Halpern, Crahay and Wood.
[133 NJSuper Page 470] Defendant was arrested on February 4, 1972 and charged with various gambling and related activities in violation of N.J.S.A. 2A:112-3 and N.J.S.A.
2A:121-3. He was arraigned on said charges in the Municipal Court of the City of Garfield on February 11, 1972.
In January 1974, about 23 months after his arrest, he was served with a state grand jury indictment charging him with bookmaking (N.J.S.A. 2A:112-3), working for a lottery (N.J.S.A. 2A:121-3(a)), maintaining a gambling resort (N.J.S.A. 2A:121-3(c)), and possession of lottery slips (N.J.S.A. 2A:121-3(b)).
In April 1974 he moved to dismiss the indictment on the ground that he was denied a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States.*fn1 The motion was denied, as was motion for leave to take an interlocutory appeal to this court.
Defendant then went to trial, waiving trial by jury and reserving his constitutional claims. He was convicted on three counts of the indictment and sentenced to concurrent State Prison terms of not less than one year nor more than 15 months. His principal ground of appeal is the asserted violation of his constitutional right to speedy trial.
Surprisingly, although the right to speedy trial is of equal stature with other rights guaranteed by the Constitution, it was only occasionally and sporadically dealt with by the Supreme Court of the United States prior to its decision in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Prior to that decision it was the rule in most jurisdictions that a defendant must make a demand for speedy trial as a prerequisite to a motion to dismiss for failure to accord him that right.
Our court rules provide for the implementation of that right in two situations: delay between indictment and trial, R. 3:25-2, and (that which obtains here) delay between the initial complaint and the return of an indictment by the grand jury. As to the latter, R. 3:25-3 provides:
If there is unnecessary delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint, the Assignment Judge may dismiss the complaint on his or the defendant's motion.
Here the complaint was not dismissed either upon defendant's motion or upon that of the assignment judge. Nevertheless, such failure did not constitute a waiver of the protection of the Sixth Amendment. In Barker v. Wingo, supra, the court said:
The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting that right solely on defendants. A defendant had no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover * * * society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest. [407 U.S. at 527, 92 S. Ct. at 2190]
The Supreme Court in Barker laid down a rule placing the primary burden on courts and prosecutors to assure that cases are promptly brought to trial. It prescribed, for consideration of such cases, "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Four such factors are identified: "Length of delay, the reason for the delay, the ...