NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...