STATE OF NEW JERSEY VS. ADAM J. PETRUZZIELLO(15-035, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-2462-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADAM J. PETRUZZIELLO,
Defendant-Appellant.
________________________________
Submitted March 7, 2017 – Decided June 27, 2017
Before Judges Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Municipal
Appeal No. 15-035.
Levow DWI Law, P.C., attorneys for appellant
(Evan M. Levow, of counsel and on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
Adam J. Petruzziello (defendant) appeals a December 21, 2015
order, which denied his request to dismiss a driving while
intoxicated conviction on speedy trial grounds. We reverse the
conviction.
In September 2013, defendant sustained significant injuries
when the motorcycle he was operating struck a parked truck. He
was charged with driving while intoxicated, N.J.S.A. 39:4-50;
reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A.
39:4-97; failure to maintain a lane, N.J.S.A. 39:4-88; and
speeding, N.J.S.A. 39:4-98.
The case was transferred to the Morris County Prosecutor's
Office (the prosecutor's office) in early October 2013, within
weeks of the accident, for investigation and possible presentment
to the Grand Jury. The record provides no information about the
course of that investigation, but no additional charges were
brought against defendant.
In September 2014, a Superior Court judge remanded
jurisdiction of the case to the Rockaway Township Municipal Court.
It is unexplained why the remand was not recorded until November
2014. Defendant's first appearance on the September 2013 charges
was in January 2015, when he pled not guilty. The parties were
in court on discovery issues in April and June. Defendant did not
raise the speedy trial violation claim until June 4, 2015. The
motion was denied on July 22, 2015, and defendant pled guilty to
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driving while under the influence, conditioned on the outcome of
the appeal. The other charges were dismissed.
Defendant appealed this conviction, which was heard de novo
in the trial court. On December 21, 2015, the trial court rejected
defendant's claimed speedy trial violation, and sentenced him to
a ninety-day suspension of his driver's license, fines, court
costs, penalties and a surcharge, which was the same sentence
imposed by the municipal court judge.1
The Superior Court found defendant's injuries did not cause
delay in the case. The twenty-two month delay was attributable
"at least in the first instance to a review by the Morris County
Prosecutor's Office," for investigation. The trial court did not
know whether the "delay [was] caused simply by the bureaucratic
miasma in the prosecutor's office or some further detailed
investigation." Nevertheless, the trial court found there was "no
indication" the delay was due to inattention by the prosecutor.
Further, there was "no evidence of a deliberate attempt by the
State to gain an advantage over the defendant by reason of the
delay." The trial court stated the State was prejudiced by delay
because it had to prove its case through "observation" and not
through blood alcohol results.
1
We understand defendant has served the suspension. The record
does not provide whether the monetary amounts were paid.
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The trial court found defendant did not assert his right to
a speedy trial until June 4, 2015, which was "a significant factor
in weighing the delay in this case, and its impact on the
defendant." It also found defendant "may have suffered some
anxiety" while the charges were pending, but there was no evidence
of "employment interruptions," "public ridicule or scorn or
negative status" because of these charges, nor "indication of
actual prejudice." The trial court did not find the delay
oppressive or that defendant's "speedy trial rights under the
Sixth Amendment were significantly impacted."
Defendant's appeal raises these issues:
POINT I: SINCE APPELLANT WAS THE ONLY ONE
INJURED IN THE ACCIDENT, AND NO
CRIMINAL CHARGES WERE FILED, THERE
WAS NO VALID REASON TO HAVE
TRANSFERRED THIS CASE TO THE COUNTY
PROSECUTOR, OR FOR IT TO HAVE
LANGUISHED THERE FOR ALMOST A YEAR,
BEFORE BEING SENT BACK TO THE
MUNICIPAL COURT AND RESOLVED 677
DAYS AFTER APPELLANT'S ARREST, THIS
CASE MUST BE DISMISSED.
POINT II: THE LAW DIVISION'S RELIANCE ON STATE
V. ALEXANDER,2 WHICH INVOLVES PRE-
ARREST AND PRE-INDICTMENT DELAY, IS
MISPLACED: STATE V. CAHILL3 IS
CONTROLLING AND REQUIRES DISMISSAL
OF THIS MATTER.
2
Reference is to State v. Alexander, 310 N.J. Super. 348 (App.
Div. 1998).
3
Reference is to State v. Cahill, 213 N.J. 253 (2013).
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Defendant has a constitutional right to a speedy trial. U.S.
Const. amend. VI; N.J. Const. art. I, ¶ 10. That right applies
"to quasi-criminal matters pending in the municipal courts," such
as driving while intoxicated cases. State v. Cahill, supra, 213
N.J. at 267. When evaluating whether defendant's constitutional
right to a speedy trial has been violated, four factors must be
reviewed and balanced, including: (1) length of delay, (2) reasons
for delay, (3) the defendant's assertion of a speedy trial claim,
and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). The
Court adopted these factors in Cahill, supra, 213 N.J. at 266.
The Sixth Amendment right to a speedy trial is different from
the timeframe under the Due Process Clause for "initiating a
criminal prosecution after discovering an offense has been
committed." State v. Aguirre, 287 N.J. Super. 128, 131-32 (App.
Div.) (citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.
Ct. 2044, 2048, 52 L. Ed. 2d 752, 758 (1977)) (other citation
omitted), certif. denied, 144 N.J. 585 (1996). "[P]re-indictment
or pre-arrest delay [is] measured by a far more rigorous standard."
Id. at 132. "In order to prevail, a defendant must demonstrate
'both that (1) there was no legitimate reason for the delay and
(2) [defendant] was prejudiced thereby.'" Ibid. (alteration in
original) (citations omitted).
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The distinction arises from the different interests which are
protected. Id. at 133. With respect to speedy trial claims,
arrest or indictment is a public act that may
severely interfere with the defendant's
liberty, whether or not he is free on bail,
and that may disrupt his employment, drain his
financial resources, curtail his
associations, create anxiety and subject him
to public obloquy. In contrast, the Due
Process Clause in the context of pre-
indictment or pre-arrest delay is confined to
protecting the ability of the defendant to
mount a defense against the prosecution's
charges.
[Ibid. (citation omitted).]
The trial court erroneously conflated the speedy trial and
due process analyses. In analyzing Barker factor two, the "reason
for delay," the trial court focused on whether the State had
attempted to gain an advantage over the defendant by its delay, a
concern expressed under the due process line of cases. In
analyzing Barker factor four, whether defendant was prejudiced,
the court concluded defendant had not demonstrated any "actual"
prejudice, which is part of the due process analysis.
Under Barker, there is no "bright-line rule" to determine
whether the delay in a case is excessive. Cahill, supra, 213 N.J.
at 258, 277. A delay exceeding one year prompts our review of the
other Barker factors. Id. at 266.
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The delay here was twenty-two months measured from the date
of the charges (September 2013) to the date of the guilty plea
(July 2015). Id. at 272 (calculating "length of the delay" from
the filing of charges "to the notice of trial in the municipal
court of the remanded charge[s]"). Fourteen months of the delay
occurred when the case was at the prosecutor's office for
investigation and before it was recorded by the municipal court
in November 2014. The court found, without support in the record,
there was no evidence of inattention by the prosecutor's office.
In fact, there was no evidence of attention or inattention.
Defendant acknowledged the remaining six-month delay, from January
to June 2015, was attributable to defense initiated discovery
issues. Defendant did not assert his right to a speedy trial
until June 4, 2015. Then, although the trial court found prejudice
to defendant based on anxiety suffered waiting for the case to be
heard while the charges were pending, it then asserted defendant
had not shown "actual" prejudice.
We are constrained to reverse because the trial court raised
the bar too high for defendant. Because defendant had not shown
actual prejudice beyond anxiety, or proof that the State was trying
to gain advantage over him by delaying the case, which are factors
under the Due Process Clause, it discounted the excessive twenty-
two month delay and the prejudice to defendant by the length of
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the delay. In Cahill, the court found a sixteen-month delay too
long when the case was not complicated, there was no justification
for the delay, and defendant's only proof of prejudice was anxiety.
Id. at 273-75. Under these facts where the record bespeaks of no
complexity, the case is similar to Cahill, requiring dismissal of
the charges.
Reversed.
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