State v. Merlino

• Decision Date: 26 September 1977
• Citation: 153 N.J.Super. 12,378 A.2d 1152
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Anthony MERLINO et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 12

153 N.J.Super. 12

378 A.2d 1152

STATE of New Jersey, Plaintiff-Appellant, v. Anthony MERLINO et al., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Submitted Sept. 14, 1977.

Decided Sept. 26, 1977.

William F. Hyland, Atty. Gen., for plaintiff-appellant (Robert E. Rochford, Deputy Atty. Gen., of counsel and on the brief).

Stockman, Marinari, Smithson & O'Donnell, Trenton, for defendants-respondents Anthony Merlino and Ida Lois Merlino (Maria Marinari Sypek, Trenton, on the brief).

Lenox, Giordano, Devlin, Delehey & Socey, Trenton, for defendants-respondents Pasquale Louis Cesaro and Ambilia Mary Cesaro (Nicholas M. Giordano, Jr., Trenton, on the brief).

Vincent J. Convery, Trenton, for defendant-respondent Elizabeth Gibson.

John J. Barry, Trenton, for defendant-respondent Harry N. Van Doren.

No briefs filed by William Bethea and Henritta Dorothy Bethea and Grace Kelly.

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

LARNER, J. A. D.

The State appeals from the order of the Assignment Judge of Mercer County dismissing the indictment as to all defendants because of the denial of the constitutional right to a speedy trial. U.S.Const., Amend. VI; R. 3:25-3. Complaints were filed on January 10, 1972 against these defendants for violation of the gambling laws. They were arrested on that day and released on bail or personal recognizance. No further action was taken by the State or by defendants until they were indicted by a grand jury on November 10, 1975. Promptly thereafter, some of the defendants moved to dismiss the indictments.

Pursuant to the motion of defendants Anthony and Ida Merlino, and Pasquale and Ambilia Cesaro, the judge entered orders dismissing the indictment against them. Thereafter, upon the representation of the State that the nonmoving defendants were similarly situated, the judge on his own motion entered a dismissal as to the remaining defendants.

The State presented no verified proofs in conjunction with its assertion that the inordinate delay of 46 months between arrest and indictment was dictated by justifiable reasons. Its position rested solely on the general excuse in argument to the judge relating to the pressure of the caseload in the State Enforcement Bureau of the Division of Criminal Justice and its administrative decision to give priority to other cases.

Although there was no showing of tangible prejudice to defendants by way of loss of evidence or oppressive incarcerations, nevertheless the facts support the determination that the unusual period of delay, the absence of justifiable reasons and the anxiety and concern inherent in an unresolved criminal charge outweigh the absence of actual trial prejudice to defendants. See United States v. Mann, 291 F.Supp. 268 (S.D.N.Y.1968). The proof of such actual prejudice is not a necessary condition precedent to the vindication of the speedy trial guarantee. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); State v. Moore, 147 N.J.Super 490, 498, 371 A.2d 742 (App.Div.), certif. den. 74 N.J. 272, 377 A.2d 676 (1977).

In balancing the relevant factors herein, it is manifest that the extraordinary delay of 46 months without reason is a more weighty element than the 22 months involved in State v. Szima, 70 N.J. 196, 358 A.2d 773, cert. den. 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976). And where the delay is so extreme, accompanied by the total absence of a rational excuse for the same, these factors weigh so heavily in the balancing process mandated by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as to overcome the absence of actual or demonstrable prejudice on the part of defendants.

The effort of the State to attribute the delay to administrative lag and priorities is without substance where the failure relates to the delay in presentation of the case to a grand jury. This process does not involve the complexities of preparation of a case for trial. The presentation of a prima facie case for grand jury consideration entails a much simpler, shorter and more perfunctory performance. The backlog of cases is no excuse for failure to indict for nearly four years.

A therapeutic viewpoint on this score is expressed by Professor H. Richard Uviller in his article entitled "Barker v. Wingo : Speedy Trial Gets a Fast Shuffle," 72 Colum.L.Rev. 1376, 1385 (1972):

One might think that where the state fails to justify its own dilatory maneuver, the defendant's claim should prevail regardless of other factors. The inexcusable breach of the state's acknowledged duty would appear to be the one instance in which loss of the opportunity to try the defendant could be countenanced on a simple theory of deterrence. Indeed, apart from the sixth amendment, one would think due process itself would cringe at such tactics.

The State also rests its argument upon the failure of defendants to move for a dismissal of the complaint under R. 3:25-3, relying upon State v. Szima, ...