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State v. Smith

Decided: May 17, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH SMITH, MICHAEL RYTELEWSKI, HERBERT DOLAN AND JAMES W. HYRES, DEFENDANTS-APPELLANTS



For affirmance -- Justices Mountain, Sullivan, Clifford and Schreiber and Judge Kolovsky. For reversal -- Justice Pashman and Judge Conford. Pashman, J. (dissenting). Conford, P.J.A.D., Temporarily Assigned (dissenting).

Per Curiam

The judgment is affirmed substantially for the reasons expressed by the Appellate Division.

PASHMAN, J. (dissenting). This case poses the question whether defendants' fundamental right to a speedy trial which is protected by the sixth and fourteenth amendments of the United States Constitution and article I, paragraph 10 of the New Jersey Constitution of 1947, has been denied by lengthy delays in their prosecution. The majority today determines that these delays, which extended for a three year period, did not contravene defendants' constitutional rights for the reasons enunciated by the Appellate Division, State v. Smith, 131 N.J. Super. 354 (App. Div. 1974). From this disposition, I must dissent.

This case involves two separate appeals which arise from different though related indictments. The first appeal contests an order entered on October 26, 1973 which dismissed defendants' indictment without prejudice (hereinafter the "first appeal"). The second appeal relates to an adverse decision (rendered on April 19, 1974) to defendants' motion for a judgment of acquittal from a subsequent indictment (hereinafter the "second appeal").*fn1 On both occasions, defendants

argued for acquittal on the ground that their right to a speedy trial had been denied. While the discussion of these appeals in the Appellate Division opinion makes a full restatement of the facts unnecessary, a brief outline of the procedural history is instructive.

The first appeal concerns the indictment of appellants, who are public officials of Jackson Township, on various counts of conspiracy, bribery, extortion and misconduct in office. They were indicted with one James Callahan, by an Ocean County Grand Jury on March 3, 1971. A trial was initially scheduled for October 18, 1971 but was postponed until October 26, 1971, at which time another adjournment was granted on motion by the State. On January 14, 1972, the Ocean County Grand Jury returned a superseding indictment which was virtually identical to the earlier indictment.*fn2 Trial was scheduled for February 14, 1972 and again for March 27, 1972. Nonetheless, as with the first indictment, these hearings were postponed upon request by the State. On April 10, 1972, all parties again appeared in court for trial, but again the State requested an adjournment -- this time because the Attorney General's office had just entered the case and was not prepared to proceed.*fn3 Over the objections of defendants, the matter was rescheduled for April 17, 1972 with the explicit understanding that no additional continuances would be granted. However, on April 14, 1972, the State moved to dismiss the superseding indictment without prejudice because of new developments in its investigations. These developments primarily concerned negotiations which the State was conducting with Callahan in hopes that he would appear as a witness for the State. Counsel for Hyres, Dolan and Rytelewski objected to this

delay and suggested that the dismissal should be granted with prejudice. After hearing arguments, the court granted the State's motion although an order to this effect was not formally entered until October 26, 1973. These facts form the basis for appellants' claim with respect to their first appeal. In essence, they contend that the State's failure to bring this matter to trial between March 3, 1971 (the day they were indicted) and April 14, 1972 (the day the superseding indictment was dismissed) -- an interval of 13 months -- constituted a denial of their right to a speedy trial.

The second appeal arises from appellants' reindictment on May 16, 1973, 13 months after the second and superseding indictment was dismissed. No trial date was set for this new indictment and defendants did not move for a date certain under R. 3:25-2. On April 19, 1974, more than 11 months after their reindictment, defendants moved for a judgment of acquittal. The failure of the State to bring this case to trial before that date (April 19, 1974) forms the basis for defendants' second appeal.

Although the right to a speedy trial asserted by defendants is basic to the provision of a fair trial, it should be noted that under existing law, different significance is accorded the right by courts on the state and federal levels. While the right to a speedy trial under our State Constitution has been construed only as a right to request a date certain for trial, State v. Masselli, 43 N.J. 1, 12 (1964); State v. Coolack, 43 N.J. 14, 16 (1964); State v. O'Leary, 25 N.J. 104 (1957); State v. Smith, 10 N.J. 84, 93 (1952); R. 3:25-2, the United States Supreme Court has recognized its importance in safeguarding the constitutional protection afforded individual defendants and thus has provided this fundamental right with greater force and vitality.*fn4 In addition, the United States Supreme Court has held that the

constitutional guarantee of a speedy trial is applicable to the states under the fourteenth amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); see also Dickey v. Florida, 398 U.S. 30, 37-38, 90 S. Ct. 1564, 26 L. Ed. 2d 26, 31-32 (1970); Smith v. ...


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