August 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAMIAN M. CASTRO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Complaint Nos. W-2011-000251-1216 and W-2011-000954-1216.
Martin D. Matlaga, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Kennedy.
Defendant appeals, pursuant to leave granted, from an order of the Law Division denying his motion to dismiss complaint no. W-2011-00251-1216 with prejudice and to reduce bail on complaint no. W-2011-000954-1216. Defendant argues the motion court erred because such relief was warranted by the State's "unreasonable delay in presenting the charge[s] to a grand jury" pursuant to Rule 3:35-3. We disagree and affirm.
On March 9, 2011, defendant was arrested and complaint No. W-2011-00251-1216 was issued charging defendant with second-degree robbery of Noel Perez, N.J.S.A. 2C:15-1 and 2C:2-6. Bail was set at $50, 000 and defendant posted bail on July 28, 2011, and was released.
On August 4, 2011, defendant was arrested and complaint no. W-2011-000954-1216 was issued charging defendant with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Bail was set at $200, 000, and defendant remains incarcerated.
Starting on July 15, 2011, defendant filed various motions to dismiss the robbery complaint with prejudice "because of the denial of defendant's fundamental speedy trial rights." Each motion was denied, with the last such motion denied by order of the Law Division on April 5, 2012. On that same date, the Law Division also denied defendant's motion to reduce bail on the weapons charges to $50, 000.
Defendant thereafter moved for leave to appeal from the order of April 5, 2012, and we granted the motion on May 21, 2012, at which time more than fourteen months had elapsed since defendant's initial arrest. On August 6, 2012, the State Grand Jury returned Indictment No. SGJ-621-12-10 charging defendant and thirty others with first-degree racketeering, N.J.S.A. 2C:41-2c and 2C:41-2d; defendant and another with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, and second-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; and defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
The State argues that, given the return of the indictment, defendant's appeal is moot and the pre-indictment delay was not unreasonable and was attributable to a "complex, multi-agency criminal investigation that culminated in a thirty-two count indictment against defendant, his fellow Neta gang members and certain civilians" who assisted the gang. The State also argues that defendant has suffered no "actual prejudice" as a result of the delay.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United State Supreme Court considered the Sixth Amendment's guarantee of a speedy trial to all criminal defendants. The Court adopted a "balancing test" that required consideration of four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
Our Supreme Court adopted the Barker test in State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976). Our Court rules permit a defendant to seek dismissal of an indictment, and further permit the court to do so sua sponte, when "there is unreasonable delay in presenting the charge to a grand jury[.]" R. 3:25-3. Determination of what is an "unreasonable" delay rests upon "balancing of interests . . . on an ad hoc basis" considering the idiosyncratic facts of each case. Szima, supra, 70 N.J. at 201. "[N]one of the four factors [is] . . . a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they [are] to be treated as related factors to be considered with such other circumstances as may be relevant." Ibid.
In addition, New Jersey has "declined to adopt a bright-line" rule with respect to speedy trial claims. State v. Cahill, 213 N.J. 253, 270 (2013). Instead, "[d]ifferent facts lead to different outcomes and therefore the results in those cases are reconcilable under the Barker analyses." Id. at 271.
In Szima, the Court noted that a twenty-two month delay between complaint and indictment did not in and of itself merit dismissal. Id. at 201. However, unlike the defendant in Szima, defendant here was incarcerated for approximately four months following his initial arrest, and has remained in custody on the second complaint since August 4, 2011. The delay is not one we condone, but, in and of itself, does not warrant dismissal, particularly where, as here, defendant demonstrates no actual prejudice.
Defendant argues that he need not demonstrate any particular prejudice caused by the delay, and that it should be presumed that any delay is prejudicial. We are unpersuaded by both of these contentions. Defendant has not asserted, the judge did not find, nor does the record disclose, any intent by the State to hamper defendant's ability to present a defense. Indeed, the delay in this case was because the matter was not a straightforward case. It started out as a robbery case, but when the State investigated further, it soon became apparent that the matter involved alleged racketeering activity involving over thirty individuals. See State v. Gaikwad, 349 N.J.Super. 62, 87-88 (App. Div. 2002) (seventeen-month delay not unreasonable due to the "complexity of the subject matter of the case"); Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33
L.Ed.2d at 117 (noting as an example that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious complex conspiracy charge")
The obvious complexity of the case is manifest from a perusal of the indictment itself This fact together with the absence of actual prejudice to defendant undercuts defendant's arguments on appeal Further defendant's arguments on bail are insufficient to warrant discussion in a written opinion R 2:11-3(e)(2)