STATE OF NEW JERSEY v. BASILIS STEPHANATOS (11-09-0810, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3443-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BASILIS STEPHANATOS,
Defendant-Appellant.
_______________________
Submitted November 15, 2021 – Decided February 23, 2022
Before Judges Sabatino, Rothstadt, and Natali.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 11-09-
0810.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Basilis Stephanatos appeals from his 2019 conviction by a
jury of having committed the fourth-degree offense of causing or risking
widespread injury or damage, N.J.S.A. 2C:17-2(c), and from his sentence to
three-years non-custodial probation. The conviction stems from the events of
June 28, 2011, when, after Sheriff's officers attempted to execute a writ of
possession, defendant locked himself inside his home with weapons for several
hours before surrendering possession.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL JUDGE ERRED WHERE HE FOUND
AS A MATTER OF LAW THAT DEFENDANT WAS
A "PERSON" TO WHOM N.J.S.A. 2C:17-2
APPLIED IN ITS DEFINITION OF THE NUMBER
OF "PEOPLE" TO BE INJURED IN ORDER TO
CAUSE "WIDESPREAD INJURY OR DAMAGE."
POINT II
THE TRIAL JUDGE ERRED WHERE HE
REVOKED DEFENDANT'S RIGHT OF SELF-
REPRESENTATION.
POINT III
THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S
SPEEDY TRIAL MOTION WAS CLEARLY
ERRONEOUS.
2 A-3443-18
In a Pro Se Supplemental Brief he also argues the following points that
we have renumbered for clarity:
POINT [IV]
THE TRIAL COURT COMMITTED A HARMFUL
ERROR BY RULING THAT THE VOID AB INITIO
EX-PARTE WRIT WAS NOT ILLEGAL AND
PREVENTED DEFENDANT FROM TESTIFYING
ABOUT THE VOID WRIT. (RAISED BELOW).
1. DISCOVERY OF THE
EXTRAORDINARY EVIDENCE THAT THE EX-
PARTE WRIT ENTERED ON MAY 13, 2011 . . .
WAS VOID AB INITIO.
2. THE TRIAL COURT DID NOT MAKE
SUFFICIENT FINDINGS IN SUPPORT OF ITS
DECISION TO DENY THE OMNIBUS MOTIONS
IN THEIR ENTIRETY.
POINT [V]
THE TRIAL COURT COMMITTED A HARMFUL
ERROR BECAUSE IT PREVENTED DEFENDANT
TO TESTIFY AT TRIAL ABOUT HIS STATE OF
MIND, THUS USURPING THE JURY'S ROLE IN
DECIDING THE ULTIMATE ISSUE OF THE
RECKLESSNESS STATE OF MIND OF THE
DEFENDANT THAT WAS ONE OF THE
REQUIRED ELEMENTS UNDER N.J.S.A. 2C:17-
2C. (RAISED BELOW).
1. THE TRIAL COURT ABUSED ITS
DISCRETION BY FAILING TO CONSIDER
LARGER RELEVANCY CONCEPTS WHEN
3 A-3443-18
EVALUATING THE PROFFERED TESTIMONY OF
[DEFENDANT].
2. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN FAILING TO COMPARE
"RECKLESS" WITH OTHER MENTAL STATES
AFTER THE JURY REQUESTED
CLARIFICATION.
3. VIOLATION OF THE PRESENTMENT
CLAUSE, N.J. CONST. ART. I, PAR 8.
POINT [VI]
THE TRIAL COURT COMMITTED A HARMFUL
ERROR BECAUSE IT DENIED THE DEFENSES OF
MISTAKE OF LAW OR FACT. (RAISED BELOW).
1. THE TRIAL COURT ERRED BY
PREVENTING THE DEFENDANT TO
COLLATERALLY ATTACK THE JUDGMENT OF
FORECLOSURE AND ASSOCIATED ORDERS.
2. THIS CASE FALLS WITHIN AN
EXCEPTION TO THE COLLATERAL BAR RULE
AND THE TRIAL COURT HAS ERRED BY
FAILING TO CONSIDER THE EXCEPTIONS.
POINT [VII]
THE COURT ERRED BY STATING THAT NO
WARRANT FOR REMOVAL FROM A
RESIDENTIAL PROPERTY WAS REQUIRED
UNDER THE TAX SALE LAW. AN LLC CANNOT
TERMINATE A RESIDENTIAL OCCUPANCY
UNDER NEW JERSEY'S TAX SALE LAW.
(RAISED BELOW).
4 A-3443-18
POINT [VIII]
UNDER THE DOCTRINE OF CUMULATIVE
ERRORS, A NEW GRAND JURY SHOULD HAVE
BEEN BE [SIC] CONVENED PURSUANT TO
STATE V. ORECCHIO, 16 N.J. 125, 129 (1954).
(RAISED BELOW).
1. THE LAW ON PERJURY BEFORE A
GRAND JURY.
POINT [IX]
THE TRIAL COURT ABUSED ITS DISCRETION
DURING SENTENCING BY PRESENTING FACTS
NOT PRESENTED AT TRIAL; BY WRONGFULLY
STATING AND WITHOUT ANY FACTUAL BASIS
THAT [DEFENDANT] HAD A DISDAIN FOR
POLICE OFFICERS; THAT DEFENDANT HAD
MADE "THREATS" TO PEOPLE; THIS WAS
CONTRARY TO THE PRE-TRIAL RULINGS BY
THE TRIAL COURT THAT NO THREATS WERE
EVER MADE. (RAISED BELOW).
1. THE TRIAL COURT MADE
ERRONEOUS STATEMENTS ABOUT THE
PAYMENT OF TAXES THAT ARE NOT IN THE
RECORD AND THEY ARE NOT TRUTHFUL OR
ARE NOT BASED ON COMPETENT, CREDIBLE
EVIDENCE.
2. THE TRIAL COURT FAILED TO
CREDIT [DEFENDANT] FOR THE 68 DAYS
SPENT IN THE BERGEN COUNTY JAIL.
[ANOTHER] JUDGE . . . ALREADY HAS RULED
THAT JAILING WAS IN VIOLATION OF
[DEFENDANT'S] FIRST AMENDMENT RIGHTS.
5 A-3443-18
3. THE COURT FAILED TO CONSIDER
MITIGATING FACTOR 1 AND MITIGATING
FACTOR 2 DURING SENTENCING. STATE V.
DALZIEL, 182 N.J. 494, 502 (2005) (HOLDING
THAT TRIAL JUDGES DO NOT HAVE
"DISCRETION TO REJECT A MITIGATING
FACTOR ALTOGETHER" DESPITE "EVIDENCE
IN THE RECORD").
4. DOUBLE COUNTING AND DOUBLE
JEOPARDY PROHIBITED DURING SENTENCING.
AN ELEMENT OF THE OFFENSE MAY NOT BE
CITED AS AN AGGRAVATING FACTOR TO
INCREASE PUNISHMENT. NO COMPETENT
AND RELEVANT EVIDENCE WAS USED TO
ANALYZE THE AGGRAVATING FACTORS.
5. MULTIPLE PUNISHMENTS FOR THE
SAME OFFENSE ARE STRICTLY PROHIBITED.
6. IT IS ALSO APPARENT THAT THE
TRIAL COURT MISTAKENLY FOUND
AGGRAVATING FACTORS, 3, 8 AND 9 BY
RELYING "HEAVILY ON THE FACTS OF THE
VERY OFFENSES THAT DEFENDANT WAS
ACQUITTED ON[.]" STATE V. ANTHONY,
APPELLATE DIVISION (JANUARY 19, 2016).
POINT [X]
THE COURT COMMITTED HARMFUL ERROR BY
FINDING THAT THE DEFENDANT HAD NO
POSSESSORY RIGHTS AND REASONABLE
EXPECTATION OF PRIVACY IN HIS FULLY-
OWNED PROPERTY. (RAISED BELOW).
6 A-3443-18
POINT [XI]
THE APPLICATION OF THE VAGUE AND
OVERBROAD STATUTE N.J.S.A. 2C:17-2C TO
THE PRESENT CASE REPRESENTS ARBITRARY
ENFORCEMENT, VIOLATING THE DUE
PROCESS CLAUSE BECAUSE THE STATE
LEGISLATURE DID NOT INCLUDE IN THAT
STATUTE REFUSAL TO VACATE A HOME AS A
PUNISHABLE FELONY OFFENSE. (RAISED
BELOW).
We are persuaded that the almost eight-year delay in bringing
defendant's matter to trial violated his right to a speedy trial. For that reason,
we reverse the denial of his 2018 motion to dismiss the indictment on that
basis and vacate his conviction.
I.
The facts leading to defendant's conviction are summarized as follows.
By 2004 defendant had fallen into arrears in the payment of property taxes for
his home in Wayne Township. In 2005, the township sold the associated tax
sale certificate to a third party, which by 2008 began the process of foreclosing
on the property. In the ensuing litigation, the then-Chancery judge stayed the
proceedings to allow defendant to file an action against the township
challenging the taxes owed. That action was ultimately dismissed with
prejudice in 2010 and the Chancery action resumed. In April 2010, the
7 A-3443-18
Chancery judge struck defendant's responsive pleading and directed that the
matter proceed as uncontested. The matter proceeded to judgment after the
Chancery judge gave defendant an additional opportunity to redeem, which he
failed to do.
A writ of possession was issued in May 2011, which the Passaic County
Sheriff scheduled for execution on June 28, 2011. The Sheriff's office knew
that defendant had vigorously defended against the foreclosure and that he
possessed several weapons. With that knowledge, four officers were sent to
defendant's home to execute the writ.
In response to the Sheriff officers' attempt to execute the writ, defendant
approached them from inside his home with a rifle in his hand. In accordance
with their office's protocols, the officers safely retreated from the home and
retrieved their weapons from their cars where they remained. They then called
for assistance from hostage negotiators, a special weapons and tactics (SWAT)
team, and a bomb squad. The requested back-up responded within a half hour.
In the meantime, while inside the house, defendant called the Chancery
judge, who took the call on the record. Defendant asked that the judge "stay
the eviction." In response, the judge asked that he leave the house and speak
to the officers. Defendant was displeased with her response and told her that
8 A-3443-18
"the only way he was coming out of the house was dead" and that "there was
going to be bloodshed." Defendant made these statements "[a] number of
times."
According to defendant, he "panicked" and told the judge "there's going
to be bloodshed today" because he "thought [he was] going to be shot." He
also stated, "You've got to be kidding me, as I said, only dead I will be coming
out of this home," and later, "[T]his is not going to happen, okay? Only dead
will I come out of this home." He explained that he made these statements
because he "was afraid [that was] going to happen" since armed officers were
outside. Defendant said he was not holding the rifle to frighten anyone, never
pointed or displayed any weapon at anyone, or threatened anyone and did not
intend to cause anyone harm.
After defendant spoke to the judge, a Sheriff's officer made telephone
contact with defendant. The officer stayed on the phone with him for several
hours, urging defendant to leave the house. During the call defendant was
very emotional and angry. He expressed concern that he was going to get hurt,
despite the officer's assurance that if he came out no harm would come to him.
Eventually, defendant left the house and cooperated with the officers. He was
placed under arrest and his weapons were removed from the house.
9 A-3443-18
In September 2011, defendant was charged in Passaic County with
possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-
4(a) (count one); two counts of aggravated assault of a law enforcement officer
by knowingly pointing a firearm, contrary to N.J.S.A. 2C:12-1(b)(9) (counts
two and three); recklessly creating a risk of widespread injury or damage,
contrary to N.J.S.A. 2C:17-2(c) (count four); and hindering apprehension,
contrary to N.J.S.A. 2C:29-3(b)(2) (count five).
Shortly thereafter, defendant was briefly represented by one attorney but
soon replaced him with another privately retained counsel. From 2011 through
2017, defendant's criminal case was assigned to a series of seven different
judges. During that period, defendant filed numerous motions seeking various
relief. Many of his pro se submissions attacked the underlying judgment in the
civil actions, individual members of the Sheriff's department, and judges
involved in his case. At some point prior to 2016, a judge directed that his
continued filing of pro se submissions would be considered a violation of the
conditions of his bail.
Among those motions that defense counsel filed, was a 2013 motion for
a change in venue. In addition, defense counsel made numerous successful
requests for adjournments, many based on counsel's health issues and others
10 A-3443-18
due to schedule conflicts. And, while the venue motion was still pending, in
October 2015, defendant submitted a pro se "omnibus motion," seeking
dismissal of the indictment and other relief on various grounds, including that
his right to a speedy trial had been violated, which he supported with
complaints about delays caused by his attorney and the court, not the State.
Four years after the change in venue motion was filed, one of the judges
granted it on December 26, 2017, without deciding the still pending "omnibus
motion," and transferred the matter to Bergen County. After the transfer,
defendant refiled the "omnibus motion," and several other motions that were
heard and decided by the trial judge in Bergen County before defendant's trial
began in January 2019. On February 4, 2019, the jury found defendant guilty
of the one count in the indictment but not guilty of the remaining counts. The
trial judge later sentenced defendant to three years non-custodial probation and
imposed a $7,500 fine. This appeal followed.
II.
Because the time between defendant's arrest and his trial was inordinate,
we turn our attention first to defendant's arguments about the violation of his
right to a speedy trial. Defendant argues in Point III of his brief that the trial
judge, in denying his motion for dismissal on speedy trial grounds, improperly
11 A-3443-18
relied upon the fact that defense counsel asked for many adjournments.
According to defendant, the attorney's adjournment requests accounted for less
than half of the adjournments in the case, and the State and the judges
previously assigned to the case were responsible for the rest. Defendant
further argues that he suffered "significant harm," because: 1) he "los[t]" his
chosen attorney, who he argues could have represented him at trial if it had
happened earlier; 2) his financial resources were "severely stretched" by legal
fees; and 3) he lost income and experienced "anxiety and humiliation" due to
the lingering charges against him.
A.
According to defendant, he first addressed the issue of the delay of his
trial in April 2014, when he wrote to the court "urging [it] to promptly proceed
with the case." 1 He expressed concern that it had taken "more than a year to
rule" on his still undecided February 20, 2013 motion to change venue, and
stated that he "suffered significant economic and non-economic damages . . .
every day this case [was] delayed." The letter did not prompt any action by
the court.
1
The letter in which this was said is not included in the record, but is
discussed by defendant in his later October 12, 2015 letter to the court.
12 A-3443-18
As previously mentioned, on October 12, 2015, four years after the
indictment was issued, and while the 2013 venue motion was still pending,
defendant filed a forty-seven-page letter as a pro se "omnibus motion"
complaining about his attorney causing delays in his case, raising questions
about the veracity of the attorney's health issues, and asking that the
indictment be dismissed on several grounds, including that his speedy trial
rights had been violated. In his letter, defendant complained that there had
been "no end to the lengthy and inexcusable case delays" caused by the court
and by his counsel. He said his lawyer had been "attending other clients in
federal court," and that he had made "numerous inquiries and complaints about
these unacceptable delays" to the attorney. He concluded by stating, "since
there is no end to the lengthy and inexcusable case delays caused by this court
and by [my attorney] (in violation of my speedy trial rights), my family and I
have decided to remove [my attorney] from representing me before this court."
He also suggested that his venue motion, which had been pending for two
years and eight months, was "simple" and should have been decided. None of
the assigned judges entered any orders in response to the omnibus motion and,
despite defendant's assertions, his attorney continued to represent him. 2
2
On March 18, 2016, during oral argument on the State's motion to revoke
13 A-3443-18
As noted earlier, defendant's motion for change of venue was not granted
until December 26, 2017, four years and ten months after it was filed. The
order stated that the reason for the transfer to another vicinage was that since a
retired, former judge—presumably the vicinage's Chancery judge—was going
to be a witness in the case, there was a need to "ensure the absence of any
appearance of impropriety." No other aspect of defendant's omnibus motion
was addressed by the judge issuing the order.
As also already noted, after the change in venue, in March 2018
defendant refiled his omnibus motion, including his speedy trial claim. The
trial judge in Bergen County denied defendant's omnibus motion on May 24,
2018. 3 He also set a peremptory date of August 6, 2018, for the trial to begin.
__________________________
bail based on defendant submitting pro se papers to the court in violation of a
bail condition, one of the Passaic County judges stated that although he did not
address defendant's motion for change of venue with an order, he had
"informally advised [c]ounsel" that he "wasn't going to be granting that" and
that defendant's filing of motions other than through counsel that had been
drafted by defendant, who "tr[ied] to have them appear to be submissions of
[c]ounsel," violated the judge's directive from "two years ago" that he would
not consider pro se submissions, and that defendant's continued attempts to
represent himself and to obtain a change of venue were "only guaranteed to
cause this litigation to last much longer." The result of the motion was that
defendant's bail was revoked and he was referred for a psychiatric evaluation.
3
At a conference held by the trial judge in February 2018, defense counsel
reviewed in detail his serious health issues that prevented him from continuing
14 A-3443-18
In denying the portion of the omnibus motion concerning defendant's
speedy trial claim, the judge "acknowledge[d]" that "this matter [had] been in
the system for too long." He addressed the four Barker 4
factors for
determining speedy trial issues in some detail. For the first factor, the judge
found that there was "no doubt that the length of the delay [was] substantial,"
stating that it was "almost unconscionable[] that a matter in the State [c]ourt
system [was] now in its seventh year or eighth year before being resolved."
The court found that factor one "weigh[ed] heavily in favor of the defendant."
Concerning the second factor, the reasons for the delay, the judge stated
that he had accessed the judiciary's Promis/Gavel System to view a listing of
all actions taken and proceedings scheduled in this matter. The judge
determined that between 2012 and 2018, there had been "over 100 scheduled
proceedings, including status conferences, pre-trial conferences, motions, and
other matters," and that "at least 80 times" the matter was adjourned at defense
counsel's request. While the judge acknowledged that the attorney "had health
issues" and was "very busy" with "trials in many venues," the judge also stated
__________________________
to represent defendant. Ultimately, defendant was initially allowed to
represent himself with standby counsel and it was defendant appearing pro se
with that counsel who argued before the trial judge on May 24, 2018.
4
Barker v. Wingo, 407 U.S. 514, 515 (1972).
15 A-3443-18
that defendant "could have had other [c]ounsel" and instead "chose to keep and
retain" his attorney. Meanwhile, the judge found that "the State never
requested an adjournment" and was "ready to proceed to trial, certainly within
six months to a year after" the indictment was issued. The judge concluded
that "the delay, over seven years, was primarily, if not solely, chargeable to the
defendant." This factor weighed "if not more" than, "at least equally" to the
length of the delay.
As to the third factor, the judge found that defendant had asserted his
right to a speedy trial and filed a motion concerning that right. For factor four,
the judge found that the seven-year delay was "prejudicial" to defendant and
noted that while defendant had not been incarcerated during that time period,
his "life [had] been on hold for the past seven years." However, the judge
found again that the fact that defendant was not tried more quickly "was due in
large part to hi[m] or his . . . attorney." The judge concluded that after
balancing the four factors, defendant was not "constitutionally denied a speedy
trial."
At the hearing on defendant's motion for reconsideration on June 4,
2018, the judge again said that "seven years is an inordinate delay." Moreover,
the judge admitted that he had made a mistake as to the number and source of
16 A-3443-18
the adjournments in the case. The judge stated there were actually seventy-
five postponements of the case, and that thirty-one came from defense counsel
and "one or two, if that many," from the State. The judge found that the
remainder of the adjournments "were either [c]ourt calendars or for reasons
unknown." Based on this corrected record, the judge again found that "most of
the delays were caused by, not the defendant personally, but through his
counsel." The judge did not change his ruling on the speedy trial motion.
In a June 8, 2018 pro se filing, defendant continued to argue that his
speedy trial right had been violated. Throughout the remainder of the pretrial
period, the trial judge maintained that trial would commence on August 6,
2018. However, on that date, defendant's new, appointed attorney 5 was
unavailable, and the trial was postponed until January 22, 2019, when it in fact
commenced.
B.
It is well-settled that "[t]he right to a speedy trial is guaranteed by the
Sixth Amendment to the United States Constitution and imposed on the states
by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas,
5
At a July 3, 2018 hearing, the trial judge revoked his earlier order allowing
defendant to proceed pro se.
17 A-3443-18
411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386
U.S. 213, 222-23 (1967)). "The constitutional right . . . attaches upon
defendant's arrest." Ibid. (alteration in the original) (quoting State v. Fulford,
349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to
promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State
must avoid "excessive delay in completing a prosecution[,]" or risk violating
"defendant's constitutional right to speedy trial." Ibid. (citation omitted).
The right to a speedy trial is of a somewhat different character than
others, because "deprivation of the right to speedy trial does not per se
prejudice the accused's ability to defend himself." Barker, 407 U.S. at 521.
Indeed, courts have recognized that "[d]elay is not an uncommon defense
tactic." Ibid.The right to a speedy trial must be addressed with a careful analysis of
the circumstances. Id. at 522. Ultimately, the trial court must weigh society's
right to have the accused tried and punished against a defendant's right to be
prosecuted fairly and without oppression. Tsetsekas, 411 N.J. Super. at 10.
"The only remedy" for a violation of a defendant's right to a speedy trial
"is dismissal of the charge." State v. Cahill, 213 N.J. 253, 276 (2013). On
appeal, "we reverse only if the court's determination is clearly erroneous."
18 A-3443-18
Tsetsekas, 411 N.J. Super. at 10; see also State v. Merlino, 153 N.J. Super. 12,
17 (App. Div. 1977).
The four-part test to determine if a defendant's speedy-trial right has
been violated was announced in Barker, 407 U.S. at 530-33, and adopted by
our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976). 6 The test
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.'" Tsetsekas, 411 N.J. Super. at 8 (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 (citing Barker, 407 U.S. at 533). Courts are required to
analyze each interrelated factor "in light of the relevant circumstances of each
particular case." Ibid.The Barker factors to be applied by a court are "related," and "must be
considered together with such other circumstances as may be relevant."
Barker, 407 U.S. at 533. None of them standing alone is "either a necessary or
6
We note that effective 2017, although not impacting defendant's claims,
speedy trial claims are now subject to the considerations set forth in the
Criminal Justice Reform Act, N.J.S.A. 2A:162-22(a)(2)(a).
19 A-3443-18
sufficient condition to the finding of a deprivation of the right of speedy trial,"
and a court must "engage in a difficult and sensitive balancing process." Ibid.Regarding the first factor, the Barker Court characterized the length of a
delay between arrest and trial as a "triggering mechanism," stating that "[u]ntil
there is some delay which is presumptively prejudicial," there is no need for a
court to address the other three factors. Ibid. Here, it cannot be disputed that,
as the trial judge found, the delay was unreasonable, especially in light of the
simplicity of charges that arose from the June 28, 2011 near tragic events. See
id. at 530-31; Cahill, 213 N.J. at 265-66 (recognizing that "longer delays can
be tolerated for serious offenses or complex prosecutions").
The trial judge therefore correctly considered the remaining factors. In
doing so, the judge was required to recognize "[a]s a matter of logic and
decency, given that the four factors of Barker call for a balancing of
considerations, when the delay in concluding a trial is excessively long by any
measure, as here, the burden upon defendant to satisfy the other factors is
correspondingly diminished." State v. Farrell, 320 N.J. Super. 425, 453 (App.
Div. 1999).
Turning to the second factor, the reason for the delay, "different weights
should be assigned to different reasons." Barker, 407 U.S. at 531. "A
20 A-3443-18
deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government," while "a valid reason, such as a
missing witness, should serve to justify appropriate delay." Ibid. "A more
neutral reason such as negligence or overcrowded courts should be weighted
less heavily" against the State. Ibid. However, such a reason may still support
a finding of a speedy trial violation, "because it is the government's ultimate
responsibility to prosecute cases in a timely fashion." Cahill, 213 N.J. at 266.
In Barker, the Court found that seven months of delay by the prosecution
due to the illness of a key witness were justifiable. Id. at 534. However, four
years of continuances so that a co-defendant could be tried separately and then
utilized as a witness were improper, because the prosecution repeatedly failed
to try the co-defendant "under circumstances that comported with due
process," lengthening the delay. Ibid.
In Tsetsekas, 411 N.J. Super. at 12, we found that the prosecution's
requests for several adjournments due to scheduling issues with witnesses and
problems providing discovery "were not a deliberate attempt to hamper the
defense," but nonetheless supported a conclusion that the defendant's speedy
trial right was violated. We noted that "[a]djournments should generally be
21 A-3443-18
granted to either party for legitimate reasons," but found that "every rule has
its limits." Ibid. (emphasis added).
Delays caused or requested by a defendant will weigh against finding a
speedy trial violation. State v. Long, 119 N.J. 439, 471 (1990). In Long, the
Court held that if the State was "entirely or in large part responsible" for the
delay of 971 days between the defendant's arrest and his trial for murder, "such
a time delay would violate [the] defendant's right to a speedy trial." Id. at 469.
However, the defendant had "filed numerous pretrial motions that accounted
for most of" that time, particularly a challenge to the jury-selection process
that led to six months delay of the trial. Id. at 469-71. Because there was "no
indication that the prosecution intentionally delayed the proceedings to gain an
unfair, tactical advantage," the Court found no speedy trial violation. Id. at
471.
The United States Supreme Court has held that because an attorney acts
as a defendant's agent, defense counsel's requests for adjournments can be
generally attributed to defendant. Vermont v. Brillon, 556 U.S. 81, 90-91
(2009). In Brillon, the Court held that "counsel's failure 'to move the case
forward' does not warrant attribution of delay to the State," because "the
individual counsel here acted only on behalf of [the defendant], not the State."
22 A-3443-18
Id. at 92. The Court stated "[b]ecause 'the attorney is the [defendant's] agent
when acting, or failing to act, in furtherance of the litigation,' delay caused by
the defendant's counsel is also charged against the defendant." Id. at 90-91(second alteration in original) (quoting Coleman v. Thompson, 501 U.S. 722,
753 (1991)).
However, in Brillon, the Court made clear that although the defendant's
attorneys made requests for adjournments, the primary cause for the delay in
that case was the defendant's belligerent behavior and conflict with each of his
consecutively assigned counsel. He repeatedly fired and even threatened his
appointed counsel, which caused delay because replacement counsel had to be
appointed several times. The Court summarized the situation as follows:
[Defendant's] strident, aggressive behavior with regard
to [his first attorney] whom he threatened, further
impeded prompt trial and likely made it more difficult
for the Defender General's office to find replacement
counsel. Even after the trial court's warning regarding
delay, [defendant] sought dismissal of yet another
attorney . . . . Just as a State's "deliberate attempt to
delay the trial in order to hamper the defense should
be weighted heavily against the [State]," Barker, 407
U.S.[] at 531, . . . so too should a defendant's
deliberate attempt to disrupt proceedings be weighted
heavily against the defendant. Absent [defendant's]
deliberate efforts to force the withdrawal of [two of
his attorneys], no speedy-trial issue would have arisen.
The effect of these earlier events should have been
factored into the court's analysis of subsequent delay.
23 A-3443-18
[Brillon, 556 U.S. at 93-94 (fifth alteration in
original).]
Based on the defendant's actions that prompted his various attorneys to
seek delays, the Court reversed "[t]he Vermont Supreme Court[, which it
found] erred in attributing to the State delays caused by 'the failure of several
assigned counsel . . . to move his case forward, . . . and in failing adequately to
take into account the role of [defendant's] disruptive behavior in the overall
balance." Id. at 91-92 (citation omitted). Moreover, the primary danger that
the Court sought to address in Brillon in the particular context of a speedy trial
claim, was by attributing a public defender's delays to the State would provide
a public defender with a perverse incentive to drag his or her feet and request
frivolous continuances in the hopes of getting charges dismissed on speedy
trial grounds. Neither the facts nor the policy implications that were key to the
Court's decision in Brillon are present in the current case.
In contrast, before Brillon was decided, where delays were attributable
to the court, we found in Farrell, 320 N.J. Super. at 449-50, that two
postponement requests from defense counsel due to scheduling issues
involving counsel's other cases were not "fairly chargeable to [the] defendant."
Id. at 449. There, we stated that delays caused by the court itself may also be
24 A-3443-18
weighed in the analysis. Id. at 450-51. "As a general rule in applying the
evaluative features of the four-part test of Barker in fundamental fairness
terms, 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." Id. at 451 (quoting Barker, 407 U.S. at 531). "When there is no
reasonable explanation or justification for the excessive delay, speedy trial
principles have been violated." Id. at 453.
For example, in Farrell, the municipal court adjourned the case for
extended periods multiple times even after there had already been significant
delays. Ibid. Though the matter involved simple charges of driving while
intoxicated and failure to maintain a single lane, the court took 174 days to
begin addressing the defendant's motions and did not begin the testimonial
phase of the matter until it was 312 days old. Id. at 451. The court took nearly
a year to complete the testimonial phase due largely to its own adjournments.
Ibid. For example, when the matter was 635 days old, the court adjourned it
"because of other, undefined 'administrative matters' that diverted [its]
attention." Ibid. We concluded that the defendant's speedy trial right was
violated because the delays were "plainly excessive" and largely due to "the
25 A-3443-18
municipal court's patent failure to prepare itself to try the matter expeditiously
and shepherd it to resolution efficiently." Id. at 452-53.
As to the third Barker factor, a defendant's assertion of the speedy trial
right "is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right." Barker, 407 U.S. at 532-33. For
example, if the record shows that a defendant not only failed to object to
continuances requested by the government but "hoped to take advantage of the
delay," denial of a speedy trial motion is appropriate. Id. at 535-36. However,
there is no bright-line rule that a defendant who fails to demand a speedy trial
has waived the right. Id. at 528-29.
The fourth Barker factor, prejudice to the defendant, should be assessed
in the light of the interests the speedy trial right was designed to protect.
Barker, 407 U.S. at 532. These include "prevention of oppressive
incarceration, minimization of anxiety attributable to unresolved charges, and
limitation of the possibility of impairment of the defense." Cahill, 213 N.J. at
266. The last of these is considered the most serious, as it goes "to the
question of fundamental fairness." Szima, 70 N.J. at 201. However,
"significant prejudice" may also be found if a delay causes a "loss of
employment or other opportunities, humiliation, the anxiety in awaiting
26 A-3443-18
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.'" Tsetsekas, 411 N.J. Super. at 13 (quoting Farrell, 320 N.J.
Super. at 452).
Applying those factors here, as noted, the trial judge found the delay was
inordinate, defendant asserted his speedy trial right and that he was prejudiced.
However, the judge attributed the delays primarily to defense counsel and to
the court, not the State or defendant individually. Yet the judge concluded that
the delay would be weighed heavily against defendant because he could have
pursued obtaining new counsel. That conclusion ignored the fact that
defendant repeatedly raised the issue of delay, starting in at least 2014 and in
2015 his need to secure new counsel, in submissions that no judge at that time
ever addressed.
The trial judge's conclusion also glossed over the State's and the court's
role in what happened here. We agree there is no record evidence that much of
the delay was intentionally or directly caused by the prosecution. However,
there is also no evidence in the record that the State attempted to move things
along faster. As the Court stated in Barker, "[a] defendant has no duty to bring
27 A-3443-18
himself to trial; the State has that duty as well as the duty of insuring that the
trial is consistent with due process. Moreover . . . society has a particular
interest in bringing swift prosecutions, and society's representatives are the
ones who should protect that interest." Barker, 407 U.S. at 527 (footnotes
omitted). And, the prosecution shares its "primary burden [with] the courts . . .
to assure that cases are brought to trial." Id. at 529.
In People v. Williams, 315 P.3d 1 (Ca. 2013), cert. denied, 572 U.S.
1140 (2014), the California Supreme Court concluded that a delay in bringing
a matter to trial was not attributable to the trial court. But, it described a trial
court's duty to shepherd a criminal case to trial as follows:
Thus, the trial court has an affirmative constitutional
obligation to bring the defendant to trial in a timely
manner. And to that end, it is entirely appropriate for
the court to set deadlines and to hold the parties
strictly to those deadlines unless a continuance is
justified by a concrete showing of good cause for the
delay. The trial judge is the captain of the ship; and it
goes without saying that the ship will go in circles if
the crew is running around the deck with no firm
marching orders.
We do not find the trial court directly responsible for
the delay in this case. We caution, however, that trial
courts must be vigilant in protecting the interests of
the defendant, the prosecution, and the public in
having a speedy trial.
28 A-3443-18
[Id. at 40 (emphasis added) (citation omitted) (quoting
State v. Couture, 240 P.3d 987, 1009-10 (Mont.
2010)).].
Here, there was very little shepherding of defendant's case to trial and
the resulting delay was inordinate. Moreover, the delay ultimately resulted in
his attorney of choice becoming unavailable to try the case because of
counsel's progressing illness that by 2018 made it impossible for him to
continue to represent defendant as he explained to the judge in detail at the
March 2018 conference.
Also, and significantly, it defies all reason as to why this matter
remained in the original venue when it was clear from the start that a then
sitting judge from the same vicinage would at the least be likely to be a
witness. Defendant recognized this reality at least by 2013 and pursued a
change of venue that was not addressed and granted until 2017. Moreover, in
the intervening years, while defendant certainly did not behave as a model
litigant, bombarding the court with various submissions in violation of his bail
conditions and pursuing his own unsupported defenses, he clearly only sought
a quick resolution of his case. Yet nothing happened, motions were left
unresolved and no trial was ever scheduled, or if it was, it never took place
until 2019.
29 A-3443-18
We are sympathetic to the judges in the Passaic vicinage who have to
deal daily with a significant volume of complex criminal cases. The vicinage
is home to highly populated areas giving rise to a high rate of serious crime.
Moreover, we commend them for their compassion. They, like all judges,
strive to deal with real-life problems confronting litigants and their attorneys,
which often understandably require postponement of scheduled matters.
People get sick. Lawyers have conflicts.
Having said that, we can discern no reason why this matter languished so
long, other than the various judges being (correctly) sympathetic to defendant's
counsel's health issues and his need to otherwise seek accommodations. But
where, as here, a defendant repeatedly asserts his right to a speedy trial, even
those admirable considerations by the judges had to yield, especially
considering the simple nature of this matter as compared to many of the more
complex pending cases on the court's docket. As we said in Tsetsekas, every
rule does have its limits and here none were recognized, which prevented the
matter from being tried "expeditiously and shepherd[ed] . . . to resolution
efficiently." Farrell, 320 N.J. Super. at 452-53.
We commend the trial judge for hitting the ground running when this
matter reached his vicinage in 2018. However, we must part company with his
30 A-3443-18
conclusion in this matter that defendant's right to a speedy trial was not
violated. The delays caused by defense counsel's personal needs were
certainly not the result of the attorney acting as his client's agent where the
client made it clear, not always in the most appropriate terms, that all he
wanted was for the matter to be brought to conclusion sooner than later, which
was in everyone's best interest.
Under these circumstances, we are constrained to vacate defendant's
conviction and dismiss the indictment. For that reason, we need not address
any of defendant's remaining arguments.
Reversed.
31 A-3443-18