For reversal -- Justices Mountain, Sullivan, Clifford and Schreiber and Judge Kolovsky. For affirmance -- Justice Pashman and Judge Conford. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (dissenting). Conford, P.J.A.D., Temporarily Assigned (dissenting).
Defendant was convicted of bookmaking, working for a lottery and maintaining a gambling resort, violations of N.J.S.A. 2A:121-3, 3(a) and 3(c) respectively. The aggregate sentence imposed was not less than one year nor more than 15 months to be served in State Prison.
The Appellate Division, in an opinion reported at 133 N.J. Super. 469 (1975), reversed the judgment of conviction and ordered that the indictment be dismissed on the ground that defendant had been denied his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. This Court granted certification on the State's petition. 68 N.J. 170 (1975). Our conclusion is that defendant was not denied his constitutional right to a speedy trial. We therefore reverse the ruling of the Appellate Division and reinstate the judgment of conviction.
Defendant operated a bookmaking and numbers business out of his home in Garfield. The State Police, after obtaining court authorization, placed a tap on defendant's telephone and recorded on tape numerous instances of defendant's bookmaking and numbers activities extending over a period of some 13 days. Based on the foregoing, a warrant was obtained and a search of defendant's home was conducted by the State Police on February 4, 1972. Defendant, who was present in his home at the time, was arrested and charged with violations of the gambling laws. He was arraigned in Municipal Court on February 11, 1972 and released on bail.
Some 22 months later (December 5, 1973) defendant was indicted by the State Grand Jury on the charges for which he was ultimately convicted.*fn1 In April 1974, defendant's motion to dismiss the indictment on the ground
that he had been denied his Sixth Amendment right to a speedy trial was denied by the trial court. An application to the Appellate Division for leave to appeal this interlocutory ruling was denied on May 30, 1974.
When defendant was brought to trial in June 1974, defense counsel discussed with the trial judge the possibility of defendant's pleading guilty to the charges and at the same time preserving his right of appeal on the Sixth Amendment issue. The conclusion was that no such procedure was available.
Accordingly, defendant stood trial for the sole purpose of preserving his right to appeal the ruling on the Sixth Amendment issue. To that end defendant waived his right to a jury trial and stipulated to the admissibility of the State's wiretap evidence, that it was his voice recorded on the tape and that the State's witnesses were qualified experts in the fields of wiretaps, monitoring and gambling activities. The State on its part took the position that at sentencing defendant should be treated as if he had entered a guilty plea. As heretofore noted, defendant was found guilty.
The Appellate Division, in considering defendant's claim that he had been denied his Sixth Amendment right to a speedy trial, purported to apply the balancing test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). It found that the 22-month delay between the charge and indictment without any explanation or reason being offered for the delay was grossly inordinate and concluded that, under the Barker v. Wingo test, defendant had been denied his constitutional right to a speedy trial even though he had not demonstrated any specific prejudice to his defense. State v. Szima, 133 N.J. Super. 469, 473.
Preliminarily it should be noted that while most of the cases dealing with the right to a speedy trial are concerned with delay between indictment and trial, it is clear that the protection of the Sixth Amendment attaches upon
arrest on a criminal charge and need not await indictment or information. Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975).
Prior to 1967 a defendant's right to a speedy trial in our State system was governed by Article I, paragraph 10 of the New Jersey Constitution. This provision was construed to be a right to move for such a trial. State v. Masselli, 43 N.J. 1 (1964); State v. O'Leary, 25 N.J. 104 (1957); State v. Smith, 10 N.J. 84 (1952). However, in 1967 the United States Supreme Court in Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967), held that the right to a speedy trial secured by the Sixth Amendment of the United States Constitution was "fundamental" and was imposed on the states by the Due Process Clause of the Fourteenth Amendment. What was lacking, however, was any definitive pronouncement of the standards by which this right to a speedy trial was to be judged. See concurring opinion of Brennan, J., in Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970).
In 1972 the Supreme Court in Barker v. Wingo, supra, undertook to set out the dimensions of this right. First, rejecting the suggestion that a fixed time period be set, it held that the right to a speedy trial is relative and depends upon circumstances. The Court recognized that some legislatures had enacted laws and some courts had adopted rules of procedure fixing a specified time within which a defendant must be brought to trial, but it held that there was no constitutional basis for requiring that the speedy trial right be so quantified.
It also rejected the concept that the right to a speedy trial was waived if not demanded. However, it held that a defendant had some responsibility to assert a speedy trial claim and emphasized that failure to assert the right would make it difficult for a defendant to prove that he was denied a speedy trial. The proper approach suggested by the Supreme
Court was an ad hoc balancing test in which the conduct of both the prosecution and the defendant are weighed.
Four factors which courts should assess in determining whether a particular defendant has been deprived of the right of speedy trial were identified. They are length of delay, the reason for the delay, the defendant's assertion of the right and prejudice to the defendant. The factor of prejudice was said to include oppressive pretrial incarceration, anxiety and concern of the accused and impairment of the defense. Of these, impairment of the defense was considered the most serious since it went to the question of fundamental fairness.
The Court regarded none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they were to be treated as related factors to be ...