super. 12
    , 17 (App. Div. 1977).
    Applying these principles, we discern no basis for disturbing the trial
    judge's comprehensive decision to deny defendant's motion to dismiss the
    indictment, and affirm that ruling substantially for the reasons set forth therein.
    We add the following brief comments.
    Contrary to defendant's contention, the judge properly considered each of
    the four Barker factors. While she gave the greatest weight to the lack of
    prejudice suffered by defendant due to the State's delay in obtaining the
    indictment, she fully considered the other three interrelated factors "in light of
    the relevant circumstances" of the present case. Tsetsekas, 
    411 N.J. Super. at 10
    . The judge also explained her rationale for weighing the absence of prejudice
    more heavily than the length of and reasons for the delay in her analysis. Simply
    stated, defendant suffered no actual prejudice whatsoever from the delay. He
    was never incarcerated during the pendency of the charge against him and there
    A-2858-19
    10
    is no suggestion that his defense was impaired by the delay. While the defendant
    may have experienced a "level of anxiety, concern and frustration" during the
    months between the filing of the criminal complaint and the indictment, he
    provided no specific details concerning this claim.
    In sum, the judge carefully considered the conduct of both the State and
    defendant. The judge 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 all four Barker factors. As in
    Merlino,
    the judge . . . undertook the difficult task of balancing
    all the relevant factors relating to the respective
    interests of the State and the defendant[,] applied [her]
    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 denial of defendant's motion to dismiss the
    indictment was neither clearly erroneous nor an abuse of discretion.
    Affirmed.
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    11