On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0879.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 1, 2009
Before Judges Messano and Alvarez.
By leave granted, defendant Michael J. Siriani appeals from the denial of his motion to dismiss an indictment returned by the Burlington County grand jury charging him with two robberies in the first-degree.*fn1 Defendant contends, as he did below, that he was denied his "Sixth Amendment right to a speedy trial." The State counters by arguing the motion judge properly denied defendant's application. We have considered these arguments in light of the record and applicable legal standards. We affirm.
For purposes of the appeal, the facts and procedural history are essentially undisputed. In the early morning hours of December 27, 2006, two Wawa convenience stores, one in Lumberton Township, the other, in nearby Springfield Township, were robbed. In both instances, the perpetrator demanded money from the cashier, proceeded to count down the time he had given the cashier to tender the cash, and threatened the use of, but never revealed, a gun. Although the record reveals that neither victim was asked to subsequently identify the perpetrator by photographic array or line-up, police investigation led to defendant's arrest on December 29.
Apparently, co-defendant Vincent Allen told police that defendant was the robber in the Lumberton incident. Surveillance videotape from both stores were viewed by police, and the investigating officer testified before the grand jury that defendant was the robber in both instances. Further investigation additionally revealed other facts linking defendant to both crimes, including descriptions of his clothing, the manner in which both robberies occurred, and the fact that a carton of Newport cigarettes taken from the first convenience store was found in Allen's vehicle.
Defendant has remained incarcerated since his arrest, and was indicted on May 31, 2007. Apparently, in either November or December 2008, defendant wrote to the vicinage assignment judge "assert[ing] his right to a speedy trial[.]" On April 7, 2009, defendant's motion to dismiss was orally argued before the motion judge.*fn2 Defendant argued there was no excuse for the delay since the case was relatively simple, lacked any forensic evidence, and could be routinely presented to a jury. He noted that his actions had caused no delay. He further argued that delay was presumptively prejudicial as a "matter of law."
The State argued that defendant was charged with two serious crimes that were both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and, based upon defendant's "prior history," he faced a potential life sentence. The State argued that the delay was caused by something over "which it had no control[.]"
This reference was clarified by the judge himself. First, he noted that he had been diagnosed with lung cancer and was receiving treatments since defendant's indictment. However, the judge noted that was not the primary reason for the delay, which was, instead, occasioned "by the number of cases" assigned to his calendar. He concluded that "the Court's calendar" was not attributable to any fault of the State. After considering relevant federal and state precedent, the judge denied defendant's motion to dismiss on speedy trial grounds. He set a trial date for December 1, 2009.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972), the United State Supreme Court considered the Sixth Amendment's guarantee of a speedy trial to all criminal defendants. The Court adopted a "balancing test" that required consideration of four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117.
Our Supreme Court adopted the Barker test in State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). Our Court Rules permit a defendant to seek dismissal of an indictment, and further permit the court to do so sua sponte, when "there is unreasonable delay in the disposition of an indictment[.]" R. 3:25-3. Determination of what is an "unreasonable" delay rests upon "balancing of interests... on an ad hoc basis" considering the idiosyncratic facts of each case. Szima, supra, 70 N.J. at 201. "[N]one of the four factors [is] [ ] a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they [are] to be treated as related factors to be considered with such other circumstances as may be relevant." Ibid.
In this case, the judge noted that the twenty-two month delay between defendant's indictment and the hearing on his motion was not extraordinary. In Szima, the Court noted that a twenty-two month delay between complaint and indictment did not in and of itself merit dismissal. Id. at 202. However, unlike the defendant in Szima, defendant has been incarcerated since his arrest, and, assuming he does not make bail, will remain in custody for thirty-six months before he is tried. The delay is not one we condone, but, in and of itself, does not warrant dismissal.
Defendant did not assert his right to a speedy trial until November or December 2008, some two years after his arrest, and eighteen or nineteen months after his indictment. The application was formally heard within months thereafter. In the balancing of interests, defendant's delay mitigates against the relief sought. See Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed. 2d at 118 (noting "the failure ...