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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RALPH CALITRE, Defendant–Appellant.

DOCKET NO. A–2262–12T1

    Decided: March 28, 2014

Before Judges Alvarez and Carroll. Greggory M. Marootian argued the cause for appellant. Daniel Bajger, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney;  Mr. Bajger, of counsel and on the brief).

Defendant Ralph Calitre appealed his municipal court conviction for driving while under the influence (DWI), N.J.S.A. 39:4–50, and disregard of marked lanes, N.J.S.A. 39:4–88(b), pursuant to Rule 3:23.   Following a trial de novo in the Law Division on September 14, 2012, he was again convicted.   On the DWI, he was resentenced to $1000 fine, $39 costs, ten-year license suspension, incarceration for 180 days, and the use of an ignition interlock device.   The Law Division judge suspended the $150 fine on his disregard of marked lanes.   We affirm.

The principal issue defendant now raises is whether the charges should have been dismissed based on speedy trial grounds.   We limit our discussion of the facts and procedural history to that which is relevant to the point on appeal.

Defendant was charged on August 29, 2009.   His attorney promptly filed an entry of appearance and not guilty plea, requested discovery, and filed a motion to suppress defendant's statements to police, as well as a separate motion to suppress the Alcotest reading.1  The motions were not served on the municipal prosecutor until the day scheduled for trial.   Hence, instead of a trial, the municipal court judge conducted an evidentiary hearing.   The judge denied the Miranda 2 motion but suppressed the Alcotest results.

The State filed its appeal of the suppression order on March 8, 2010, twelve days after the hearing.   The matter was initially addressed in the Law Division on June 11, 2010, and the interlocutory appeal was initially denied.   On the State's application for reconsideration, however, heard and decided on July 1, 2010, the Law Division judge remanded the case to the municipal court, retaining jurisdiction over the appeal.   He directed that the municipal court judge render his reasons for exclusion in writing, and issue a formal order embodying his decision.   That order was signed on July 26, 2010.

The appeal was scheduled for final hearing in the Law Division on September 10, 2010.   Defendant's attorney requested the matter be carried once to September 23, 2010.   The Law Division judge ultimately reversed suppression of the Alcotest results, and sent the matter to the municipal court for trial.

On January 15, 2011, defendant sought additional discovery pursuant to State v. Maricic, 417 N.J.Super.   280 (App.Div.2010), decided on August 31, 2010.3  When the State refused to provide the additional materials on January 23, 2011, defendant filed a motion to compel the discovery.   The application was granted, and on February 10, 2011, the State was ordered to produce the requested materials.   Another trial date was scheduled.

Defendant requested additional discovery on the next scheduled trial date, May 16, 2011.   Counsel indicated that he would not be available for trial the following week.   There were additional delays for reasons not clear from the record.

The trial finally commenced on October 27, 2011, at a special session.   The State's first witness was thoroughly examined and cross-examined.   At the end of that witness's testimony, the court consulted with the attorneys about scheduling, noting that it was early in the evening and that the State no doubt had additional witnesses.   The court then asked counsel if they preferred to resume later in the evening after other matters had been concluded, or to reschedule.   After some discussion, defense counsel commented that there were a “lot of delays here that really, again, were the result of an interlocutory appeal being taken.   And I said before, and I'll say it again, I think the fashion in which that was handled was piecemeal and that caused the lion's share of these delays.”   The municipal court prosecutor objected, and the judge reminded counsel that this issue had been previously aired on the record and refocused the conversation on scheduling.

At that point, defense counsel stated “perhaps it makes sense then to come back and finish up.   It's probably a good time to break, because I finished the cross.”   Counsel also said that the defense expert had been present in court that evening.

The State rested when trial resumed on December 8, 2011.   Defense counsel explained that the only defense witness would be an expert “who is unfortunately not available tonight ․ [h]e had to run to Manville.   I would anticipate his testimony being about—I would think about an hour.”   The judge warned that, because of a full calendar, if the defense could not proceed that evening, the trial would have to be carried into the following year.

The trial was thus continued to March 22, 2012.   The municipal court prosecutor explained on the record that efforts to proceed earlier than March failed because of the unavailability of defendant's first expert.   Ultimately, defendant retained a second expert.

After the defense rested, the judge advised counsel that he would review all the evidence, including a video, before rendering his decision.   On April 26, 2012, the judge found defendant guilty of both offenses.

In denying defendant's appeal on the grounds of speedy trial, the Law Division observed that the reasons for the delay were “attributable to both sides.”   As the judge also observed, despite the theoretical prejudice resulting from the passage of time, defendant's motions worked to his advantage, as the Alcotest reading had been initially excluded.   Although no one intended to “deliberately delay the prosecution of the matter,”

the State chose to protect its position with regard to the [Alcotest];  [defense counsel] chose to pursue on behalf of his client motions that he felt were appropriate, and good defense practice certainly was involved here in terms of hiring an expert, and it just didn't work in terms of [the first expert], so he got another expert, which again is good practice.

The Law Division judge added that, during the pendency of the matter, defendant's driving privileges were not suspended.   After analyzing all these circumstances, the court denied the appeal.

Defendant reiterates that “the staggering delay in bringing the complaints to conclusion – August 29, 2009 (complaints) to April 26, 2012 (municipal court verdict) – violated Calitre's constitutional speedy trial rights.”   We do not agree.

Our Supreme Court recently had occasion to reassess the Barker v. Wingo 4 factors in precisely this context.   The four Barker factors include “length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.”  Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L. Ed.2d at 117.

In State v. Cahill, 213 N.J. 253 (2013), the Court began its discussion with the caution that each application for dismissal based on speedy trial principles is fact-sensitive, and requires “a case-by-case analysis rather than a bright-line time limitation.”  Cahill, supra, 213 N.J. at 270.   Fairness calls for varying timelines depending on individual circumstances — delays as long as 344 days between arrest and resolution were unacceptable in some cases, while in others, a thirty-two-month delay was justifiable.  Id. at 271.

In State v. Tsetsekas, 411 N.J.Super.   1 (App.Div.2009), for example, the 344–day delay was occasioned by the municipal prosecutor's lack of preparedness and resulting inability to proceed to trial on scheduled dates, despite the matter being listed every six months.   There, dismissal based on speedy trial was warranted as the State's delays appeared unjustified.

In State v. Fulford, 349 N.J.Super.   183 (App.Div.2002), however, the delay was occasioned by the State's inability to proceed on the companion drunken driving charge until defendant completed a three-year term of pretrial intervention (PTI).   That was not a basis for dismissal on speedy trial grounds, because although the State's “double jeopardy justification was insubstantial,” it did allow defendant the opportunity to satisfactorily complete PTI, thereby obtaining dismissal of indictable charges, and retain his license over a four-year period.  Id. at 195.   During his PTI term defendant never inquired regarding the status of his DWI charges.  Ibid. Accordingly, no abuse of discretion occurred when defendant's speedy trial motion was denied.  Id. at 195–96.

We now consider the Barker v. Wingo factors in these circumstances.   The first inquiry is into the length of delay, which, from August 29, 2009, to April 26, 2012, is inordinate.   Defendant asserted his right to a speedy trial immediately.

Insofar as prejudice to the defendant, we are mindful of the language in Cahill:  “any person who has had limited involvement with the criminal justice system would experience some measure of anxiety by the existence of a pending and long unresolved charge.”  Cahill, supra, 213 N.J. at 275.   That anxiety would be enhanced in this case, because defendant knew if convicted, his license would be suspended for ten years, as he was a third-time offender, and that a county jail sentence was mandatory.

Where we part company with defendant is our assessment of the reasons for delay.   There were, as the Law Division judge stated, a host of reasons for delay on both sides.   The State and defendant engaged in vigorous advocacy, including extensive pre-trial motion practice.   Defendant's decision to retain an expert also resulted in delay, but given the potential consequences of conviction, the decision to retain an expert was unassailable.   The pretrial applications, including defendant's discovery requests as well as the State's appeal, caused the delay.   Neither party can be faulted, however, for engaging in strategies to protect their respective clients, even if at the end of the day, the consequences included an unusual delay between the filing of the complaint and final disposition.   Accordingly, even post-Cahill, in this case, defendant's speedy trial rights were not violated.



1.  FN1. Before the Law Division judge, defendant contended that the motion, because it was captioned as seeking the “exclusion” of the Alcotest results, was not subject to interlocutory appeal as permitted by Rule 3:24(a).   Defendant now contends that the municipal prosecutor's failure to move for an interlocutory appeal negates the propriety of the Law Division's consideration of the issues and warrants reversal.   That point lacks sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

2.  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

3.  FN3. Maricic held that a defendant has the right to discover Alcotest results from the date of last calibration to the date of a defendant's test, and any repair logs or documentation relating to the repairs of the Alcotest machine.

4.  FN4. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101 (1972).


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