Matthews, Seidman and Horn.
This is an appeal by defendant from a judgment of conviction entered on August 20, 1975 for atrocious assault and battery (N.J.S.A. 2A:90-1) and threat to kill (N.J.S.A. 2A:113-8).
On February 6, 1967 defendant was charged with the rape of a 13-year-old female (N.J.S.A. 2A:138-1). On or about the date of that alleged crime, January 11, 1967, defendant left the State and was subsequently arrested in Richmond, Virginia, on a charge of breaking and entering. On June 8, 1967 a Passaic County indictment was returned against defendant charging him with carnal abuse.
Subsequently, defendant was convicted of burglary in Virginia and sentenced to serve a five-year term. On August 3, 1967 a detainer was filed by New Jersey authorities in Virginia. Defendant did not learn of the New Jersey indictment or detainer until he appeared before the Virginia Parole Board in December 1968. On gaining that knowledge he wrote a letter, dated December 7, 1968, to the Passaic County Prosecutor requesting that he be given a speedy trial or that the indictment be dismissed. On January 9, 1969, defendant wrote to the Passaic County Court requesting a
speedy trial. This request was communicated to the assignment judge who, on January 30, 1969, wrote to the prosecutor emphasizing that should he fail to bring defendant to trial "as soon as possible" there might be a dismissal of the indictment.
When the prosecutor undertook to extradite defendant from Virginia, the Virginia authorities advised him that extradition was not necessary since under Virginia law defendant could be returned under a much simpler process. However, this procedure was never implemented, apparently because the assistant prosecutor handling the case had left the office. On April 16, 1969 defendant wrote again to the Passaic County Prosecutor stating that in view of the fact that he had not been given a speedy trial, the charges against him should be dropped.
After defendant had served his sentence in Virginia, he was returned to Passaic County on July 16, 1970 for trial. He then moved to dismiss the indictment, and on September 25, 1970 the assignment judge concluded that defendant had been denied a speedy trial; accordingly, the indictment was dismissed. Defendant was then released from custody and no further prosecutorial action was taken until July 20, 1971 when three new indictments were returned (all based upon the incident of January 11, 1967), charging him with (1) atrocious assault and battery (N.J.S.A. 2A:90-1); (2) threat to kill (N.J.S.A. 2A:113-8) and (3) impairing the morals of a child (N.J.S.A. 2A:96-3).
On defendant's motion the trial judge dismissed all three indictments on the ground that defendant had been denied a speedy trial. His rationale, in essence, was that since it had been previously ruled that there was substantial prejudice to defendant three years and seven months after the event, a trial on new charges arising out of the same incident some 4 1/2 years later would be similarly prejudicial.
In an unreported per curiam opinion, decided November 30, 1972, another part of this court affirmed so much of the trial judge's order which dismissed the indictment for impairing
the morals of a child on the ground of double jeopardy but reversed as to the other indictments, finding that (1) they charged defendant with crimes different from those previously returned, and (2) the trial judge improperly found that the "delay, without more," was adequate to establish that defendant had been prejudiced. The court emphasized:
In short, possible prejudice to the accused is not the test. There must be a showing that the pre-indictment delay caused "actual prejudice to the conduct of the defense * * * and * * * that the Government intentionally delayed to gain some tactical advantage over * * * or to harass" the accused. United ...