State v. Bersane ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. No. 34,686
5 JOSEPH BERSANE,
6
7 Defendant-Appellant
8 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
9 Kea W. Riggs, District Judge
10 Hector H. Balderas, Attorney General
11 Santa Fe, NM
12 for Appellee
13 Jorge A. Alvarado, Chief Public Defender
14 J.K. Theodosia Johnson, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 HANISEE, Judge.
19 {1} Defendant appeals from the district court’s judgment and sentence, convicting
20 him following a bench trial on one count of trafficking controlled substances
1 (possession with intent to distribute), contrary to NMSA 1978, Section 30-31-20
2 (2006). This Court issued a calendar notice proposing summary affirmance. Defendant
3 filed a memorandum in opposition to this Court’s notice of proposed disposition,
4 which we have duly considered. Unpersuaded, we affirm.
5 {2} Defendant raised two issues on appeal: (1) that the district court erred in not
6 requiring disclosure of the confidential informant; and (2) that the district court erred
7 in denying his motion to dismiss for violation of his speedy trial rights. [DS 5] In our
8 calendar notice, we proposed to hold that the district court did not abuse its discretion
9 in not requiring disclosure of the confidential informant’s identity. [CN 4, 6] We then
10 undertook an examination of the four speedy trial factors set forth in Barker v. Wingo,
11 407 U.S. 514 (1972). [See generally CN 7-12] Ultimately, we proposed to hold that
12 the length of delay in this case weighs at most moderately in Defendant’s favor, and
13 the reasons for delay and the assertion of speedy trial rights weigh slightly in
14 Defendant’s favor. [CN 12-13] We went on to suggest that under these
15 circumstances—where there has been no demonstration of actual prejudice by
16 Defendant—we were not convinced that Defendant’s constitutional right to speedy
17 trial was violated. [CN 12-13] See State v. Garza, 2009-NMSC-038, ¶ 40, 146 N.M.
18 499, 212 P.3d 387 (holding that because the defendant failed to show prejudice, and
19 the other factors did not weigh heavily in the defendant’s favor, the Court could not
2
1 conclude that the defendant’s right to a speedy trial was violated).
2 {3} Defendant’s memorandum in opposition does not point to any specific errors
3 in fact or in law in our calendar notice. See Hennessy v. Duryea, 1998-NMCA-036,
4 ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary
5 calendar cases, the burden is on the party opposing the proposed disposition to clearly
6 point out errors in fact or law.”). In fact, Defendant makes no mention whatsoever of
7 this Court’s proposed disposition in his memorandum in opposition; instead, he
8 simply recites the facts that had already been placed before this Court in his docketing
9 statement and presents us with a watered-down version of the same arguments he
10 made before the district court and in his docketing statement. [See generally MIO 3-8]
11 {4} We conclude that Defendant has not met his burden on appeal. Accordingly, for
12 the reasons stated above, as well as those provided in our calendar notice, we affirm.
13 {5} IT IS SO ORDERED.
14 _____________________________
15 J. MILES HANISEE, Judge
16 WE CONCUR:
17 __________________________________
18 LINDA M. VANZI, Judge
19 __________________________________
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1 M. MONICA ZAMORA, Judge
4