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State v. Tsetsekas

December 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRISTOS E. TSETSEKAS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-009-08-08.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 27, 2009

Before Judges Carchman, Lihotz and Ashrafi.

Defendant Christos E. Tsetsekas appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after trial de novo in the Law Division. As a consequence of his conviction, defendant's driving privileges were suspended for three months, he was assessed applicable fines and costs and ordered to attend twelve hours of education at the Intoxicated Driver Resource Center. On appeal, defendant raises these issues:

POINT ONE

THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT'S RIGHT TO A SPEEDY TRIAL WAS NO[T] VIOLATED.

POINT TWO

THE LOWER COURT ERRED IN FINDING THAT THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH PROBABLE CAUSE.

POINT THREE

THE LOWER COURT ERRED IN FINDING THAT THE BREATHALYZER RESULTS WERE PROPERLY ADMITTED INTO EVIDENCE.

We have considered these arguments in light of the record and applicable legal standards. Under the facts of this case, we conclude the extensive delay in adjudicating this matter, caused by the State's repeated lapses in preparation, infringed upon defendant's due process rights such that his conviction must be reversed and the charge dismissed. Consequently, we need not address the remaining points raised on appeal.

We summarize the facts relevant to our review. On May 8, 2007, defendant was involved in a single-car accident while traveling on Route 80 in Elmwood Park, when his wheel became dislodged. Trooper Nicholas Rubino arrived at the scene. Based upon Trooper Rubino's observations of the condition of defendant's vehicle, his physical appearance and unsatisfactory performance on field sobriety tests, Rubino arrested defendant. Rubino read defendant his Miranda*fn1 rights and transported him to the Totowa police station where Sergeant Michael Watson, a certified breathalyzer operator, administered two breathalyzer tests. Defendant registered a .09 blood alcohol level on each test. Accordingly, Trooper Rubino issued a summons charging defendant with DWI.

Defendant first appeared in the Elmwood Park Municipal Court on May 15, 2007. He entered a plea of not guilty and trial was scheduled for July 17, 2007. On that date, defendant appeared with his attorney. However, the State requested an adjournment as the prosecutor had just responded to defendant's discovery requests that evening. In relisting the matter for trial on August 14, 2007, the municipal court judge stated: "That's going to be a relatively firm date since this now is beyond our 60-day guideline. So the next date you get will be for trial. So make sure you're ready."*fn2

On the relisted trial date, the State revealed it had yet to provide defendant with a copy of the patrol car videotape of his stop and arrest. The videotape was not included in the initial discovery and, although requested, had not been sent by the State Police. The prosecutor advised he needed "[t]hirty [] -- maybe 60 days" to obtain the videotape. The court suggested the request be expedited because "it's beyond [] our 60-day guidelines."

Subsequent trial dates on September 14 and October 9 were adjourned because the videotape had not been received. Defendant and counsel next appeared on November 13, 2007. The prosecutor again sought a continuance. He explained the in-car videotape had arrived the prior week, but "the State ha[d] not even had an opportunity to view it[.]" Also, because the parties had been discussing a possible plea agreement, the prosecutor had not subpoenaed Trooper Rubino, who he learned was not available that evening. Finally, the State acknowledged the test certificate for the breathalyzer had not been produced. In making his continuance request, the prosecutor sought a special trial listing.

Defense counsel objected, stating, the fact of the matter is this is the fourth time that we've been here. We also have an expert who's coming up from South Jersey. I want to make certain that when we come the next time, that we are scheduled. That we do, in fact, try the case. I . . . request that the [c]court list [th]is as a try or dismiss matter.

The court rejected defendant's request even though the matter was the oldest case on its docket. The judge advised the prosecutor, "we are going to start it next time." The case was ...


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