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State v. Zairo


June 30, 2009


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

Per curiam.


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:





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?


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


[DEFENSE COUNSEL]: And you understood that after drinking five beers, you should not have gotten behind the wheel of a vehicle?

You understand that[,] correct?


[DEFENSE COUNSEL]: And you did drive that night?


[DEFENSE COUNSEL]: Okay, and you know you shouldn't drive after you consume five beers?

[DEFENDANT]: Um[-]huh.



THE COURT: You were operating the motor vehicle under the influence of alcohol, is that correct?


THE COURT: And you understand that[,] correct?

[DEFENDANT]: Yes[,] sir.

THE COURT: All right.

The proceedings immediately moved into sentencing. The court sentenced defendant to a 180-day custodial term that was subject to reduction based upon the length of any in-patient program to which defendant was admitted. Additionally the court imposed the requisite fines, penalties, court costs, and ten-year loss of license.

Defendant filed a de novo appeal to the Law Division, claiming the plea that he entered was flawed. He also urged the reversal of the municipal judge's denial of his speedy trial motion. In a written opinion, the Law Division judge denied defendant's appeal. He first identified the factors articulated by the United States Supreme Court in Barker v. Wingo that he was required to consider in deciding the application: (1) the length of delay between arrest and sentencing; (2) the reasons for the delay; (3) whether defendant had asserted his right to a speedy trial; and (4) whether defendant suffered any prejudice as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117-18 (1972).

Applying those factors to the matter before him, the judge found the delay in prosecuting defendant was "considerably longer than the delay" in State v. Farrell, supra, at 448, where the court found that a 633-day delay, along with other factors, violated the defendant's right to a speedy trial. Id. at 452-53.

The court then analyzed the reasons for the delay:

[T]he Defendant in this case was responsible for delays on at least two occasions. He was not prepared for trial like the Defendant in Farrell. Upon examination of the case history detailing the reasons for the twenty-two adjournments, twelve were not attributable to the Defendant or his attorney. Of those twelve, eight were due to the [S]tate's witness or police officer unavailability. Two adjournments resulted from conflicts of interest for the prosecutor and judge, two for unknown reasons, and five from case transferals. Of the remaining adjournments, eight were attributable to Defendant or his attorney.

On two of those occasions, Defendant requested an adjournment so he could secure counsel.

Next, the court examined when defendant asserted his right to a speedy trial:

In this case, Defendant asserted his right to [a] speedy trial twice: on November 26, 2007, and immediately prior to pleading guilty on January 14, 2008. That the Defendant asserted his right to a speedy trial is undisputed. However, he did not assert it with any regularity, and he did not assert it until almost two years after his arrest.

In analyzing the prejudice factor, the court found that any prejudice to defendant occasioned by the delays was "minimal." The court ultimately concluded that although the delay was longer than in Farrell, "the reasons for the delay were valid[,]" defendant "was partly responsible for the delay," and defendant had not suffered sufficient prejudice to warrant the relief sought.

With respect to the guilty plea, the court found that defendant signed a form acknowledging his understanding of the charges against him, the consequences of his plea, and the voluntariness of the plea. The court found further:

Concerning whether the Defendant understood his constitutional rights, the record reflects that the Court inquired of Defendant's attorney as to whether he had advised Defendant of the consequences of pleading guilty. Defense counsel responded affirmatively. In both [State v.] Smullen, [118 N.J. 408, 418 (1990),] and [State v.] Huntley, [129 N.J. Super. 13, 16-18 (App. Div.), certif. denied, 66 N.J. 312 (1974),] the Supreme Court noted that the trial judge's colloquy with defense counsel concerning the Defendant's understanding of his constitutional rights satisfied [Rule] 3:9-2. In both of those cases, as here, defense counsel conferred with the Defendant off the record concerning which constitutional rights would be waived by pleading guilty. The trial judge then inquired of [d]efense counsel on the record if such conversation took place. It is clear from the record that Defendant understood the ramifications of pleading guilty, and that he knowingly and voluntarily did so.

The court concluded that defendant failed to meet the heavy burden of satisfying the court "that a manifest injustice would occur by holding him to his guilty plea."


A defendant in a prosecution for driving while under the influence and refusal to submit to a breathalyzer test has a constitutional right to a speedy trial. State v. Hulsizer, 42 N.J. Super. 224, 228 (App. Div. 1956) (drunken driving prosecution). Hence, the four-part test to determine whether a defendant has been denied his constitutional right to a speedy trial, as articulated in Barker, applies to proceedings in municipal court. See Farrell, supra, 320 N.J. Super. at 446. Thus, in resolving dismissal motions based upon speedy trial grounds, a court must consider, as the Law Division judge did here, (1) the length of delay, (2) the reason for the delay, (3) whether and when defendant asserted his right to a speedy trial, and (4) prejudice to the defendant. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed. at 117-18.

The Law Division considered these factors and found that defendant contributed to the delay, did not assert his right to a speedy trial until more than two years after he was charged with the offenses, and had not demonstrated any prejudice occasioned by the delay. These findings are supported by the record.

Part of the delay was occasioned by the fact that there was an accompanying domestic violence matter that required the transfer, back and forth between municipalities, of the DWI matter due to a conflict involving a co-defendant in a pending domestic violence matter. Once the domestic violence matter was resolved, the matter was transferred back to the Washington Township Municipal Court, where it was again transferred due to another conflict of interest in connection with the State's witness, who was also the co-defendant in the earlier domestic violence proceeding. The matter was also adjourned on a number of occasions due to the illness of the arresting officer, who underwent surgery for a torn meniscus, as well as the officer's unavailability on other occasions. Additionally, there were adjournments of the matter due to the illness of defendant's attorney. That attorney was eventually discharged by defendant, who then retained new counsel. His new attorney sought adjournments because of his unavailability and also because of calendar conflicts. Another adjournment resulted when the Lopatcong judge, who was assigned to hear the case when it was transferred to that municipality, was alerted by defendant's attorney that defendant had appeared before him in connection with another trial during which the judge heard a "substantial amount of discussion concerning Mr. Zairo's activities on the date in question . . . ." The judge determined that out of an abundance of caution, he would disqualify himself from hearing the case.

We agree with the Law Division judge that while the delays were "numerous," most were unavoidable and that defendant contributed to some of the delays. Moreover, defendant did not assert his right to a speedy trial for more than two years. "While an accused has no duty to bring himself or herself to trial, it is difficult to prevail on a speedy trial claim without a timely assertion of rights." State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002) (citing State v. Douglas, 322 N.J. Super. 156, 171 (App. Div.), certif. denied, 162 N.J. 197 (1999)). Once defendant asserted the right, the court scheduled the matter for a date certain the following month. The adjournment of the trial at that time, however, was at the request of his attorney. As such, that adjournment cannot be charged against the State. Farrell, supra, 320 N.J. Super. at 446 ("Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation." (quoting State v. Gallegan, 117 N.J. 345, 355 (1989))). The matter proceeded to trial one month later, at which time the not guilty plea was retracted and defendant pled guilty to DWI.

Finally, as to the prejudice resulting from the numerous delays, prejudice occasioned by the delay is one factor a court must consider in the weighing process, and that prejudice may include, loss of employment opportunities, humiliation, and anxiety, as defendant alleged before the Law Division. Fulford, supra, 349 N.J. Super. at 194. Moreover, "if the other factors [in the Barker four-part test] weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant." Farrell, supra, 320 N.J. Super. at 446 (citing State v. Smith, 131 N.J. Super. 354, 368 n. 2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)).

The Law Division judge found that the prejudice to defendant was "minimal" and, in part, caused by defendant's adjournment requests as well. Even assuming the court erred in minimizing the prejudice defendant experienced, particularly as to the loss of employment opportunities, proof of this prejudice does not, in our view, warrant the setting aside of the guilty plea. Defendant has not asserted any prejudice in preparing a defense that influenced the retraction of his not guilty plea and the entry of the guilty plea.

When balanced against the remaining Barker factors, though numerous, we are satisfied the vast majority of delays were reasonably explained and justified. State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983). There is no dispute that once defendant asserted the right to a speedy trial, the court scheduled the matter for trial a short time later. That date was adjourned at the request of defendant's attorney, but the matter proceeded to trial one month later. Consequently, on this record there was no "denial of fundamental fairness . . . so great" as to cripple the "integrity of the judicial process" and to require that defendant's guilty plea be vacated. Farrell, supra, 320 N.J. Super. at 453.


"'[I]t is well-settled that a plea must be entered into voluntarily and intelligently.'" State v. Simon, 161 N.J. 416, 443 (1999) (citing State v. Crawley, 149 N.J. 310, 318 (1997) (citations omitted)). Rule 3:9-2 provides in relevant part:

The court . . . shall not accept [a guilty] plea without first questioning the defendant personally . . . and determining by inquiry of the defendant . . . that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

The requirement that the court personally address the defendant before accepting a guilty plea is designed to assure that the defendant understands the charges, that a factual basis for the plea exists and that the plea is voluntary. State v. Barboza, 115 N.J. 415, 420-21 (1989); see also State v. Smullen, 118 N.J. 408, 414-15 (1990). This requirement also protects the State from a defendant's subsequent attempt to retract his plea on the ground that he is innocent or did not understand the consequences of his plea or that the prosecutor or his own attorney improperly induced him into pleading guilty. Barboza, supra, 115 N.J. at 421; see 31 N.J. Practice, Criminal Practice and Procedure §§ 420-427 (Leonard N. Arnold) (rev. 2d ed. 1980). Nonetheless, "[a] guilty plea is not to be set aside whenever the trial court procedures are less than perfect." State v. Taylor, 80 N.J. 353, 363 (1979). The relevant analysis requires a determination whether defendant has been "prejudiced by the omission[s]." Ibid. The "touchstone" in this analysis is "basic fairness to the defendant." Id. at 364. A defendant's understanding of the nature of the charges, the consequences of a guilty plea and its voluntariness should be "determined only by considering all of the relevant circumstances surrounding it." Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed. 2d 747, 757 (1976).

Although the municipal court judge did not personally address defendant as to his understanding of the charges, the consequences of his guilty plea and its voluntariness, there was no prejudice to defendant caused by the municipal court judge's failure to fully adhere to the requirements of Rule 3:9-2. Defendant evidenced his understanding of the charges, the consequences of his plea, and the voluntariness of the plea through his signatures on two documents. The first such document was entitled "Central Warren Municipal Court [-] Request to Approve Plea Agreement." The key language on that document appearing above defendant's signature states:

I understand the nature of the amended charge(s) against me and the consequences of my guilty plea. I understand and agree voluntarily to the terms of the plea agreement set forth above.

I further understand that if the judge does not accept my guilty plea or agree with the recommended sentence, I can withdraw it and plead not guilty.

The second document bearing defendant's signature is the "Notification of Penalties for Subsequent DWI or Driving on the Revoked List Convictions." The language above defendant's signature relevant to our discussion reads as follows:

Penalties if Convicted Again of DWI . . . .

If you are convicted for a third or subsequent time of DWI, you will be subject to the following penalties: 1) you will be fined $1000; and 2) you will be imprisoned for 180 days, except that the court may order that you serve up to 90 days of that sentence participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center, and 3) your driver's license will be suspended for 10 years. If you are convicted for a third or subsequent time of DWI . . . you will be assessed at least $325 in surcharges and assessments. Further, the judge must also revoke your vehicle registration(s) for 10 years or order installation of an ignition interlock device on your vehicle(s) for one to three years.

Penalties if Convicted of Driving on the Revoked List

As part of your sentence for DWI, your driver's license has been revoked. If you continue to drive, you will be subject to penalties for driving on the revoked list under N.J.S.A. 39:3-40. You will also be subject to the following additional penalties: 1) you will be fined $500; and 2) your driver's license will be suspended for an additional one to two years; and 3) you will be imprisoned from 10 to 90 days.

In addition to this written notice, I have informed you of these consequences orally in open court.


I, DALE A. ZAIRO (defendant) have received this written notice of the penalties for subsequent convictions of DWI and driving while on the revoked list. I have also been informed of these consequences orally by the judge in open court.

These declarations are presumed to be truthful. Simon, supra, 161 N.J. at 444 (citing Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed. 2d 136, 147 (1977)). Consequently, on this record, our conclusion does not differ from that of the Law Division judge that defendant entered his guilty plea knowingly and voluntarily.

We may not reverse the decision of a trial court denying a request to withdraw a guilty plea unless we find an abuse of discretion rendering that court's decision clearly erroneous. See Simon, supra, 161 N.J. at 444. No such abuse is evident from this record.

Finally, for the first time in this appeal defendant's attorney contends that none of the transcripts of the proceedings "reveal any inquiry by the Municipal Court of the consequences of Mr. Zairo's plea. At no point, was Mr. Zairo apprised of his rights, including, but not limited to, his right to a trial, his right to confront witnesses, his right to put forth witnesses of his own, and the loss of his right to appeal on the merits." Because these claims were never raised before the Law Division, we review these contentions under a plain error standard, namely, whether the failure to apprise defendant of these rights was so egregious "as to have been clearly capable of producing an unjust result." R. 2:10-2. Reviewed under this standard, we are convinced that no such unjust result occurred here.

First, we observe that although defendant included transcripts from some of the proceedings before the court, notably absent is a transcript of his first appearance before the municipal court on August 31, 2005. Rule 2:5-3(a) requires the preparation and filing of a verbatim transcript and, in the absence thereof, subsection (f) of the same rule requires the filing of a Statement of Proceedings in Lieu of Transcript. That was not done here.

Second, even without the benefit of a complete record with which to engage in meaningful appellate review, it is clear that defendant was aware of his right to counsel because the transcripts provided indicate that he was represented by retained counsel throughout the proceedings. It is also apparent that defendant was well aware of his right to trial and, in June 2007, through counsel, advised the court that he was rejecting the plea bargain. He appeared for trial with his attorney on November 26, 2007. We are therefore convinced that defendant's contentions are all without merit.


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