Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
Defendant appeals from his conviction on two counts of an indictment for possessing and selling marijuana to an undercover state trooper on July 12, 1968. He was sentenced to concurrent terms to the State Reformatory for from two to five years and fines of $200 which were suspended.*fn1 The grounds of appeal are: (a) violation of Sixth Amendment rights of defendant arising from the 11 months' delay between date of offense and arrest; (b) excessiveness of sentence, and (c) error in sentencing by a judge other than the trial judge.
Defendant was 18 years of age at the time of the alleged offenses, a recent high school graduate. After summer working hours he frequented an apartment which was a social gathering place for young men and women. State Trooper Perozzi was assigned to undercover narcotics investigation of the apartment. Disguised in mustache and beard he became a frequent attendant at the apartment over a period of two months and purchased marijuana there, but never from defendant before July 12, 1968, although they were present at the same time on a number of occasions.
Perozzi testified that on July 12, 1968 he had an appointment to meet another habitue of the apartment there to buy marijuana; that when he arrived there that evening and asked for the other person, explaining what he wanted, one William Green, who apparently lived there, said "we have some," motioning to defendant; that Green and defendant went to a bedroom and returned with an envelope which defendant handed to Perozzi in return for five one-dollar bills, and that Green then took one of the bills from defendant, saying "I'll take my share now."
Defendant denied the occurrence. He said he was sleeping in the apartment on the occasion in question when Green opened the bedroom door and asked, "Have you any grass?" He replied he did not and went back to sleep. A defense witness who had also been in the apartment gave testimony tending to support defendant's version and contradict that of Perozzi. Green was not called as a witness, having apparently been confined in jail in Florida at the time of this trial.
There was proof at the trial that the envelope purchased by Perozzi contained marijuana.
Perozzi continued to frequent the apartment for a time after the occurrences of July 12, 1968. Defendant was not arrested until June 5, 1969, having in the interim completed one year of attendance at Oglethorpe College in Atlanta, Georgia. He was released on bail pending trial, and also after sentencing, which took place May 4, 1970, pending this appeal.
Prior to trial defendant unsuccessfully moved to dismiss the indictment because of the 11-month delay between the alleged offense and the arrest, on the ground that his defense of the charge was impaired by the delay. His reliance is on Ross v. United States , 121 U.S. App. D.C. 233, 349 F.2d 210 (1965); see the discussion of Ross and later qualifying decisions of the same federal circuit court in State v. Rountree , 106 N.J. Super. 135 (Cty. Ct. 1969). In Ross there was a reversal of a narcotics conviction for lack of due process where the complaint against the defendant was not sworn out until seven months after the alleged offense; apart from the narcotics, the prosecution's case consisted solely of the testimony of a policeman purchaser who had to refresh his recollection of the event from a notebook, and defendant was unable to recall events of the day of the offense. The present case is obviously distinguishable. Both Perozzi and defendant had independent recollection of the day's events. Moreover, some delay (perhaps not as much as
here) is usual in informer cases of this kind to permit the police to complete their investigations.
In any event, the basically controlling law in this State is that ordinarily an indictment may be returned at any time within the statute of limitations and that a speedy trial is not denied unless the State fails to try defendant on a date fixed by the court upon the defendant's application to have such date specified. State v. Masselli , 43 N.J. 1 (1964). See also Dickey v. Florida , 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). No decision of the United States Supreme Court or of our own appellate courts has yet held that delay between the time of the State's knowledge of a defendant's involvement in a crime and the time of his indictment or arrest impairs a constitutional right. Cf. the concurring opinion of Justice Brennan in Dickey v. Florida, ...