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State v. McNamara

Decided: August 8, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN MCNAMARA, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Middlesex County.

Gaynor and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).

Stern

[212 NJSuper Page 103] Defendant was indicted for burglary, contrary to N.J.S.A. 2C:18-2. The offense occurred on February 14, 1981, and the indictment was returned on June 18, 1981. Following trial by jury defendant was convicted and was subsequently sentenced to the custody of the Commissioner of Corrections for five

years and was ordered to serve two years thereon before parole eligibility. The sentence was made consecutive to a term defendant was serving at the time of sentencing. He was also fined $100 and ordered to pay $25 to the Violent Crimes Compensation Board.

In the brief filed by counsel on behalf of defendant he argues only that "the defendant's conviction should be reversed and the indictment dismissed because the defendant's right to a speedy trial was violated."

Our careful review of the record, as well as the lack of it, convinces us that this argument is clearly without merit. R. 2:11-3(e)(2). Defendant was arrested in February 1981 and indicted in June of that year. He was released on bail following his arrest. The docket entries indicate proceedings directed to forfeiture of bail and reactivation of an inactive case. Apparently, defendant did not appear for proceedings as a result of incarceration elsewhere. On May 4, 1984 a hearing was held at which time the motion judge denied several pretrial motions and indicated that there would be a hearing on the Jackson v. Denno issue.

The docket indicates that a Notice of Motion to Dismiss the Indictment was filed on July 5, 1984 and was denied on July 27, 1984 in the absence of an appearance by defendant. When trial commenced on October 31, 1984 a record was created with respect to the motion. Defendant indicated that he had filed a motion for dismissal ". . . for being unable to find witnesses. I didn't name the witnesses I was looking for. I didn't know what his name was. . . ." Defendant indicated that his motion for dismissal was ". . . . due to the fact that I couldn't find a witness because of the great period of time that had elapsed." The trial judge heard the motion on the first day of trial because the defendant had been incarcerated at the time it was originally scheduled.

Defendant advised the court that following his arrest in February 1981 he was incarcerated in Rahway State Prison

from June 1981 until December 1981.*fn1 Defendant admitted that he was also incarcerated in Essex County in September and October 1982 and in Ocean County between July 25, 1983 and April 12, 1984. In April 1984 defendant was sentenced to concurrent terms of five years imprisonment and was serving the sentence in the Southern State Correctional Facility at the time the motion and trial were scheduled.

The fact that defendant is incarcerated cannot in and of itself justify a denial of speedy trial. Writs may be sent to facilities where a defendant is incarcerated for purposes of bringing him to trial. Cf. e.g., Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969). This is particularly true when defendant is within the state or within the jurisdiction of the Department of Corrections which can produce him for appearance at the county level. Nevertheless, the defendant's status, including knowledge or lack of knowledge concerning his custodial status, and trial commitments in other jurisdictions have bearing on the factors relating to denial of speedy trial.

Here, defendant was released on bail after his arrest and failed to appear for pretrial proceedings, apparently because of arrests and incarceration elsewhere. This is not a situation where, after incarceration in the Middlesex County Jail, defendant was transported to other jurisdictions without release on bail or with knowledge of Middlesex County authorities. Further, there appears to have been no request for speedy trial while defendant was incarcerated or otherwise, nor any motion seeking a trial date or dismissal until July 1984, and the trial was conducted within four months thereafter. Moreover, we perceive no prejudice, and ...


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