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State v. Zairo

June 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DALE ZAIRO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. 01-08-Y24.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 27, 2009

Before Judges Sapp-Peterson and Alvarez.

Nearly two and one-half years following his arrest for driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to provide a breath sample, N.J.S.A. 39:4-50.2, defendant pled guilty to the DWI offense.*fn1 He was sentenced to serve a 180-day jail term. The appropriate penalties and fines were also imposed, including a loss of his driving privileges for ten years. On appeal to the Law Division, defendant alleged that his plea should be vacated because the court failed to make the requisite inquiry to ensure that he understood the nature of the charges against him, the consequences of his guilty plea, and that there was an adequate factual basis. In addition, defendant claimed his constitutional right to a speedy trial was violated by the nearly three-year delay in prosecuting the matter. The Law Division judge rejected those arguments and entered the June 12, 2008 order denying the appeal.

On appeal, defendant raises the following points for our consideration:

POINT ONE

MR. ZAIRO'S PLEA WAS SUBSTANTIVELY AND PROCEDURALLY DEFECTIVE AND SHOULD BE VACATED UPON APPEAL.

POINT TWO

MR. ZAIRO'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS VIOLATED[,] THEREBY WARRANTING REVERSAL OF THE SUPERIOR COURT.

We agree that the municipal court judge failed to make the requisite inquiry to ensure that defendant's plea was fully knowing and voluntary, as the court is required to do both by court rule and case law. R. 7:6-2(a)(1); State v. Chung, 210 N.J. Super. 427, 431 (App. Div. 1986). In our view, however, this failure was harmless error. We also agree with defendant's claim, first raised in this appeal, that the record does not reflect defendant at any time being advised of his right to counsel, right to trial, and right to confront witnesses. Nonetheless, when evaluated under the plain error standard, Rule 2:10-2, we do not find these errors produced an unjust result. In addition, we do not agree that defendant's right to a speedy trial was violated. We therefore affirm.

The salient facts and procedural history pertinent to our discussion establish that defendant was arrested on the two charges on August 19, 2005 and attended his first scheduled court appearance on August 31, 2005. Shortly thereafter, on September 6, the matter was transferred for disposition to another municipality due to a conflict and a pending domestic violence matter.

Between September 2005 and January 14, 2008, the matter was adjourned more than twenty times. When the State sought to reschedule the trial on November 26, 2007, because of the illness of the arresting officer, defense counsel, for the first time, objected to the request, arguing that there had been over twenty-six postponements, with twenty-two of the adjournments being granted at the State's request. The court found the State's request "legitimate" and rescheduled the trial for December 17.

On that date, however, according to a chronology of the "chain of events" which was prepared by the Washington Borough Municipal Court, considered by the Law Division in defendant's de novo appeal, and included by both defendant and the State in their respective appellate appendices, the trial was adjourned once again, but this time at the request of defense counsel. The trial was rescheduled for January 14, 2008.

When the parties appeared on that date, defense counsel again moved to dismiss the charges on speedy trial grounds, arguing that defendant had no obligation to show he had been prejudiced by the numerous delays. Relying on State v. Farrell, 320 N.J. Super. 425, 451 (App. Div. 1999), defense counsel urged that even if defendant had requested "every" adjournment "up until the last one . . . when the State would not have been ready to go forward," the case should have been dismissed. The court rejected these arguments, concluding that the circumstances did not warrant dismissal and also noting that when a defendant requests an adjournment, it sometimes "throws off somebody else's schedule and those things just sometimes snowball."

After denying the motion, the court inquired of defense counsel whether its understanding that defendant intended to plead guilty "to a third [DWI] offense" was correct, to which defense counsel responded affirmatively. Defense counsel then questioned defendant surrounding the circumstances of his arrest, followed by a few questions from the court, none of which addressed defendant's understanding of the consequences of his plea or its voluntariness:

THE COURT: Okay, may I have a factual basis please?

[DEFENSE COUNSEL]: Yes, Judge. Mr. Zairo[,] on the night in question you were consuming alcohol?

[DEFENDANT]: Yeah.

[DEFENSE COUNSEL]: And on the night[,] you drank five beers?

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: And you understood that after drinking five beers, you should not have gotten ...


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