Before Judges Petrella, Skillman and Eichen. *fn1
The opinion of the court was delivered by: Skillman, J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Hudson County.
This appeal involves a claim that defendant was denied due process of law because the negligence of the police in investigating the crime resulted in pre-indictment delay which impaired his ability to defend the charges.
Defendant was indicted for attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, armed robbery, in violation of N.J.S.A. 2C:15-1, armed burglary, in violation of N.J.S.A. 2C:18-2, second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), terroristic threats, in violation of N.J.S.A. 2C:12-3, fourth degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4), possession of a weapon, a handgun, for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a, and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b. Defendant moved to dismiss the indictment on the ground that he had been denied due process of law because of the State's delay in investigating the crime and presenting the matter to the Grand Jury. The trial court denied the motion. Defendant subsequently pled guilty pursuant to a plea agreement to the armed robbery charge and the two counts of aggravated assault. The court sentenced defendant in accordance with the plea agreement to a twenty year term of imprisonment, with ten years of parole ineligibility, for armed robbery, and a concurrent ten year term, with three and one-third years of parole ineligibility, for the second degree aggravated assault. This sentence was made consecutive to a sentence defendant was already serving on another indictment. The court merged defendant's conviction for the fourth degree aggravated assault into his conviction for armed robbery. The court dismissed the remaining charges in accordance with the plea agreement.
On appeal, defendant makes the following arguments:
I. SINCE DEFENDANT DEMONSTRATED THAT HE WAS DENIED DUE PROCESS OF LAW BY THE STATE'S FAILURE TO INDICT HIM FOR TWO AND ONE-HALF YEARS, THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.
A. The Prejudice to Defendant.
B. Length and Reasons for Delay.
II. THE IMPOSITION OF A TEN-YEAR PAROLE DISQUALIFIER ON COUNT ONE AND THE REQUIREMENT THAT THE SENTENCES ON THIS INDICTMENT RUN CONSECUTIVELY TO DEFENDANT'S PRIOR SENTENCE IS MANIFESTLY EXCESSIVE.
We reject defendant's arguments and affirm his conviction and sentence. *fn2
The crime occurred at a private residence in Jersey City on December 26, 1992. The two perpetrators, one of whom was wearing a mask, forced their way into the house, asked the owner where her safe was located, then ran upstairs and searched the bedrooms. While in the owner's bedroom, the masked perpetrator pulled her telephone from the wall. Continuing their search for the safe, they took the owner into her basement, where they encountered several other people playing cards. When one of them jumped up, the masked perpetrator shot him, inflicting non-fatal wounds to his hand and head. The perpetrators then seized a strongbox containing $2,900 in cash and fled the house.
The police officers investigating the crime obtained a partial latent fingerprint from the telephone which the masked perpetrator had ripped out of the wall. However, the police simply placed the fingerprint in a file rather than sending it for analysis. Two years later, when the victim of the robbery inquired as to the status of the investigation of the crime, the police informed her that it was at a "dead end" because no one had identified the perpetrators. She then asked about the latent fingerprint. At this point the police found the fingerprint in the file and sent it for analysis, which resulted in a determination that the fingerprint on the telephone matched defendant's fingerprint. Four months later, defendant was indicted primarily based on this fingerprint identification.
In support of his motion to dismiss, defendant submitted his own affidavit which alleged that at the time of the crime, he was in the company of his brother Alvin Alexander, who subsequently died. Defendant also submitted a second affidavit which alleged that he had been in the victim's home on prior occasions and had used the telephone on which his fingerprint was found to call his cousin's beeper. In addition, defendant submitted a memorandum from the Bell Atlantic Company, which stated that his request for the victim's telephone records for 1992 could not be honored because such records are only retained for eighteen months. Based on ...