State v. Smith

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: MORGAN
• Citation: State v. Smith, 131 N.J.Super. 354, 330 A.2d 29 (N.J. Super. App. Div. 1974)
• Decision Date: 06 December 1974
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Joseph SMITH et al., Defendants-Appellants.

Page 354

131 N.J.Super. 354

330 A.2d 29

The STATE of New Jersey, Plaintiff-Respondent, v. Joseph SMITH et al., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1974.

Decided Dec. 6, 1974.

Joseph J. Rodgers, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Robert E. Levy, Asbury Park, for defendant-appellant Smith.

Paul J. Feldman, Asbury Park, for defendant-appellant Rytelewski (Charles Frankel, Asbury Park, attorney).

Theodore J. Labrecque, Jr., Red Bank, for defendant-appellant Dolan (Labrecque, Parsons & Bassler, Red Bank, attorneys).

James J. McLaughlin, Trenton, for defendant-appellant Hyres (McLaughlin, Abbotts & Cooper, Trenton, attorneys, Roland R. Formidoni, Trenton, on the brief and on the appendix).

Before Judges MICHELS, MORGAN and DEMOS.

The opinion of the court was delivered by

MORGAN, J.A.D.

Defendants, public officials of Jackson Township, appeal from an order, entered October 26, 1973, dismissing without prejudice Indictment 289--71 charging them in 14 counts with conduct amounting to extortion, misconduct in office and conspiracy to commit some or all of those offenses. Defendants Rytelewski, Dolan and Hyres also appeal, pursuant to leave granted, from an interlocutory order of April 19, 1974 denying their motions for a judgment of acquittal with respect to Indictment SGJ 14--73--2, charging them with the same offenses with which they were charged in Indictment 289--71 which had previously been dismissed without prejudice. With respect to both indictments defendants contend that their rights to a speedy trial guaranteed by N.J.Const. (1947), Art. I, par. 10, and U.S.Const., Amends VI and XIV, and implemented in R. 3:25--2, have been violated by the orders from which they are here appealing.

The events germane to this appeal commenced on March 3, 1971 when the Ocean County grand jury returned Indictment 158--70 against five defendants charging them with the offenses described above, which were alleged in the 14-count indictment to have occurred between December 1, 1969 and August 1, 1970. The matter was first scheduled for trial on October 18, 1971 and then was rescheduled for October 26, 1971. Although all counsel appeared on both dates, the case was not tried.

Thereafter, the State resubmitted the case to the grand jury, which on January 14, 1972 returned a superseding indictment, No. 289--71, virtually identical to the previous indictment, and one of the two indictments here under consideration. The previous indictment, 158--70, was not, however, ordered dismissed until April 19, 1972, I.e., after the trial court, at the State's request, had dismissed the superseding indictment, No. 289--71, without prejudice.

The case was next listed for trial on February 14, 1972, this time under its new designation, No. 289--71, but was again not tried. It was thereafter scheduled for trial on March 27, 1972, not moved, and relisted for April 10, 1972. On that date the State requested an adjournment indicating that it was unprepared to proceed, and the court, over objection of defendants Dolan and Hyres, adjourned the matter until Monday, April 17, 1972, following a conference with the assignment judge.

On April 14, 1972, three days before the peremptorily scheduled trial date, the State moved to have Indictment No. 289--71 dismissed without prejudice on the ground that new developments in the case required further investigation. All defendants, except Smith, objected, requesting instead judgments of acquittal. The court granted the State's motion on that date, although the order reflecting this dismissal was not entered until October 26, 1973, almost 18 months after the decision granting it. Defendants appeal from this order, contending that its entry violated their constitutionally guaranteed rights to a speedy trial.

All adjournments were secured by the State. No defendant ever requested an adjournment and at every scheduled trial date all defense counsel appeared presumably ready to proceed with the trial.

Following the dismissal of April 14, 1972 the matter remained in a quiescent state. On May 16, 1973, 13 months later, the state grand jury returned Indictment SGJ 14--73--2 charging defendants with having committed the same offenses as were charged in the preceding two indictments. No dates were assigned for the trial of this indictment, and on April 19, 1974 defendants moved for a judgment of acquittal. The court denied this motion and, pursuant to leave granted, defendants appeal from the order. The appeals concerning the two orders were consolidated for consideration by this court.

Defendants contend that from the inception of the charges against them in March of 1971, when Indictment No. 158--70 was returned, they have been subjected to a series of delaying tactics on the part of the State precluding disposition of these charges for about a 3 1/2-year period of time. They point to the promptness with which charges were brought and the State's unconscionable delay in seeking their resolution. Time and time again, defendants had appeared for a series of scheduled trial dates, ready and eager for a trial of the charges levelled against them, only to be met by one excuse or another by the State as to why the case could not conveniently be tried. As a result they have been forced to live under a humiliating penumbra of suspicion and distrust generated by these unresolved charges which question their personal and professional integrity, suitability for public service and their general worth as individuals. In short, they contend that the interests sought to be protected by the right to a speedy trial have been undermined and that, therefore, the charges should be dismissed.

Although an accused's right to a speedy trial has been held to be a fundamental one, the criteria by which its scope is to be judged have only recently been redefined. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In Barker the court observed the 'impossibility' of determining with precision when an accused's right to a speedy trial has been denied. How long is too long, the central inquiry, cannot be answered by sole reference to the lapse of a specified amount of time between indictment and trial, or lack of trial.

We find no constitutional basis for holding the speedy trial right can be quantified into a specified number of days or months. (407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 113)

Thus, in Barker a delay of five years between indictment and trial was held not violative of Barker's right to a speedy trial, whereas in Klopfer, under an unusual state procedure, a delay of 18 months was held violative. In Strunk the lower court held that a delay of ten months violated defendant's right to a speedy trial, although the Supreme Court had no opportunity to pass on the correctness of that determination because the state had not appealed it.

The courts in New Jersey have experienced a similar inability to calculate the extent of tolerable delay with anything approaching mathematical exactitude. Thus, in State v. Coolack, 43 N.J. 14, 202 A.2d 422 (1964), an indictment charging murder was ordered dismissed after a delay of approximately 12 years where witnesses had died in the interval. In State v. Smith, 10 N.J. 84, 89 A.2d 404 (1952), the court refused dismissal following a delay of approximately six years between indictment and the motion to dismiss. In State v. O'Leary, 25 N.J. 104, 135 A.2d 321 (1957), the court refused to vacate a conviction based upon a trial held 22 years after return of an indictment. Application for dismissal based upon a nine-year delay between indictment and trial was denied in State v. Von Atzinger, 81 N.J.Super. 509, 196 A.2d 241 (App.Div.1963).

Rejecting a rigid approach in favor of a flexible one to the troublesome problem created by trial delays, the court in Barker adopted a so-called 'balancing test' to determine compliance with constitutional requirements. This test is to be applied to each speedy-trial case on an Ad hoc basis, and requires the consideration and weighing of four factors in evaluating a claim that an accused's right to a speedy trial has been violated. They are: length of delay, the reason for the delay, defendant's assertion of his right, and prejudice to defendant. These were only some of the factors which the court in Barker was able to identify as bearing on disposition of speedy trial claims. The list of factors referred to was not intended to be an exhaustive one but only illustrative of type of factors properly considered by a court in determining the merits of any speedy trial claim. Each of these, then, will be discussed in the following sections of this opinion in the context of the present case, and the changes in New Jersey law necessarily wrought by Barker v. Wingo, Supra, will be identified in appropriate points of the discussion.

First, confining discussion for the moment to the decision of April 14, 1972 dismissing Indictment No. 289--71 without prejudice, the time lapse between the indictment and the dismissal without prejudice can be viewed as three months, if measured from the date on which the superseding indictment, No. 289--71, was returned, or 13 months if measured from the date the superseded indictment, No. 158--70, was returned. The State calculates the time lapse by reference to the indictment to be moved (three months), whereas defendants compute the time lapse by reference to the inception of charges made against them, whatever their form (13 months). Since both the superseded and superseding indictments were both outstanding against defendants on the date the trial court dismissed the...