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State v. Mitchell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ORRIC B. MITCHELL, A/K/A JASUAH CARSTERIN, ORRIC BICEEM MITCHELL, MICHAEL THOMAS, OMAR THOMAS AND OQUAN THOMPSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2021.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010

Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

Defendant Orric B. Mitchell challenges his conviction and sentence for second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). On appeal, he asserts numerous errors including the court's admission of other crimes evidence and failure to offer a limiting instruction in regard thereto, improper jury charges, failure to dismiss the indictment, admission of a video recording of a high-speed police chase, violation of defendant's right to a speedy trial, and an excessive sentence. We are unpersuaded by defendant's arguments and affirm; however, we remand for resentencing.

I.

On July 8, 2007, at approximately 3:30 a.m., defendant was driving at eighty-three miles per hour in a gold-colored Lincoln sedan along Route 9 in Howell Township. Police Officer David MacNeil was on duty, monitoring traffic along defendant's route with the use of radar and noticed defendant's vehicle approaching at a high rate of speed. The officer immediately pursued defendant and drew close enough to identify the vehicle's license plate number, which he entered into the police vehicle's mobile data terminal and called out over the radio to alert other officers in the area. When Officer MacNeil activated the overhead lights on his patrol car, defendant accelerated in response, exceeding speeds of 100 miles per hour.

The patrol car was equipped with a forward-looking video camera and recording device that captured portions of the chase.

As defendant continued north with Officer MacNeil in hot pursuit, defendant began to pass other vehicles by driving on the shoulder of the road. At one point, defendant turned off his headlights in an effort to cloak his presence. Due to safety concerns, Officer MacNeil suspended the pursuit due to the high level of risk.

As defendant entered Freehold Township, Police Officer Scott Keenan of the Freehold Township police department resumed the pursuit, registering speeds up to 120 miles per hour. Eventually, defendant failed to successfully navigate a left-hand turn and crashed his vehicle. He then fled on foot but was apprehended and arrested shortly thereafter. Defendant was read his Miranda*fn1 rights and initially refused to make a statement. Once he was returned to the scene of the crash, however, he asserted that he had been carjacked by an Italian man at a WaWa convenience store in Howell, but the carjacker had managed to escape, and the police had arrested the wrong person.

On June 4, 2008, the court conducted a Driver*fn2 hearing relating to the video recording, and ruled on defendant's motion to dismiss the indictment due to the State's alleged failure to present exculpatory evidence to the grand jury. During the grand jury proceedings, the State had neither shown the video recording of the high-speed pursuit nor offered the radar readings. Defendant asserted that the omission of the video recording and radar readings was misleading, which resulted in a defective grand jury proceeding requiring dismissal of the indictment.

After viewing the video recording of the high-speed chase and considering the testimony of officers MacNeil and Keenan, the court denied defendant's motion to dismiss the indictment finding that the video recording was not exculpatory. Rather, the court ruled that the video recording clearly showed the vehicle, which defendant was operating, traveling at a very high rate of speed with a "potential [to cause] significant injury to anyone who came in its path." In addition, the court found that exculpatory evidence had been presented to the jury in the form of testimony that defendant had claimed he was the victim of a carjacking.

The court also ruled that the video recording of the pursuit was admissible, finding it was reliable evidence, not altered, cut, or changed in any way; the chain of custody was properly preserved; and that the video recording accurately depicted the vehicle in question "being driven in a wanton and willful disregard of the safety of others and at a very, very high rate of speed."

Officer Keenan also testified about defendant's Miranda rights. The officer indicated that shortly after arriving at the scene of the crash, he read defendant his Miranda rights. He further related that defendant fell silent and that none of the officers questioned him, except to determine whether he was injured. In short order, however, defendant volunteered that he had been carjacked by an Italian male and that the officers had arrested the wrong person. On cross-examination, Officer Keenan acknowledged that the police report did not include any mention of defendant's statement of being victimized. As a result, defendant argued that he made no such statement, and Officer Keenan was lying.

The court found Officer Keenan "highly credible," and determined that defendant was read and understood his rights after the arrest. Accordingly, if defendant had made a statement that he was the one carjacked, it was a voluntary statement, admissible at trial.

The State presented photographs of the damaged vehicle during the trial. Defendant objected to their admission claiming that he had not been provided the photographs prior to trial and therefore did not have the opportunity to inspect them or prepare a defense. The owner of the Lincoln -- defendant's one-time girlfriend, Alicia Jackson -- testified that the photographs were taken on July 10, 2007, while the vehicle was in the police impound lot, and that the photographs accurately depicted the extent of the damage that the vehicle sustained. Jackson testified she mailed copies of the photographs to defendant while he was incarcerated awaiting trial and that he acknowledged receiving them.

As part of its jury charge, the court gave the following instruction with regard to eluding:

Now, it is alleged the defendant's conduct involved various violations of the motor vehicle laws both in Howell Township and in Freehold. Among those were allegations of speeding, reckless driving, improper passing, failure to yield the lane, passing on the right, no headlights, unlicensed driver, and driving while suspended to name a few. Whether a defendant is guilty or not guilty of those offenses will be determined by an appropriate court. In other words, it is not your job to decide whether he is guilty or not guilty of any of those motor vehicle offenses. However, you may consider the evidence that he committed such offenses in deciding whether he created a risk of death or injury.

At the same time, remember that you are never required or compelled to draw this inference. As I've already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference, and you are always free to accept or reject any inference if you wish.

The court also instructed the jury with regard to the resisting arrest by flight charge, noting that that State was required to prove that "defendant, fearing that he would be arrested, fled for the purpose of evading that arrest."

On appeal, defendant presents us with eleven discrete points:

POINT 1: THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL BY PERMITTING TESTIMONY REGARDING OTHER CRIMES ALLEGEDLY COMMITTED BY DEFENDANT (PLAIN ERROR).

POINT 2: EVEN IF THE OTHER-CRIMES EVIDENCE WAS PROPERLY ADMITTED, THE JURY INSTRUCTIONS LIMITING THE ADMISSIBILITY OF THIS EVIDENCE WERE INSUFFICIENT (PLAIN ERROR).

POINT 3: THE JURY CHARGE ON ELUDING WAS IMPROPER (PLAIN ERROR).

POINT 4: DEFENDANT'S DISCOVERY RIGHTS WERE VIOLATED BECAUSE PHOTOS OF THE ALLEGED DAMAGED CAR WERE NOT PROVIDED TO DEFENDANT BEFORE TRIAL, AND THE PHOTOS WERE INSUFFICIENTLY AUTHENTICATED FOR ADMISSION AT TRIAL.

POINT 5: THE VIDEO SURVEILLANCE SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS NOT SUFFICIENTLY RELIABLE UNDER DRIVER.

POINT 6: DEFENDANT'S ORAL STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE OF MIRANDA VIOLATION.

POINT 7: THE INDICTMENT SHOULD HAVE BEEN DISMISSED.

POINT 8: THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO CONFRONT THE STATE'S CASE AGAINST HIM AND PRODUCE IMPEACHING EVIDENCE AT TRIAL.

POINT 9: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON FLIGHT.

POINT 10: DEFENDANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED.

POINT 11: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and remand for resentencing.

II.

A.

Defendant's first two arguments relate to evidentiary rulings of the trial court that went unchallenged at trial. Accordingly, the plain error standard of review applies to these contentions. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). As such, they will be reversed only if they were "'clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

Defendant argues that the trial court erred in admitting other-crimes testimony that the car he was driving was being used without permission, which suggested that he had stolen the vehicle. N.J.R.E. 404(b). Defendant contends that this information was not relevant to the indictment and therefore constituted prejudicial error.

From our canvass of the record, it is clear that the complained of testimony does not support his claims. Officer Keenan testified that Jackson indicated defendant had permission to operate the vehicle. Jackson later testified she had given defendant permission to use the vehicle until July 8, 2007, but that he had thus far failed to return it. Although Jackson's testimony may have suggested defendant did not have permission to use the vehicle in the way and location it was operated on the night in question, the record does not support defendant's subjective view that the jury was advised the vehicle was stolen. In fact, Officer Keenan specifically told the jurors that "it wasn't an unauthorized use [of the vehicle] at all."

The manifest risk of admitting other-crimes evidence is simply not present in this case. See State v. Cofield, 127 N.J. 328 (1992). Thus, the trial court did not err in considering the four-prong test for the admissibility of other-crimes evidence, State v. Muhammad, 359 N.J. Super. 361, 389 (App. Div.), certif. denied, 178 N.J. 36 (2003), for two reasons: first, defendant never objected to the evidence, and second, the evidence was not capable of engendering a belief in an average juror's mind that the Lincoln was stolen by defendant.

Evidentiary rulings are reviewed pursuant to the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). Our Supreme Court has established that "[o]n appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Although the trial judge was not called upon to exercise his discretion because no objection was raised, we find that the jury's consideration of the testimony did not result in a manifest denial of justice. For this reason, we reject defendant's second contention that the trial court was obliged to curatively instruct the jury concerning the limited purpose for which the evidence was admitted.

B.

Defendant next argues that the trial court erred by instructing the jury that being an unlicensed driver or driving with a suspended license was a violation of Chapter 4 of Title 39 that could support the inference defendant's flight created a risk of death or injury and failed to properly explain the elements of said violations. The allegedly flawed instruction is the following:

Now, it is alleged the defendant's conduct involved various violations of the motor vehicle laws both in Howell Township and in Freehold. Among those were allegations of speeding, reckless driving, improper passing, failure to yield the lane, passing on the right, no headlights, unlicensed driver, and driving while suspended to name a few.

Because defendant did not object to the instructions at trial, the alleged error should be disregarded on appeal unless it is "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. When evaluating the propriety of a trial court's charge, the charge should be examined in its entirety to determine its overall effect. State v. Delibero, 149 N.J. 90, 106-07 (1997); State v. Dixon, 346 N.J. Super. 126, 135 (App. Div. 2001). This includes considering the charge "in light of the arguments made by counsel, as those arguments can mitigate prejudice resulting from a less-than-perfect charge." State v. Robinson, 165 N.J. 32, 47.

Pursuant to N.J.S.A. 2C:29-2(b), "there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes." Clearly, telling the jury that speeding (N.J.S.A. 39:4-98), reckless driving (N.J.S.A. 39:4-96), improper passing (N.J.S.A. 39:4-85), failure to yield the lane (N.J.S.A. 39:4-88(b), and passing on the right (N.J.S.A. 39:4-85) were valid means of implementing the permissive inference. It is only the final two traffic violations with which defendant takes issue: being an unlicensed driver (N.J.S.A. 39:3-10) and driving while suspended (N.J.S.A. 39:3-40).

Citing State v. Dorko, 298 N.J. Super. 54, 59 (App. Div.), certif. denied, 150 N.J. 28 (1997), defendant claims that the deficiency of this portion of the jury charge lies in its failure to explain the elements of the traffic offenses. In Dorko, we held in a second-degree eluding case "that the failure of the court to charge the elements of the applicable motor vehicle statutes was [] reversible error." Ibid. In addition to not being charged on the motor vehicle offenses, "[t]he jury was never told what the word 'injury' meant in the phrase 'death or injury.'" Id. at 57. We found that "[t]his created a significant problem in that the jury could have speculated concerning the extent of an injury that would satisfy the statute, or even whether property damage was sufficient to turn the crime from one of third-degree into one of second-degree." Id. at 57-58. Thus, the reversal in Dorko was based on the trial court's failure to charge the jury on either of the two issues bearing on the elevation of eluding from a third to a second-degree offense.

The Supreme Court in State v. Wallace, 158 N.J. 552, 558 (1999), indicated that the N.J.S.A. 2C:11-1(a) risk of injury or the commission of motor vehicle offenses in violation of N.J.S.A. 2C:29-2(b) was sufficient for a jury charge on second-degree eluding. Moreover, the court rejected defendant's argument

[t]hat if the [statutorily] permissible inference of N.J.S.A. 2C:29-2b is unavailable, the prosecutor must prove that some member of the public was in the vicinity of the chase caused by the eluding vehicle. We are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route. In our view, the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others.

[Id. at 560.]

The Court noted that "the evidence of the time of day of defendant's chase, the residential or commercial character of the neighborhood, and the volume of traffic all circumstantially demonstrate that people were likely to be in the area and that they were put at risk of death or injury by defendant's eluding." Ibid.

Here, the evidence -- without any permissive statutory inference -- demonstrated that defendant's conduct created a risk of death or injury by his actions while eluding the police. Defendant drove the Lincoln through two municipalities at speeds exceeding 100 miles per hour on shoulders of the roads and weaving through traffic and, in one instance, with his headlights off. The final failure to maintain control of the vehicle that resulted in its crash is further satisfactory evidence that the jury charge was sufficient to support the verdict on second-degree eluding.

C.

Defendant complains that the trial court's admission into evidence of photographs of the Lincoln after the crash deprived him of discovery rights and impeded his ability to defend. Moreover, he argues that the photographs were not properly authenticated. We disagree.

We are mindful that Rule 3:13-3(c) provides that the prosecutor shall permit defendant to inspect or copy numerous types of relevant discovery materials. Additionally, Rule 3:13-3(g) imposes a continuing duty upon the State to notify defendant if additional discovery data are revealed. However, the trial court has broad discretion in determining what sanctions to impose when a party fails to adhere to its discovery obligations.

Here, it is uncontested that the six photographs first came to the attention of the State when the Lincoln's owner brought them with her on the day she was called to testify. The owner stated that the reason the photographs were taken was to demonstrate to defendant the extent of the physical damage he had done to her car. She indicated that she had sent the photographs to defendant and personally confronted him about the damage prior to the trial, and she observed the photographs in his possession.

On the very day that the existence of the photographs was made known to the prosecuting attorney, this information was given to defense counsel. Therefore, the State met its continuing duty to disclose. R. 3:13-3(g). Defendant argues that he was placed in a disadvantaged position as a result of the State's late disclosure because he did not have sufficient time to "investigate the veracity and reliability of this evidence."

Given all of these circumstances, an adjournment was neither necessary nor appropriate. After reviewing the thoughtful consideration of the trial court given to the controversy, we find no "abuse of discretion, i.e., there has been [no] clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

As for authentication of the photographs, this was provided by the owner's presence at the time they were taken, in combination with a police officer who observed the crash scene and who testified to the accuracy of the depiction of the damage. The admissibility of any relevant photograph rests upon whether the photograph fairly and accurately depicts what it purports to represent. N.J.R.E. 901. The question of whether a photograph is a sufficiently accurate representation is a preliminary issue for the court. State v. Wilson, 135 N.J. 4, 15 (1994).

Any witness with knowledge of the facts represented by the photograph may authenticate the photograph. Id. at 14-15. To authenticate a photograph, the testimony of a witness must establish that:

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph. [Id. at 15.].

We are satisfied that all of these elements were demonstrated prior to the photographs being made available for viewing by the jury.

D.

Defendant takes issue with another evidentiary ruling: the admission into evidence of the video recording of parts of the high-speed chase. The primary areas of defendant's grievances appear to be a supposed lack of authentication and the discontinuity of what is depicted on the video recording.

As we have already noted, we review evidentiary rulings of the trial court pursuant to an abuse of discretion standard. After viewing the video recording, the trial court found that it was properly authenticated and adequately preserved through a suitable chain of custody. We are convinced that the trial court conscientiously applied its gatekeeper function and did not abuse its discretion by admitting the video recording.

E.

Defendant next attacks the admissibility of his oral statements given to the police. He argues that the trial court erred in finding those statements voluntary, and urges that because the statements were not corroborated in a written report, they are insufficiently reliable. We again disagree.

The State bears the burden of proving beyond a reasonable doubt that any statement made by defendant was given under circumstances evidencing a knowing, voluntary, and intelligent waiver of defendant's right to remain silent. State v. Knight, 183 N.J. 449, 461-62 (2005). On appeal, this court is prohibited from making an "independent assessment of the evidence as if it were the court of first instance" and where credibility findings are made, affords the trial court proper discretion. State v. Locurto, 157 N.J. 463, 471 (1999).

At the scene of the crash, defendant was arrested and taken into police custody. Officer Keenan testified that defendant was read his Miranda rights immediately after his apprehension. He then explained that defendant refused to speak and the police officers standing nearby did not question him further. While being tended by first aid workers, defendant blurted out that he had been carjacked at a WaWa store in Howell and that the officers had arrested the wrong person.

The trial court listened to Officer Keenan's testimony, observed him as he testified, and found him "highly credible." The court concluded that defendant was read his rights and understood them; furthermore, if, in fact, defendant had made a statement, it was voluntary and intelligently made, and therefore admissible at trial. We believe that this conclusion is well-founded in the record, and the absence of a written memorialization does not erode the admissibility of defendant's statements.

F.

Defendant's next argument relates to his contention that the indictment should have been dismissed because of the failure of the State to present to the grand jury "the entire surveillance tape, which was central to the State's case against him." Instead, the evidence considered by grand jurors consisted of the sworn oral statements of police officers. The trial court considered defendant's arguments and rejected them, as do we.

The trial court, after reviewing the video recording, noted that not only did it not negate guilt, but it bolstered the State's charges against defendant. The court even went so far as to comment, "[defendant is] fortunate it wasn't shown to the grand jury." Defendant, on appeal, has not demonstrated otherwise.

Generally, "'the decision whether to dismiss an indictment lies within the discretion of the trial court [.]'" State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002) (quoting State v. Hogan, 144 N.J. 216, 229 (1996). In Mason, we stated that "in the absence of an abuse of that discretion, we will not disturb the determination of the trial court." Id. at 299.

In Hogan, our Supreme Court noted:

[I]n establishing its prima facie case against the accused, the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a "half-truth." Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor's office. Our State Constitution envisions a grand jury that protects persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor.

In order to perform that vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts and interferes with the grand jury's decision-making function. [Id. at 236 (citations omitted).]

Accordingly, our Supreme Court held that a prosecutor has a limited duty to introduce such evidence if it "both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.

The State argues, relying on State v. Cook, 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000), that any errors in the grand jury presentation were made harmless by the petit jury verdict. While that is true, the abundance of evidence renders defendant's claim that the video recording "was central" unavailing. It cannot be characterized as exculpatory by any stretch of the imagination. It was not required to be presented to the grand jury, and the trial court correctly denied defendant's motion to dismiss the indictment.

G.

Defendant's eighth point raises other evidentiary issues. He claims that his right to present a meaningful defense was frustrated by the trial court's rulings that barred his use of "police and first aid reports, prior statements of police witnesses, and materials regarding the radar operation and speeding calibration." We are somewhat hampered in our review by the lack of specificity in defendant's arguments. For example, we cannot discern from defendant's brief, beyond his statements of generalized constitutional principles, how defendant intended to utilize these data, and how his rights were infringed.

More significantly, we return to a fundamental question for this court to answer, which is whether the trial court abused its discretion. State v. Lykes, 192 N.J. 519, 534 (2007); see State v. Kemp, 195 N.J. 136, 149 (2008). We are unable to conclude from our review of the totality of the circumstances that the trial court abused its abundant discretion or that defendant was materially prejudiced by the evidentiary rulings.

H.

Defendant further asserts that the trial court fatally infected his chances of acquittal by mistakenly charging the jury about flight. He contends that the instructions concerning eluding already contained elements of flight, and "[g]iving a separate flight charge had great potential for jury confusion on what inferences they were entitled to draw in deliberating the charges against defendant. The flight charge allowed the jury to draw too many inferences of guilt."

From our review of the record, the passages defendant complains about were conveyed to the jury as part of the court's instructions on the second count of the indictment, resisting arrest by flight, pursuant to N.J.S.A. 2C:29-2(a). When reviewed under the totality of the circumstances doctrine, State v. Chapland, 187 N.J. 275, 289 (2006), the trial court provided the jury with a fair statement of the law, molded by the proofs. We are satisfied that not only were the instructions correct, but defendant suffered no prejudice thereby.

I.

Defendant asserts that his right to a speedy trial was violated, which requires the dismissal of the charges lodged against him. Defendant's involvement with government in this case began on the day he was arrested, July 8, 2007. The grand jury indictment was filed less than two months later. He first asserted a right to a speedy trial in June 2008, which resulted in the trial commencing on September 10, 2008. Thus, from arrest to commencement of the trial consumed fourteen months.

The State notes that the trial had initially been planned to begin in March 2008, which was scheduled after the plea cutoff date in January 2008. R. 3:9-3(g). However, the March 2008 trial date did not take place because defendant had filed motions to dismiss the indictment, for discovery, and to suppress evidence. This is not to criticize defendant's zealous defense; rather, it simply explains the chronology of events that caused the matter to reach trial readiness one year after the indictment.

"The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009). "'The constitutional right... attaches upon defendant's arrest.'" Ibid. (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)).

It is the State's duty to promptly bring a case to trial; that responsibility does not fall on the defendant. Id. at 8; see also State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). "[A]s a matter of fundamental fairness," the State must avoid "[e]xcessive delay in completing a prosecution[,]" or risk running afoul of the "defendant's constitutional right to speedy trial." State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999).

The determination of "when a delay infringes upon a defendant's due process rights," Tsetsekas, supra, 411 N.J. Super. at 8, is guided by the four-part test announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117 (1972), and adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). Specifically, courts must consider and balance the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Szima, supra, 70 N.J. at 201. In applying the four-part test, "[n]o single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Tsetsekas, supra, 411 N.J. Super. at 10.

Measured against these factors, we conclude that there was no violation of defendant's constitutional right to a speedy trial. The trial was delayed for valid reasons and when defendant asserted his speedy trial rights he was accommodated within three months. We detect no ascertainable prejudice to defendant and conclude that the trial court's management of this case was appropriate and fair.

J.

Defendant's last point relates to his sentence, which he alleges is excessive. Although the State does not concede that much, it does recognize that the sentencing was sufficiently imperfect that the matter should be remanded for re-sentencing. We agree that the matter should return to the Law Division for the reasons that follow.

The sentencing court applied aggravating factor eight to the resisting arrest conviction. N.J.S.A. 2C:44-1(a)(8) ("The defendant committed the offense against a police or other law enforcement officer"). This constituted an impermissible double counting because police involvement is a necessary element of a resisting arrest conviction and therefore cannot be considered an aggravating factor. State v. Nataluk, 316 N.J. Super. 336, 350 (App. Div. 1998).

As for defendant's claim that he was mandatorily-entitled to the benefit of a non-statutory mitigating factor relating to his relatively young age, we reject it. We do not find defendant's age of twenty-three so young that we should conclude that the judge erred as a matter of law in failing to consider his age. Cf. State v. Dunbar, 108 N.J. 80, 95 (1987) (where the defendant was twenty-two at the time of the offense); State v. Tanksley, 245 N.J. Super. 390, 396-97 (App. Div. 1991) (where the defendant was a juvenile at the time of the offense).

The conviction is affirmed in all respects. However, the matter is remanded for resentencing on both counts in accordance with this opinion.


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