                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2462-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ADAM J. PETRUZZIELLO,

     Defendant-Appellant.
________________________________

              Submitted March 7, 2017 – Decided           June 27, 2017

              Before Judges Espinosa and Suter.

              On appeal from the Superior Court of New
              Jersey, Law Division, Morris County, Municipal
              Appeal No. 15-035.

              Levow DWI Law, P.C., attorneys for appellant
              (Evan M. Levow, of counsel and on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney for respondent (Erin Smith Wisloff,
              Supervising Assistant Prosecutor, on the
              brief).

PER CURIAM

        Adam J. Petruzziello (defendant) appeals a December 21, 2015

order,     which    denied    his   request    to   dismiss   a   driving    while
intoxicated conviction on speedy trial grounds.                We reverse the

conviction.

     In September 2013, defendant sustained significant injuries

when the motorcycle he was operating struck a parked truck.                  He

was charged with driving while intoxicated, N.J.S.A. 39:4-50;

reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A.

39:4-97;   failure     to    maintain   a   lane,   N.J.S.A.    39:4-88;   and

speeding, N.J.S.A. 39:4-98.

     The case was transferred to the Morris County Prosecutor's

Office (the prosecutor's office) in early October 2013, within

weeks of the accident, for investigation and possible presentment

to the Grand Jury.      The record provides no information about the

course of that investigation, but no additional charges were

brought against defendant.

     In    September        2014,   a   Superior    Court    judge   remanded

jurisdiction of the case to the Rockaway Township Municipal Court.

It is unexplained why the remand was not recorded until November

2014.   Defendant's first appearance on the September 2013 charges

was in January 2015, when he pled not guilty.               The parties were

in court on discovery issues in April and June.             Defendant did not

raise the speedy trial violation claim until June 4, 2015.                 The

motion was denied on July 22, 2015, and defendant pled guilty to



                                        2                             A-2462-15T1
driving while under the influence, conditioned on the outcome of

the appeal.     The other charges were dismissed.

     Defendant appealed this conviction, which was heard de novo

in the trial court. On December 21, 2015, the trial court rejected

defendant's claimed speedy trial violation, and sentenced him to

a ninety-day suspension of his driver's license, fines, court

costs, penalties and a surcharge, which was the same sentence

imposed by the municipal court judge.1

     The Superior Court found defendant's injuries did not cause

delay in the case.       The twenty-two month delay was attributable

"at least in the first instance to a review by the Morris County

Prosecutor's Office," for investigation.          The trial court did not

know whether the "delay [was] caused simply by the bureaucratic

miasma    in   the   prosecutor's   office   or   some   further   detailed

investigation."      Nevertheless, the trial court found there was "no

indication" the delay was due to inattention by the prosecutor.

Further, there was "no evidence of a deliberate attempt by the

State to gain an advantage over the defendant by reason of the

delay."    The trial court stated the State was prejudiced by delay

because it had to prove its case through "observation" and not

through blood alcohol results.


1
  We understand defendant has served the suspension. The record
does not provide whether the monetary amounts were paid.

                                     3                              A-2462-15T1
       The trial court found defendant did not assert his right to

a speedy trial until June 4, 2015, which was "a significant factor

in    weighing   the    delay   in   this     case,     and   its   impact   on    the

defendant."      It also found defendant "may have suffered some

anxiety" while the charges were pending, but there was no evidence

of    "employment      interruptions,"        "public    ridicule     or   scorn    or

negative status" because of these charges, nor "indication of

actual    prejudice."       The   trial       court   did     not   find   the   delay

oppressive or that defendant's "speedy trial rights under the

Sixth Amendment were significantly impacted."

       Defendant's appeal raises these issues:

            POINT I:      SINCE APPELLANT WAS THE ONLY ONE
                          INJURED IN THE ACCIDENT, AND NO
                          CRIMINAL CHARGES WERE FILED, THERE
                          WAS   NO  VALID   REASON  TO   HAVE
                          TRANSFERRED THIS CASE TO THE COUNTY
                          PROSECUTOR, OR FOR IT TO HAVE
                          LANGUISHED THERE FOR ALMOST A YEAR,
                          BEFORE BEING SENT BACK TO THE
                          MUNICIPAL COURT AND RESOLVED 677
                          DAYS AFTER APPELLANT'S ARREST, THIS
                          CASE MUST BE DISMISSED.

            POINT II: THE LAW DIVISION'S RELIANCE ON STATE
                      V. ALEXANDER,2 WHICH INVOLVES PRE-
                      ARREST AND PRE-INDICTMENT DELAY, IS
                      MISPLACED: STATE V. CAHILL3 IS
                      CONTROLLING AND REQUIRES DISMISSAL
                      OF THIS MATTER.

2
  Reference is to State v. Alexander, 310 N.J. Super. 348 (App.
Div. 1998).
3
    Reference is to State v. Cahill, 213 N.J. 253 (2013).

                                          4                                  A-2462-15T1
     Defendant has a constitutional right to a speedy trial.        U.S.

Const. amend. VI; N.J. Const. art. I, ¶ 10.         That right applies

"to quasi-criminal matters pending in the municipal courts," such

as driving while intoxicated cases.     State v. Cahill, supra, 213

N.J. at 267.    When evaluating whether defendant's constitutional

right to a speedy trial has been violated, four factors must be

reviewed and balanced, including: (1) length of delay, (2) reasons

for delay, (3) the defendant's assertion of a speedy trial claim,

and (4) prejudice to the defendant.      Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).        The

Court adopted these factors in Cahill, supra, 213 N.J. at 266.

     The Sixth Amendment right to a speedy trial is different from

the timeframe under the Due Process Clause for "initiating a

criminal   prosecution   after   discovering   an   offense   has   been

committed."    State v. Aguirre, 287 N.J. Super. 128, 131-32 (App.

Div.) (citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.

Ct. 2044, 2048, 52 L. Ed. 2d 752, 758 (1977)) (other citation

omitted), certif. denied, 144 N.J. 585 (1996).       "[P]re-indictment

or pre-arrest delay [is] measured by a far more rigorous standard."

Id. at 132.    "In order to prevail, a defendant must demonstrate

'both that (1) there was no legitimate reason for the delay and

(2) [defendant] was prejudiced thereby.'"       Ibid. (alteration in

original) (citations omitted).

                                   5                            A-2462-15T1
     The distinction arises from the different interests which are

protected.     Id. at 133.    With respect to speedy trial claims,

           arrest or indictment is a public act that may
           severely interfere with the defendant's
           liberty, whether or not he is free on bail,
           and that may disrupt his employment, drain his
           financial      resources,     curtail      his
           associations, create anxiety and subject him
           to public obloquy.      In contrast, the Due
           Process Clause in the context of pre-
           indictment or pre-arrest delay is confined to
           protecting the ability of the defendant to
           mount a defense against the prosecution's
           charges.

           [Ibid. (citation omitted).]

     The trial court erroneously conflated the speedy trial and

due process analyses.    In analyzing Barker factor two, the "reason

for delay," the trial court focused on whether the State had

attempted to gain an advantage over the defendant by its delay, a

concern   expressed   under     the   due   process   line   of   cases.     In

analyzing Barker factor four, whether defendant was prejudiced,

the court concluded defendant had not demonstrated any "actual"

prejudice, which is part of the due process analysis.

     Under Barker, there is no "bright-line rule" to determine

whether the delay in a case is excessive.         Cahill, supra, 213 N.J.

at 258, 277.    A delay exceeding one year prompts our review of the

other Barker factors.        Id. at 266.




                                       6                              A-2462-15T1
     The delay here was twenty-two months measured from the date

of the charges (September 2013) to the date of the guilty plea

(July 2015).      Id. at 272 (calculating "length of the delay" from

the filing of charges "to the notice of trial in the municipal

court of the remanded charge[s]").           Fourteen months of the delay

occurred   when    the   case   was   at    the   prosecutor's   office   for

investigation and before it was recorded by the municipal court

in November 2014.     The court found, without support in the record,

there was no evidence of inattention by the prosecutor's office.

In fact, there was no evidence of attention or inattention.

Defendant acknowledged the remaining six-month delay, from January

to June 2015, was attributable to defense initiated discovery

issues.    Defendant did not assert his right to a speedy trial

until June 4, 2015. Then, although the trial court found prejudice

to defendant based on anxiety suffered waiting for the case to be

heard while the charges were pending, it then asserted defendant

had not shown "actual" prejudice.

    We are constrained to reverse because the trial court raised

the bar too high for defendant.            Because defendant had not shown

actual prejudice beyond anxiety, or proof that the State was trying

to gain advantage over him by delaying the case, which are factors

under the Due Process Clause, it discounted the excessive twenty-

two month delay and the prejudice to defendant by the length of

                                      7                              A-2462-15T1
the delay.     In Cahill, the court found a sixteen-month delay too

long when the case was not complicated, there was no justification

for the delay, and defendant's only proof of prejudice was anxiety.

Id. at 273-75.    Under these facts where the record bespeaks of no

complexity, the case is similar to Cahill, requiring dismissal of

the charges.

     Reversed.




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