Halpern, Larner and King.
[155 NJSuper Page 513] Defendant was convicted of distribution of a controlled dangerous substance (N.J.S.A. 24:21-19(a)) and conspiracy to distribute a controlled dangerous substance (N.J.S.A. 24:21-24). Two concurrent sentences to the Essex County Correction Center were suspended and he was fined and placed on probation.
Defendant's appeal is limited to an allegation of error in the denial of his motion to dismiss the indictment made under R. 3:25-3 because of unreasonable delay in its disposition.
The motion to dismiss was heard on an evidential hearing before a judge prior to trial. The judge made detailed factual findings and concluded that the delay was not unreasonable under the particular facts herein and denied the motion.
Evidence was submitted to a grand jury on a direct presentation by the prosecutor and resulted in the return of the indictment in December 1971 relating to an offense which occurred on July 27, 1971. Defendant was not arrested or arraigned either prior to or immediately subsequent to the indictment.
There was substantial testimony in the record relating to efforts by prosecutor's detectives and sheriff's officers to locate and arrest defendant commencing February 1972 until August 6, 1975 when defendant was found in the Newark jail where he was confined as a result of an arrest under traffic violation warrants.
The narrow issue herein is whether delay after indictment, where defendant has not been arrested or arraigned because of the inability of prosecution officials to locate him, is sufficient without more to warrant the dismissal of an indictment. We emphasize the qualification "without more" because there is no claim that the delay was a wilful or deliberate tactic by the State, nor is there any showing of actual prejudice to defendant in his defense.
Defendant's only assertion on appeal in the area of prejudice is a general claim that he does not remember what he was doing on the day of the offense charged in the indictment. Such a claim has no validity as an element of prejudice on a motion to dismiss because of a speedy trial violation. As we said in State v. Roundtree , 118 N.J. Super. 22 (App. Div. 1971):
A mere claim of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice as a basis for a reversal or dismissal of the charge. Particular circumstances resulting from the delay other than a general inability to recollect or reconstruct events on the day of the alleged offense must be shown. [at 29]
Although the record reflects that the efforts to locate defendant were not thorough or exhaustive, nevertheless there is substantial evidence to support the finding by the court that "reasonable" efforts were undertaken. These included inquiries at available addresses and post office facilities, examination of telephone directories, inquiries at Essex County and State correctional institutions and at the office of the Newark Welfare Agency, as well as notification by teletype of appropriate police authorities throughout the country that defendant was wanted.
In any event, the issue before us does not depend upon an evaluation of prosecution efforts to find defendant in order to conclude whether there was any avenue of investigation which was neglected or whether a more conscientious search would have been more successful. As long as the picture of reasonable efforts negates any inference of wilful neglect or total abdication of the State's function, it should play no part in determining the merits of a speedy trial motion. See State v. Rodriguez , 112 N.J. Super. 513, 515-516 (App. Div. 1970).
It is noteworthy that defendant has not argued his motion to dismiss before the trial court or on appeal on the thesis of a constitutional deprivation under the Sixth or Fourteenth Amendments. He has rather addressed his motion to the right codified in this State by R. 3:25-3 of the rules governing criminal practice. Nevertheless, we are satisfied that the denial of the motion to dismiss was warranted, whether viewed as a ...