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State v. Pomento

March 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT POMENTO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-099.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

After his speedy trial motion was denied in the municipal court, defendant Robert Pomento entered a conditional plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, and failure to report an accident, N.J.S.A. 39:4-130, for which he received a three-month driver's license suspension and was assessed fines and costs. He appealed to the Law Division on the limited issue of whether his right to a speedy trial had been violated by the 405-day delay between his arrest and adjudication. The Law Division judge found no constitutional deprivation and re-imposed defendant's municipal court sentence. Defendant appeals, and we affirm.

On February 11, 2008, defendant was arrested and issued summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-50; failing to report an accident, N.J.S.A. 39:4-130; lack of insurance, N.J.S.A. 39:6B-2; and improper backing, N.J.S.A. 39:4-127.*fn1 Ten days later, on February 21, 2008, defense counsel requested discovery, including an "Operator's Certificate" for the person administering the Alcotest to defendant, and "[a] copy of all videotapes of the Defendant's stop and arrest, as well as, all audiotapes of communications between the dispatcher, any officers/troopers and/or any third parties involved in this matter." That same day, counsel appeared on defendant's behalf at the Morristown Municipal Court, entered a plea of not guilty, and made a formal request for discovery.

The municipal prosecutor provided discovery materials on March 10, 2008, but was advised later that day by defense counsel that the Alcotest operator's certification card was missing from the packet. At a pre-trial conference on March 24, 2008, the prosecutor informed that the State Police were in the process of fulfilling the State's request for a replacement operator's card since the original had apparently been misplaced. On the April 7, 2008 trial date, the matter was adjourned and rescheduled for May 15, 2008, because the replacement certification card had not yet been produced by the State Police. When, on May 15, 2008, the defense discovery request had still not been satisfied, the matter was set down for "a try or dismiss" on July 21, 2008.*fn2

Although, at that time, there was no mention of the audio and video tapes requested earlier, the next day, May 16, 2008, defense counsel reminded the prosecutor that no such tapes were ever provided. A follow-up letter of July 15, 2008, once again informed the prosecution that the audio and video tapes, as well as the Alcotest operator's certification card were yet to be provided in discovery.

Although he was given the audiotape and operator's replacement card when he arrived for trial on the evening of July 21, 2008, defendant moved to dismiss the summonses because the videotape and the replacement card request letter*fn3 were still outstanding. In response, the prosecutor explained that the delay was occasioned by the need to replace the operating officer's Alcotest certification card, which had been either lost or misplaced. The judge, who was not the one who had set the "try or dismiss" date, denied the motion without prejudice, and adjourned the matter to allow the State to complete discovery. Soon thereafter, sometime during the week of August 5, 2008, defendant received full discovery.

Defendant's August 5, 2008 motion for reconsideration was denied on September 17, 2008. The municipal court judge noted that discovery had been completed and that a trial date would be set on a "try or dismiss basis." On October 22, 2008, defendant filed an interlocutory appeal in the Law Division, where the matter was heard and denied on November 21, 2008. The judge remanded the matter to the municipal court for trial, admonishing:

I would strongly suggest they schedule it for the trial and not bring it in two or three times. And we don't have some officer here and so forth. Then I think [defendant's counsel] has a different argument than he has today.

. . . I think it's in everyone's interest to move this along for some finality.

If you show up for trial and you have everybody there and, you know, there's some inexcusable reason why the State's not prepared to go, I would hope [the municipal court judge] will make the proper decision based on that.

A trial date was later scheduled for February 24, 2009. But, a week before trial, defendant was informed that the State would be unable to proceed on the scheduled date as one of its police witnesses was absent due to a medical procedure, and the other, a member of the military reserve, was on military leave. Over defense counsel's objection, the matter was adjourned to March 23, 2009, at which time, after defendant's speedy ...


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