June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN P. FORTUNE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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) whether and how defendant asserted his speedy-trial right, and (4) the prejudice to defendant caused by the delay." Townsend, supra, 186 N.J. at 487.
It is undisputed that defendant was arrested on August 31, 2007, for offenses that occurred within a few weeks of the arrest. The State did not return an indictment until May 27, 2009, about twenty-one months later. During that interval, defendant made two speedy trial motions, which were denied by Judge Kreizman on August 29, 2008, and October 10, 2008. A third speedy trial motion was denied by Judge Kreizman on July 10, 2009, a few weeks after the indictment was returned.
Defendant concludes that his twenty-two month confinement, which was spent in protective custody, was attributed to the State and deprived him of his Sixth Amendment right to a speedy trial.
At the August 29, 2008 hearing on the speedy-trial motion, Judge Kreizman remarked:
This is a case where the allegation is that there were competing gangs, there . . . may have been a gun fight on the street. But in any event, it was alleged that these two defendants, in furthering their gang position, shot at Mr. Pugh, missed him, hit the house and killed the decedent, Mr. Mack.
I find that the nature of these charges, murder, the nature of the background, gangland behavior and guns being fired on the street, I find that those complicate the matters and I do not find that this 12-month period constitutes, in itself, an unreasonable delay.
These findings reflected the State's argument that delay was caused by defendant's gang affiliation with the Bloods, and the need to keep witnesses' identities secret, which impeded the investigation and subsequent grand jury hearings in the matter. Moreover, there were complaints that witnesses had been threatened after testifying at a probable cause hearing. In fact, two of the named witnesses had received visits from family members, which impeded the investigation and presentation to the Grand Jury.
At the October 10, 2008 hearing, Judge Kreizman observed that the six months between defendant's arrest and the date of the motion was not unreasonable delay where a defendant is charged with robbery and murder. The judge credited the State's contentions that delays resulted from pending forensic analysis results, and the case's complexity as a potential RICO matter stemming from gang-related activities.
In deciding the July 10, 2009 motion, Judge Kreizman rejected defendant's arguments of unreasonable delay. The judge again accepted the State's asserted reasons for delay relating to the case's complexity. An application of the Barker factors weighed against a finding of prejudice to defendant or his ability to maintain a defense.
On review, the Barker factors analysis indicates that, although the delay was substantial, the reasons for the delay could not be blamed on the State. The nature of the case and the involvement of rival gangs in the events leading to the offense, compounded by the interference caused by the presence of gang members on both sides of the investigation were circumstances beyond the control of the State or defendant. Lastly, defendant has not shown any prejudice to his ability to prepare a defense or negotiate an agreement due to the delay.
After considering the Barker factors and the foregoing procedural history, we conclude the arguments defendant presents to establish a speedy-trial violation lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also contends:
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We are not persuaded.
Defendant was twenty-one years old at the time of the first offense. He has a history of one indictable, one disorderly persons conviction and three juvenile delinquency adjudications.
The judge found five of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (2) the gravity and seriousness of harm inflicted on the victim; (3) the risk that defendant will commit another offense; (5) there is a substantial likelihood that defendant is involved in organized criminal activity; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law.
The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (11) the imprisonment of defendant would entail excessive hardship to himself or his dependants.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The aggravating factors preponderate and justify imposition of a maximum period of parole ineligibility. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). We also find no error in the imposition of a consecutive sentence for the separate crime of aggravated manslaughter.