On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 05-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Defendant John R. Iskander appeals from a February 4, 2008, judgment of conviction of driving while intoxicated (DWI) on which a sentence of license revocation for ten years, ninety days inpatient and outpatient rehabilitation, ninety days community service, and various fines and penalties were imposed.
Defendant entered a conditional plea, preserving his right to appeal the denial of his requests for a speedy trial, a jury trial, and suppression of certain evidence. We reverse.
Because the issues on appeal have been limited to the speedy-trial and jury-trial issues, our discussion of the facts is limited to those bearing on these two issues. On August 28, 2003, Rutgers University Police Officer Matthew Ganzer charged defendant with various motor-vehicle violations, including his third DWI offense. Ganzer observed defendant traveling at a high rate of speed on Route 1 in New Brunswick. He followed defendant onto Ryders Lane, noting that the vehicle's turn signal was white. He stopped defendant and asked for his driver's credentials. After observing defendant's hands, eyes, and speech, and hearing his admission to drinking one beer, Ganzer had defendant recite the alphabet from C to T and perform a finger-dexterity test. This caused him to ask defendant to exit his vehicle and perform additional tests, which defendant refused, performing only the horizontal gaze nystagmus test. Ganzer formed an opinion that defendant was impaired based on the appearance of his eyes, smell, demeanor, and refusal to perform balance tests.
Defendant was summoned to appear on September 9, 2003. His attorney sent a letter of representation on September 4, 2003, in which counsel waived arraignment on his behalf and entered a not-guilty plea. He demanded trial by jury, advised the municipal court judge and State that he intended to move to suppress evidence, and requested discovery from the State. He also demanded a speedy trial pursuant to the Sixth Amendment of the United States Constitution and Article 1, paragraph 10, of the New Jersey Constitution. He asked to have the arraignment on September 9 cancelled and to be advised of the next court date.
Defendant's trial was scheduled for October 29, 2003, at which time the State was represented by counsel for Rutgers. It was not until that date that the State complied with defendant's discovery request, and defendant sought a two-week adjournment to have an opportunity to review the discovery provided. However, defendant's counsel on October 30, 2003, again demanded a copy of any videotapes or audio tapes and various other discovery that had not been supplied. The matter was again listed for trial, but not until March 17, 2004. The record does not disclose why the case was carried for four and one-half months. In the meantime, the State finally provided the videotape of the incident on January 6, 2004, but did not produce the balance of the discovery.
When the parties appeared on March 17, 2004, the North Brunswick Assistant Prosecutor advised the municipal judge that there had been a miscommunication between Rutgers and the township prosecutor about the discovery defendant requested. Both attorneys sought an adjournment until April 2004 because defense counsel would be out of the country until April 1, 2004. Ganzer was apparently not in court that day, and unbeknownst to the parties, he had been mobilized and was to ship out to Cuba on April 1, 2004. Upon returning to this country, defense counsel wrote to the municipal judge on April 7, 2004, asserting defendant's constitutional right to a speedy trial, citing State v. Gallegan, 117 N.J. 345, 355 (1989), and State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999).
A new trial date was eventually scheduled for June 9, 2004. This time, counsel for Rutgers represented the State. Defendant's attorney stated that he was ready to proceed with the trial. Counsel for the State, however, said that he sent a letter to the judge on April 1, 2004, asking to have the matter placed on the inactive list due to Ganzer's mobilization. He sought to have the matter carried until Ganzer's return in May 2005. Defendant objected that Ganzer was not the State's only witness and asked for dismissal of the charges, noting that the case had already run afoul of the sixty-day trial requirement for drunk-driving offenses. The State replied that it intended to rely primarily on Ganzer's testimony and requested a further, lengthy adjournment. The judge denied the motion to dismiss for lack of a speedy trial and adjourned the case, but did not set a new trial date from the bench because it was not his "practice" to "schedule cases." Indeed, no one scheduled a trial date for a very long time.
On June 16, 2004, counsel for Rutgers wrote to the assignment judge in Middlesex County apprising him of Ganzer's mobilization and the number of cases necessitating his appearance. He alerted the assignment judge to the invocation of speedy-trial rights and counsel's request that the matters be placed on the speedy-trial list. Counsel sought his guidance on what to do when police officers were called to active duty. The assignment judge responded that he would consider the matter and "get back to [counsel] shortly," but the record does not contain any further communication from him.
On September 20, 2004, defendant filed a formal written motion to either dismiss for failure to timely prosecute or to schedule a speedy trial, relying on the record and the brief submitted with the motion. An opposing certification from counsel for Rutgers asserted that defense counsel was granted an adjournment to permit him to review discovery, that there had been fruitless plea discussions in November 2003 and a subsequent request to list the matter for trial. He then averred that there had been a joint request for adjournment on March 17, 2004, to "enable the parties to procure their respective discovery," which the judge granted. He pointed out that on June 9, 2004, the judge denied defendant's motion for dismissal and adjourned the case, but denied the State's application to have it placed on the inactive list. He apprised the judge of his unsuccessful efforts to secure input on that issue from the assignment judge.
The judge did not rule on defendant's written motion for over one year and the case sat in limbo until January 13, 2006, when the case was finally relisted for a status conference. The judge advised that he did not have sufficient time to try the case and would have to set it down for a special session on February 10, 2006, a date when defense counsel was not available. Defense counsel pressed defendant's motion to dismiss, arguing that defendant had suffered prejudice from the inordinate delay, and that he had relocated, married, and fathered children in the meantime. He also argued that defendant did not have to show prejudice if the delay was long enough, citing Farrell, supra, 320 N.J. Super. 425, and sought dismissal, not an adjournment. The State opposed dismissal, arguing there were unique circumstances in this case. He admitted that Ganzer had returned from Cuba in May 2005. Defense counsel said that Ganzer's presence in New Jersey for eight months just highlighted the failure to prosecute in a timely fashion. Defense counsel admitted he learned late the previous fall that Ganzer had returned, but argued he had no legal obligation to request this matter be listed for trial, with which the judge agreed. Counsel for Rutgers replied that "Ganzer did inform [sic] that this summer he was well aware that this case was still pending and he, in fact, he notified our office who contacted this [c]court and got the case rolling around June."
The municipal judge denied the motion to dismiss, finding that "a lot" of the delay "was out of the control of any of the princip[al]s involved in this matter. And without the officer's availability of that extended period of time, not only did the case not get moved, but I think because of that it sort of added to the delay." He stated that the matter would be set down for a mutually convenient special session.
Defendant's municipal court trial commenced on March 3, 2006, some 921 days after the charges were issued. Testimony was taken from Ganzer, during which defendant moved to dismiss on probable-cause grounds. This motion was denied and Ganzer continued his testimony, which was then interrupted by a Miranda*fn1 motion during which defendant testified. Ruling on the suppression motion was reserved for briefing, Ganzer completed his testimony, and the case was continued. The judge allowed two months for briefs, although the attorneys sought only half that time. No date for the continuation of the trial was set, the judge remarking that ...