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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. SASO PETROVSKI, Defendant–Appellant.

DOCKET NO. A–1477–12T1

    Decided: March 19, 2014

Before Judges Harris and Kennedy.Scott D. Finckenauer, attorney for appellant. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).

Following a consensually truncated trial de novo in the Law Division, limited to the question of whether defendant Saso Petrovski was denied his right to a speedy trial, Petrovski appeals from the October 17, 2012 judgment that “denied” his municipal appeal and confirmed his conviction for violating N.J.S.A. 39:4–50.   We affirm.


On November 12, 2010, Petrovski was operating his motor vehicle on Route 46 in Clifton while intoxicated.   After being stopped by the State Police for failure to maintain his vehicle in a lane, Petrovski underwent field sobriety tests, and later submitted to an Alcotest, which resulted in a reading of 0.08 percent blood alcohol concentration.   Petrovski was charged with violating N.J.S.A. 39:4–50 and 4–88.

The matter was scheduled for case management conferences in January and February 2011, but it was not yet ready for trial.   On March 8, 2011, a final case management conference was conducted where the municipal court judge found that discovery was complete and the matter trial ready.   A May 19, 2011 trial date was subsequently scheduled, which did not occur because the State requested an adjournment when its witnesses —— the arresting officer and the officer who performed the Alcotest examination —— did not appear.   The judge rescheduled the trial for July 28, 2011.

The trial did not occur on July 28 because an older case was in process.   A new trial date for August 31, 2011, was assigned.   Unfortunately, on August 31, New Jersey was in the midst of an emergency created by the effects of Hurricane Irene.   The State's witnesses were unavailable because of their duties patrolling flooded areas in Fairfield and Wayne.   Petrovski did not oppose the adjournment.

The next trial date was scheduled for November 10, 2011.   On that date, the State requested another adjournment, claiming that its witnesses were again not available because of confusion and conflicts with scheduling.   Petrovski's attorney moved for dismissal of all charges because of the State's inability to prosecute.   The attorney represented that his client, a truck driver who “loses several days' pay for being here” each time, had already been to court five times, and argued that the witnesses' nonattendance was not supported by a valid excuse.   The municipal court judge refused to dismiss the case, but scheduled the trial for January 23, 2012, as a “try or dismiss” matter.

On January 23, 2012, the State's witnesses appeared for trial.   At that time, Petrovski entered a conditional plea to driving while intoxicated, subject to preserving his right to argue that the complaints should have been dismissed for want of a speedy trial.   The appeal to the Law Division followed.

On August 31, 2012, after oral argument by the parties' attorneys, Judge Daniel J. Yablonsky ruled that “the delays in this case were reasonable,” “the assertion of the speedy trial right came very late,” and “once [that right was] asserted, every effort was made to dispose of the case immediately.”   Judge Yablonsky concluded that after “look[ing] at the issue of the speedy trial ․ [he] simply d[id]n't find it on the facts of this case.”   Accordingly, because “there was no de novo review of the guilty plea —— there was no trial,” the judge declared, “there is no need to re-impose sentence.”   This appeal followed.


On appeal, Petrovski reprises his claim that he was denied a speedy trial:


We disagree.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on

the states by the Due Process Clause of the Fourteenth Amendment.  Klopfer v. N. Carolina, 386 U.S. 213, 222–23, 87 S.Ct. 988, 993, 18 L. Ed.2d 1, 7–8 (1967).   As a matter of fundamental fairness, excessive delay in completing a prosecution may qualify as a violation of a defendant's constitutional right to a speedy trial.  State v. Farrell, 320 N.J.Super. 425, 445–46 (App.Div.1999) (citing State v. Gallegan, 117 N.J. 345, 354–55 (1989)).   “ ‘A defendant has no duty to bring himself to trial;  the State has that duty [.]’ ”  State v. Merlino, 153 N.J.Super. 12, 17 (App.Div.1977) (quoting Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L. Ed.2d 101, 115 (1972)).

Because the facts relevant to the delay in this matter are undisputed, the issue presented is purely a question of law.   A “ ‘trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.’ ”  Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We review denial-of-speedy-trial claims under the four-factor balancing analysis of Barker.  State v. Cahill, 213 N.J. 253, 258 (2013).   Barker “identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial:  length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant.”  Id. at 264 (citation omitted).   These standards also apply to municipal prosecutions.   See State v. Berezansky, 386 N.J.Super. 84, 99 (App.Div.2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008).

Here, Petrovski was initially afforded several months to complete discovery.   His trial before the municipal court was then delayed by approximately six months until August 31, 2011, when Hurricane Irene intervened.   We cannot ascribe the two-month delay between the end of August and the beginning of November to the State, but the ensuing hiatus from November 10, 2011, until January 23, 2012, rightly lies at the feet of the prosecution.   This delay was caused by the State's apparent inability to coordinate the production of its necessary witnesses.   Petrovski objected to the delay and asserted his right to a speedy trial on November 10, 2011, when the municipal court judge indicated that he would grant the State additional time.   The record reflects that Petrovski was not prejudiced by this delay.   Indeed, the municipal court ordered that the January 23, 2012 trial date be “try or dismiss.”   Under these circumstances, an aggregate nine-month delay does not warrant dismissal of the charges.



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