On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-10-1273-I.
Before Judges Conley, Lefelt and Lisa.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 21, 2002
The State charged defendant Robert Fulford with speeding, drunk driving and an indictable weapons offense. Defendant argues his constitutional right to a speedy trial was violated because the State did not try the driving charges until after defendant completed Pre-Trial Intervention (PTI) for the weapons offense. We reject defendant's arguments and affirm.
We recite the pertinent facts and procedural history together. On January 31, 1998, defendant was charged with speeding, driving while intoxicated and possession of a switchblade under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d. When defendant appeared before the Mt. Olive Municipal Court on February 4, 1998, he was advised that the case was transferred to Superior Court because the weapon charge was an indictable offense.
Defendant first appeared in Superior Court on February 18, 1998. By December 7, 1998, the weapon charge was postponed and defendant was admitted into PTI. Pursuant to PTI, defendant began twelve months of supervised probation with urine testing and community service. Defendant successfully completed PTI and on February 4, 2000, the weapon charge was formally dismissed. Soon thereafter, defendant was notified to reappear in the Mt. Olive Municipal Court to answer the speeding and driving while intoxicated charges.
Defendant requested one adjournment on March 13, 2000, and the case was scheduled for trial on May 1, 2000. On May 25, 2000, defendant moved for the first time to dismiss the motor vehicle driving charges on speedy trial grounds. On September 18, 2000, Municipal Court Judge Philip J. Maenza denied defendant's speedy trial motion, and defendant conditionally pled guilty to driving while intoxicated, after the speeding charge was merged. The judge suspended defendant's driving privileges, fined and surcharged defendant, and stayed the entire sentence pending appeal to the Law Division.
On February 6, 2001, Judge N. Peter Conforti denied defendant's appeal, but remanded the case to Mt. Olive Municipal Court because defendant's guilty plea lacked a factual basis. For unknown reasons, Mt. Olive transferred the matter to Roxbury Municipal Court. On April 2, 2001, defendant once again conditionally pled guilty, this time before Judge Carl F. Wronko of Roxbury Municipal Court who again fined, surcharged and suspended defendant's driving privileges and stayed all penalties including the license suspension, pending appeal to this court. Defendant appeals to us from Roxbury Municipal Court.
Preliminarily, we note that defendant's appeal directly to the Appellate Division, without seeking our permission, was improper. R. 2:2-3(b). Technically, defendant was obligated to re-appeal to the Law Division, before appealing to us. R. 3:23-1 to -9. However, we have the Law Division's decision on defendant's speedy trial contention, and the State neither opposes nor has been handicapped by defendant's direct appeal. Consequently, we elect to decide the matter on the merits.
Defendant strongly argues that his constitutional right to a speedy trial was violated and, thus, the driving while intoxicated conviction must be reversed. Both parties agree that a flexible balancing test is used to assess speedy trial claims. State v. Douglas, 322 N.J. Super. 156, 170 (App. Div.), certif. denied, 162 N.J. 197 (1999). The factors balanced include (1) the length of the delay, (2) the reason(s) for the delay, (3) any assertion by the accused of speedy trial rights, and (4) any prejudice to the accused from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117-18 (1972); State v. Gallegan, 117 N.J. 345, 354-58 (1989). These four factors are also applied when defendant asserts a speedy trial claim arising from delay in a municipal court drunk driving prosecution. State v. Gallegan, supra, 117 N.J. at 355; State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999); State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990).
Judge Conforti weighed the four Barker v. Wingo factors and concluded that "when balanced against the fact that this defendant gets the benefit of having an indictable offense dismissed so he avoids the adverse consequences of a criminal history I'm not satisfied that these factors have been met." Defendant argues that the Law Division judge "erroneously" considered the benefit defendant derived from PTI, and asserts that this factor "has absolutely no place in the analysis of whether or not the Defendant's right to a speedy trial has been violated." We proceed to analyze the four ...