On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-05-1118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 13, 2012 --
Before Judges A. A. Rodriguez and Reisner.
After defendant Benjamin P. Fortune's speedy trial motions were denied, he entered a plea of guilty to: first-degree racketeering, N.J.S.A. 2C:41-2c; second-degree conspiracy and armed robbery, N.J.S.A. 2C:5-2 and 15-1; and first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The State agreed to dismiss related charges and to recommend an aggregate term not to exceed twenty-three years and subject to a NERA*fn1 period of parole ineligibility. Defendant expressly reserved his right to appeal the denial of his speedy trial motions.
At the plea hearing, defendant testified that he conspired to commit: murder; attempted murder; armed robbery; terroristic threats; and to possess a weapon for an unlawful purpose. He declined to mention his co-conspirators by name, but admitted that there were "other people" and that he was a member of "an organization," i.e., the Bloods gang. The conspiracy was centered on activities in Asbury Park, between June 2007 to August 2007.
Defendant admitted that as part of the conspiracy, he committed an armed robbery, along with two other persons on June 7, 2007. During the robbery, "someone got killed" by being shot with a firearm. That person was identified as Gary Allen.
With respect to another shooting incident, defendant testified that on August 24, 2007, he was "shooting at Tyking Pugh" and "accidentally killed [Carlton] Mack," who was inside a house.
Judge Daniel M. Waldman imposed a ten-year term on the racketeering conviction, a concurrent ten-year term on the conspiracy to commit robbery conviction, and a thirteen-year term on the aggravated manslaughter conviction to run consecutive to the other two terms. Thus, the aggregate term (twenty-three years) was consistent with the State's sentence recommendation in the plea agreement.
On appeal, defendant contends:
THE MORE THAN 22-MONTH DELAY IN BRINGING DEFENDANT TO TRIAL BY THE TIME OF HIS THIRD SPEEDY TRIAL MOTION DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL. U.S. Const., Amends VI, XIV; N.J. Const. (1947), Art. 1 & 10.
The standard of review for a denial of a speedy-trial claim is settled. The Sixth Amendment of the United States Constitution affords a defendant the right to a speedy trial on criminal charges; through the Due Process Clause of the Fourteenth Amendment, that right is applicable in state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7 (1967); see State v. Szima, 70 N.J. 196, 200-01 (discussing the speedy-trial right pursuant to Article I, paragraph 10 of the New Jersey Constitution and the federal constitution, as construed in Klopfer), cert. denied sub nom. Szima v. New Jersey, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
The speedy-trial right protects a defendant's interest in minimizing "pretrial incarceration," the accused's pretrial "anxiety and concern," and delay that impairs ability to present a defense. Barker v. Wingo, 407 U.S. 514, 532-33, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101, 118 (1972). Alleged violations of the speedy-trial right are assessed by balancing four factors set forth in Barker. Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118-19; State v. Townsend, 186 N.J. 473, 487 (2006). Barker "requires the court to consider: (1) the length of the delay, (2) the reasons for the delay, (3) ...