Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.
Defendant appeals, pursuant to leave granted, from a County Court order denying his motions for dismissal of four indictments, each charging him with the unlawful sale of marijuana (N.J.S.A. 24:18-4) to State Trooper Irizarry on September 2 and 7, 1966, in Camden, New Jersey.
At the time Irizarry was a police undercover agent. The alleged offenses took place on the above noted dates in a Camden poolroom managed by defendant. Irizarry was participating in a large undercover narcotic investigation which commenced in August 1966 and terminated in January 1968. State Police detective Joseph DiCaro, assigned to the narcotics bureau, was the supervisor of the investigation and Irizarry was working under him.
The four indictments against defendant were returned in September 1966. However, they as well as all other indictments returned as a result of the above investigation
were impounded and not released until April 1968. Arrest raids generally took place in May 1968. The police raided premises on Haddon Avenue, Camden where they thought defendant resided with his family but they found it empty. He was not apprehended until October 3, 1969.
Defendant's motions for dismissal were grounded upon his contention that the three-year delay between the alleged offenses and his arrest deprived him of his right to a speedy trial, due process and the effective assistance of counsel. The same arguments are advanced on this appeal, with the addition of a claim that the delay was purposeful and oppressive. Defendant asserted below and now asserts that presently he is unable to recall the dates of the alleged offenses, his activities during those days, or any persons with whom he may have come in contact.
An accused who asserts that his rights of due process and to a speedy trial have been violated by reason of a delay between an offense allegedly committed by him and his arrest therefor has the burden of establishing both that (1) there was no legitimate reason for the delay and (2) he was prejudiced thereby. Powell v. United States , 122 U.S. App. D.C. 229, 352 F.2d 705, 708 (D.C. Cir. 1965). The court in Powell in determining that the delay therein was supported by a "commendably legitimate reason" stated:
Use of undercover agents is a necessary and accepted police practice, and the interest of the Government in keeping an agent's identity secret for a reasonable period is a legitimate basis for delaying the arrest of an individual wrongdoer while the agent is continuing his covert investigations. [at 708]
See also, State v. Rountree , 106 N.J. Super. 135 (Cty. Ct. 1969), wherein the court in a thorough and well reasoned opinion set forth the various matters necessary to be considered in arriving at an evaluation of the problem here involved.
Detective DiCaro testified that all indictments resulting from the Camden area undercover narcotic investigation
were impounded to protect the undercover agent and the investigation which he was conducting. They were released in April 1968, the investigation having been concluded. This testimony which was not contradicted was more than adequate support for the trial court's determination that the delay of defendant's arrest for at least the period from September 1966 to ...