On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued February 10, 2011
Before Judges Grall and LeWinn.
The trial judge found a speedy trial violation and dismissed, without prejudice, an indictment charging defendant Kenneth Rittman and his co-defendant James Christos with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); and third-degree possession of a weapon with the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4d. The State appeals. Because the judge did not make factual findings relevant to the legal criteria or provide the remedy appropriate for a speedy trial violation, we reverse.
Early on the morning of February 19, 2009, defendant was arrested and
charged with repeatedly striking Mark Brabant's face and body with a
lump hammer. The assault occurred on February 18, 2009, after
defendant, Christos and Brabant spent the night drinking.*fn1
The grand jurors indicted defendant and Christos on July 7,
2009. Defendant was arraigned on August 21, 2009.
Between defendant's arrest and arraignment, he pled guilty to charges not related to this incident and was awaiting sentencing when he was arraigned on this indictment. In addition, he had filed two motions related to this case. He moved for a trial date pursuant to Rule 3:25-2, and because he wanted to file a complaint charging Brabant with assaulting him on February 18, 2009, he requested a probable cause hearing authorizing him to do so.*fn2
The judge held a status conference on November 10, 2009. Defense counsel asked the judge to postpone defendant's sentencing on the unrelated charges to which he had pled guilty until his pending requests for a trial date and the probable cause hearing authorizing his complaint against Brabant were resolved. The judge set trial for April 13, 2010, and scheduled the probable cause hearing for December 8, 2009.
On December 8, 2009, the judge sentenced defendant on his guilty plea and agreed to decide the question of probable cause for a complaint charging Brabant after he reviewed the police reports and grand jury testimony. On February 2, 2010, the judge issued an order stating, "The court finds sufficient probable cause on the complaint filed by [defendant]." The prosecutor took no action on defendant's complaint charging Brabant, R. 3:25-1, and defendant did not move to dismiss the indictment based on the prosecutor's failure to present exculpatory evidence. State v. Hogan, 144 N.J. 216, 225-26 (1996).
Trial was scheduled for April 13, 2010, but no notices were sent. A few days before April 13, defendant's attorney called to advise the court that he would be unavailable to try the case during the week of April 13 because he had surgery that was more complicated than anticipated and required a greater recovery period than expected. Thereafter, neither defense counsel nor the assistant prosecutor heard anything from the court about a trial date.
A status conference was held on May 14, 2010. Defendant's co-defendant was undergoing chemotherapy and unavailable, and the prosecutor was not present when the judge reached this case. The matter was re-listed for June 25, 2010.
On May 27, 2010, defendant filed a motion to dismiss the indictment for violation of his right to a speedy trial. On June 25, 2010, the judge granted the request.
In granting defendant's motion for a speedy trial, the judge focused on responsibility for the delay in filing defendant's complaint against Brabant and the relevance of that complaint to defendant's trial. He asked whether the statute of limitations had run and whether a dismissal on speedy trial grounds would bar a new presentation to the grand jurors.
Ultimately, the judge concluded that a dismissal with prejudice was not warranted because justice would not be done, but he reasoned that the grand jurors should be permitted to revisit the matter with the benefit of evidence that would allow ...