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State v. Iskander


January 13, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 05-2007.

Per curiam.


Argued November 5, 2009

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 counsel for Rutgers would "be consulted on availability based upon the nature of . . . this being North Brunswick and a Rutgers case. As well as you, detective Reagan."

The next date did not happen until ten months later on January 30, 2007. By that time, 1254 days had elapsed since defendant was charged. He pled guilty to DWI in violation of N.J.S.A. 39:4-50--approximately three and one-half years from the date defendant was charged. The guilty plea was conditioned on defendant's right to appeal the denial of the speedy-trial motion, the denial of the request for a jury trial, and the denial of the motion to suppress.

Defendant appealed the municipal court decision to the Law Division, alleging violations of his right to a speedy trial and his right to a jury trial. Counsel argued the appeal on August 10, 2007, and the Law Division judge placed his decision on the record on September 7, 2007, but agreed to consider Farrell, supra, 320 N.J. Super. 425, before entering a judgment of conviction. The judge issued a written decision on February 4, 2008. He denied defendant's municipal appeal and found that although "the delay was substantial in length . . . , there were justifiable reasons for the delay, the defendant did not appropriately assert his right, and the defendant suffered no prejudice." Furthermore, he found that the case law did not support defendant's arguments that he was entitled to a jury trial. However, it was not until December 17, 2008, that the judge imposed the same sentence as that imposed by the municipal judge. This appeal followed.

Defendant presents the following issues for our consideration:


A. Factor 1: Length of Delay. The Extraordinarily Long Delay of 1,254 Days Here Weighs Heavily in Finding that Defendant's Right to a Speedy Trial Was Violated Here.

B. Factor 2: Reasons for Delay. Despite the Officer's Military Service, the State's Failure to Timely and Diligently Pursue Prosecution of the Defendant Violated His Right to a Speedy Trial.

C. Factor 3: Asserting the Right. Defendant Did Not Acquiesce to Delay but Rather Asserted His Right to a Speedy Trial Frequently, Conspicuously, and Appropriately.

D. Factor 4: Prejudice to Defendant. Even in the Absence of Specifically Identifiable Prejudice, and Even in the Face of Some Collateral Benefits, Delay Here Was So Prejudicial, Excessive, and Egregious as to Warrant Dismissal.


Because the facts relevant to the delay are undisputed and neither judge was required to make any credibility determinations, the issue presented is purely a question of law, that is, whether the Law Division judge erred in applying the law to the facts.

Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990).

[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]

See also State v. May, 362 N.J. Super. 572, 600 (App. Div. 2003) ("The trial court[] did not err in its consideration and application of the four Barker factors in denying defendant's motion to dismiss the indictment on speedy-trial grounds."). Thus, our review is plenary.

The Sixth Amendment guarantees the accused the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed. 2d 101, 108 (1972). Because it is "impossible to determine with precision when the right has been denied," the Barker Court rejected an inflexible approach in evaluating alleged violations of a defendant's right to a speedy trial. Id. at 521, 529, 92 S.Ct. at 2187, 2191, 33 L.Ed. 2d at 112, 115. Rather, the Court imposed a flexible balancing test, which weighs the conduct of both the prosecution and the defendant. Id. at 530, 92 S.Ct. at 2191-92, 33 L.Ed. 2d at 116-17. This balancing test assesses four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid., 92 S.Ct. at 2192, 33 L.Ed. 2d at 117. None of the factors is dispositive, but instead the factors "must be considered together with such other circumstances as may be relevant." Id. at 533, 92 S.Ct. at 2193, 33 L.Ed. 2d at 118.

Our Supreme Court reviewed the history of a defendant's right to a speedy trial in New Jersey under Article I, paragraph 10, of the New Jersey Constitution in State v. Szima, 70 N.J. 196, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). The Court recognized that the federal right to a speedy trial had been found fundamental in 1967 and that the dimensions of this right were delineated in 1972 by the Barker Court. Id. at 200. In adopting that paradigm, it noted that "[t]he proper approach suggested by the Supreme Court was an ad hoc balancing test in which the conduct of both the prosecution and the defendant are weighed." Id. at 200-01. It observed that the Barker Court "regarded none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Id. at 201 (emphasis added). It "recognize[d] that application of a balancing of interests test must be on an ad hoc basis and necessarily involves subjective reaction to the balancing of circumstances." Ibid.

We must consider defendant's speedy-trial rights in the special context of municipal DWI prosecutions. On July 26, 1984, Chief Justice Wilentz issued Administrative Directive #1- 84, Directive on Statewide DWI Backlog Reduction, in which he stated:

I recognize that a number of conditions, in addition to increased filings, have combined to cause a backlog, including challenges to the reliability of breathalyzers. However, our duty is to dispose of cases swiftly and fairly, within reasonable time standards. We must and will meet that challenge.

The Supreme Court has, therefore, decided as a matter of policy that complaints charging offenses under N.J.S.A. 39:4-50 . . . and N.J.S.A. 39:4-50a . . . must be disposed of within 60 days of filing. This is consistent with the standard suggested by all judges who attended the Annual Conference of Municipal Court Judges in October 1983. It shall apply to all but exceptional cases.

I want to note that the 60 day standard for DWI cases, established in this Directive, is a goal. Therefore, it does not replace the traditional guidelines established through case law for dismissals based on lack of a speedy trial. You should now consider and begin to implement management strategies designed to meet the 60 day standard for new DWI cases. Techniques such as arraignment and scheduling soon after complaint filing, expedited identification of defense counsel, pre-trial conferences and scheduled trial dates within 45 days should be considered in this context. [Id. at 1.]

Although Chief Justice Wilentz was careful to note that the sixty-day standard did not "replace the traditional guidelines established through case law for dismissals based on lack of a speedy trial," it nonetheless must inform the assessment of the length of the delay. This is so because the significance of the length of delay will depend upon the factual circumstances of the particular case, Barker, supra, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117, including the nature of the proceedings.

For example, in Farrell, supra, 320 N.J. Super. at 428, an appeal from a DWI conviction, we found that "663 days from the issuance of the summonses through thirteen non-continuous, widely-spaced court sessions" amounted to a violation of the defendant's right to a speedy trial. There, as here, the defendant's counsel entered his appearance and a not-guilty plea, filed notice of several motions, made discovery requests, and asserted the defendant's constitutional right to a speedy trial. Ibid. Three weeks later, he acknowledged receipt of some discovery and requested other, missing discovery. Ibid. The next day, he filed a brief in support of his motions. Ibid. "An inordinate number of continuances and lengthy adjournments then ensued." Ibid. Trial did not actually begin until ten months after the defendant was charged. Id. at 428, 433. It was then carried for three months; was adjourned for six weeks, at which point the defendant again asserted his right to a speedy trial; then adjourned again until July 10, 1996--eighteen months after the defendant was charged. Id. at 436-37. At that point it was adjourned again to September 11, 1996. Id. at 439. On that date, the trooper was not available and the prosecutor sought an adjournment, the defendant renewed his motion to dismiss, and the case was adjourned again and again, id. at 439-41, until it was tried to a conclusion on November 13, 1996, id. at 443-44. The defendant continued throughout this time to press his right to a speedy trial.

Very recently, in State v. Tsetsekas, ___ N.J. Super. ___ (App. Div. 2009) (slip op. at 2), we again considered the delay in a DWI conviction. There, the defendant was arrested on May 8, 2007, and charged with DWI. Id. at 3. He first appeared in court on May 15, 2007, entered a plea of not guilty, and was scheduled for trial on July 17, 2007. Ibid. At that time, the State requested an adjournment because, as here, it had just provided the defendant with discovery. Ibid. The matter was relisted for August 14, 2007, when the State revealed it had not provided the videotape. Ibid. Multiple adjournments were requested by the State over the next four months when on December 18, 2007, the State represented it had not called its witnesses. Id. at 3-5. The defendant sought a speedy-trial dismissal, which the judge denied, and the trial finally commenced at 11:00 p.m. when one of the troopers arrived. Id. at 6. The trial was scheduled to continue on March 5, 2008, but the State again sought an adjournment because the troopers were not available. Id. at 7. The defendant renewed his motion to dismiss, and the judge again denied the motion. Ibid. On April 16, 2008, almost a year after the defendant's arrest, the State concluded its presentation of evidence and the defense presented its case. Ibid. The defendant was convicted of DWI and appealed. Ibid. The Law Division denied the defendant's speedy-trial motion and affirmed the conviction. Id. at 7-8.

The Law Division judge measured the length of the delay against the delay in Farrell and concluded that the delay in Tsetsekas was not excessive. Id. at 13. We rejected that approach and held that "no set length of time . . . fixes the point at which delay is excessive." Id. at 13-14. We pointed out that "[t]he first step in analyzing the facts requires a court to remember" the Supreme Court's policy on DWI dispositions. Id. at 14 (quoting Farrell, supra, 320 N.J. Super. at 446-47). We observed that the 344-day dispositional period was "more than five times the stated objective." Ibid. We concluded that amount of delay was excessive. Ibid.

We have, however, on separate occasions concluded that delays in a DWI trial and a driving-under-the-influence (DUI) trial were not excessive. State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006) (rejecting "defendant's contention that he was deprived of his constitutional right to a speedy trial based on the nearly five months that elapsed between his arrest and the beginning of his trial"), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); State v. Prickett, 240 N.J. Super. 139, 148 (App. Div. 1990) (affirming denial of speedy-trial motion in a DUI trial held approximately six months after arrest).

In the context of a municipal DWI trial, a delay of 1254 days--almost three and one-half years--is clearly excessive. It was twenty-one times the sixty-day target for DWI trials. That delay, however, does not end the inquiry, as we must next consider the second Barker factor, the reasons for the delay.

The Barker Court suggested that a "deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government." Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117. On the other hand, a valid reason for the delay, such as the absence of a witness, will be considered justifiable and excuse the delay. Ibid. Similarly, although more neutral and given less weight, "delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant," for it is the ultimate responsibility of the government to bring the defendant to court. Farrell, supra, 320 N.J. Super. at 451 (citing Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117). Finally, delays attributable to the defendant "would not weigh in favor of finding a speedy trial violation." Gallegan, supra, 117 N.J. at 355.

Here, there is no suggestion that there was any "deliberate attempt to delay the trial in order to hamper the defense." Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117. However, the bulk of the delays were attributable to the municipal court judge, his staff, and the prosecutor. Defendant's first trial date, October 29, 2003, had to be adjourned because the prosecutor did not provide defendant with the discovery he requested on September 4, 2003, until the date set for trial. Then, the court adjourned the case to March 17, 2004--more than six months after defendant was charged--even though the sixty-day period expired on October 27, 2003. Despite the expiration of the period of time we found not violative of a defendant's constitutional right to a speedy trial,*fn2 the prosecutor still did not provide the entire discovery requested as of the new trial date, necessitating another adjournment. Ganzer then left for Cuba on April 1, 2004, before the matter could be relisted.

Obviously, the duration of Ganzer's unavailability cannot be laid at the feet of the State. See State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983) (finding the "unavoidable absence" of a police witness due to service in the National Guard a "reasonably explained and justified" reason for a delay in proceedings). However, after Ganzer returned in May 2005, he apparently contacted the prosecutor promptly to advise him of his return, and the prosecutor contacted the court in June 2005 to have the matter relisted. Yet, the record is silent as to precisely what the prosecutor did to secure a new trial date, when precisely he did that, and how often he did so. What we do know is that it was not until January 13, 2006, that the case was listed--not for trial, but for a status conference. Thus, a six-month delay ensued from the inaction of the State in addition to the delays attributable to the prosecutor's failure to timely provide discovery and the court's lackadaisical scheduling.

Despite hearing argument that day on defendant's speedy-trial motion, which had been pending for sixteen months, and denying it, neither the judge, who did not "schedule cases," nor his staff listed the matter for trial until March 3, 2006--921 days after defendant was charged. That, however, was not the end of the extraordinary delays. After taking some testimony from Ganzer, defendant moved to dismiss on probable-cause grounds, the judge reserved decision on defendant's suppression motion, examination of Ganzer continued, and the case was continued. At that point, the judge gave the lawyers an extraordinary two months to file briefs on the issues, and continued the trial without date. The trial did not resume until January 30, 2007. Thus, the State was responsible for nine additional months of delay after March 17, 2006. In all, the State was responsible for almost two and one-half years of delay in prosecuting this action to conclusion.

The third Barker factor, the defendant's assertion of his right to a speedy trial, "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed. 2d at 117. The strength of the defendant's efforts are closely related to the other Barker factors. Id. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117; see e.g., Farrell, supra, 320 N.J. Super. at 451-52 (finding in favor of the defendant who, given the "excessive" delays, invoked his right to a speedy trial at the outset and on eight other occasions). At the same time, the defendant's "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed. 2d at 118.

Here, defendant repeatedly asserted his right to a speedy trial. He placed the prosecutor on notice only a few days after he was charged that he would move to vindicate his speedy-trial rights. He asserted those rights on April 7, 2004, upon learning that Ganzer had been mobilized. He sought a dismissal on those grounds on June 9, 2004. When it was denied, he filed a formal motion for dismissal on September 20, 2004. He pressed his motion on January 13, 2006, and it was again denied. Defendant certainly assiduously pressed his constitutional right to a speedy trial and this weighs heavily in favor of dismissal.

The final Barker factor is the prejudice to the defendant caused by the delay. Ibid. The Barker Court identified three interests that the right to a speedy trial protects: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. Ibid. Moreover, prejudice can be found "from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." State v. Smith, 131 N.J. Super. 354, 367-68 n.2 (App. Div. 1974), aff'd, 70 N.J. 213 (1976).

Here, defendant has not been incarcerated pretrial and there is no suggestion that his defense has been impaired as a result of the delay. He does urge, however, that "given the passage of time, prejudice can be inferred generally and specifically, given the many changes in [defendant's] life as this matter dragged on." While awaiting prosecution, he had to decide whether to relocate, whether to marry, whether to have children. Although decisions such as these are generally happy ones, they certainly can be worrisome when facing a third DWI conviction. Would he lose his job if he could not drive for ten years? How would he be able to support his family if he had children? Would his marriage survive the stresses of incarceration and immobility? In Farrell we found the prosecution's clear inattention to its responsibilities along with the municipal court's patent failure to prepare itself to try the matter expedi[ti]ously and shepherd it to resolution efficiently . . . so egregious that no showing of prejudice is required in order for this defendant to succeed on his argument that, in fundamental fairness terms, he was denied his adequately asserted right to a speedy trial.

[Farrell, supra, 320 N.J. Super. at 452-53.]

The delay there was 663 days; here it was even longer. We see no basis for distinguishing the facts in Farrell and are persuaded that the result should be the same. Although some showing of prejudice has been made, none was required. As a result, it was error to deny defendant's speedy-trial motion because "the denial of fundamental fairness was so great, and the integrity of the judicial process so crippled, as to require that the conviction[] be vacated." Id. at 453.

In light of our disposition of the speedy-trial issue, defendant's claim that he was entitled to a jury trial is moot.

Reversed and remanded for vacation of the judgment of conviction.

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