                        NOT FOR PUBLICATION WITHOUT THE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-2760-14T4
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RASHAN CALDWELL a/k/a RASHAUN
CALDWELL, CHRIS CALDWELL,
RASHAWN CALDWELL, RASHAN
HICKENBOTTOM, RASHAN
HICKENBOTTON,

     Defendant-Appellant.
______________________________________

              Submitted November 30, 2016 – Decided September 1, 2017

              Before Judges Fuentes and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Morris County,
              Indictment No. 13-06-0797.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Al Glimis, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney   for  respondent   (Paula  Jordao,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Rashan Caldwell appeals from a December 9, 2014

judgment of conviction for first-degree possession of a controlled
dangerous substance (CDS) with intent to distribute, N.J.S.A.

2C:35-5(b)(1), and second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-4(a)(1), charged in counts thirty-two and sixty-

six, respectively, of Indictment No. 13-06-0797.    Pre-indictment,

pursuant to Rule 3:25-3, defendant moved to dismiss the complaints

containing the charges that were later subsumed into Indictment

No. 13-06-0797 for unreasonable delay in presenting the charges

to a grand jury.   After his motion was denied and Indictment No.

13-06-0797 was returned, defendant entered a negotiated guilty

plea on September 10, 2014, and expressly reserved the right to

appeal the denial of his speedy trial motion.      In exchange, the

State agreed to move the dismissal of the remaining fifty-three

counts of the indictment,1 as well as the dismissal of a second


1
  The dismissed counts consisted of first-degree leader of a
narcotics trafficking network, N.J.S.A. 2C:35-3; ten counts of
second-degree conspiracy to possess CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(2) and N.J.S.A. 2C:5-2; ten
counts of second-degree conspiracy to distribute CDS, N.J.S.A.
2C:35-5(a)(1) and -5(b)(2) and N.J.S.A. 2C:5-2; four counts of
third-degree conspiracy to possess CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) and N.J.S.A. 2C:5-2; two
counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1);
third-degree conspiracy to possess CDS, N.J.S.A. 2C:35-10(a)(1)
and N.J.S.A. 2C:5-2; second-degree possession of CDS with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2); first-degree
maintaining/operating a CDS production facility, N.J.S.A. 2C:35-
4; four counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(2); four counts of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); four
counts of second-degree certain persons not to possess a firearm,


                                2                           A-2760-14T4
indictment, Indictment No. 10-10-1148 (the 2010 indictment),2 in

its entirety.   The State also agreed to recommend an eleven-year

term   of   imprisonment   with   a   five-year   period   of    parole

ineligibility on count thirty-two, and a concurrent eight-year

term   of   imprisonment   with   a   four-year   period   of    parole

ineligibility on count sixty-six.     On November 21, 2014, defendant

was sentenced in accordance with the plea agreement.       On appeal,

defendant argues the trial court erred in denying his speedy trial

motion and urges dismissal of Indictment No. 13-06-0797.               We

disagree and affirm.




N.J.S.A. 2C:39-7(b); three counts of second-degree possession of
a firearm while in the course of committing or conspiring to commit
a CDS offense, N.J.S.A. 2C:35-5 and 2C:39-4.1(a); two counts of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two
counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and
2C:11-3; third degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2); fourth-degree conspiracy to unlawfully
transport a firearm, N.J.S.A. 2C:39-9(d) and 2C:5-2; second-degree
conspiracy to witness tamper, N.J.S.A. 2C:28-5(a) and 2C:5-2; and
third-degree bail jumping, N.J.S.A. 2C:29-7.
2
  Indictment No. 10-10-1148 charged defendant with third-degree
possession   of   CDS,  N.J.S.A.   2C:35-10(a)(1);   third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and -5(b)(3); third-degree distribution of CDS, N.J.S.A.
2C:35-5(a)(1) and -5(b)(3); third-degree conspiracy to possess
CDS, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:5-2; third-degree
conspiracy to possess CDS with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and -5(b)(3) and N.J.S.A. 2C:5-2; and third-degree
conspiracy to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3)
and N.J.S.A. 2C:5-2.

                                  3                             A-2760-14T4
      On November 4, 2010, the 2010 indictment was returned against

defendant and a co-defendant.         Defendant was arrested, posted bail

and was released.      On June 1, 2012, while the 2010 indictment was

pending, defendant was arrested and held on multiple warrant-

complaints charging him with over thirty-two offenses, including

first   and    second-degree     drugs      and    weapons    related      offenses

stemming from allegations that defendant was the leader of a

narcotics     trafficking     network    and      was   involved     in   the    2011

attempted murder of two people.             Twenty-eight others were also

arrested and charged by way of complaint in connection with the

allegations.     Defendant's bail was set at $1 million but defendant

was unable to post bail and remained incarcerated.

      On March 11, 2013, defendant moved to dismiss the complaints

pursuant to Rule 3:25-3.         Although defense counsel acknowledged

that he had received "a substantial amount of discovery" amounting

to   "well    over   2,000,   maybe     3,000,     pages"     of    pre-indictment

discovery including "thousands of hours of . . . tapes, many, many

wiretaps,     many   applications     for    a    wiretap,"    in    a    case   that

"promises to be an extremely complicated and lengthy case[,]" he

urged the judge to dismiss the complaints based on the unreasonable

delay in presenting the case to a grand jury.

      On June 10, 2013, following oral argument, Judge Mary Gibbons

Whipple denied defendant's motion in an oral opinion.                      Applying

                                        4                                    A-2760-14T4
the four-factor test enunciated in Barker v. Wingo, 407 U.S. 514,

92   S.   Ct.   2182,   33   L.    Ed.   2d   101   (1972),   the   judge     first

acknowledged that the delay was substantial and that defendant did

not contribute to the delay.             The judge noted that "a year and

nine days passed between the . . . arrest" and the date the motion

was heard.      However, the judge pointed out that "there are cases

where . . . a significantly longer period of time has not been

found to be in violation of defendant's right to a speedy trial"

and while "the delay here . . . tips slightly to the defendant's

favor[, it] is not determinative . . . [a]nd the other three

factors have to be considered."

      Next, the judge considered the reason for the delay, noting

that "[d]elays of scheduling and other failures . . . of the

process for which the trial court itself was responsible are

attributable to the State and not to the defendant."                However, the

judge concluded that there were no "purposeful delays . . . on the

part of the State[.]"             While the judge acknowledged that "[a]

defendant has no duty to bring himself to trial" and considered

the fact that defendant was incarcerated while the charges were

pending, "the court recognize[d] that this [was] a complex case"

and "[did] not think that the State ha[d] been sitting on their

hands."    Rather, according to the judge, in light of the fact that

there were "[t]wenty-nine people . . . charged, all facing various

                                         5                                  A-2760-14T4
degrees of . . . charges with . . . offers . . . extended in every

single case[,]" the State had "been trying to get the matter

resolved."    The judge was satisfied that the State had "been

actively   litigating   the   case"   and   pointed   out   that    "[t]he

investigation has been ongoing."

     Next, considering defendant's assertion of his right, the

judge found that, while "[t]here's no requirement that a defendant

demand to be indicted[,]"     defendant did not contribute "to the

delay here" and this was not "a factor that [could] be used against

the defendant in any way."     However, since the State did not use

purposeful delay tactics, the judge considered this a "neutral"

factor.

     Finally, as to prejudice to defendant, the judge explained:

           [T]his is the most important factor. . . .

                [Defendant] is incarcerated, has been
           incarcerated for over a year . . . and that
           is not insignificant.

                Under Barker, the courts were advised to
           consider whether there was oppressive pre-
           trial incarceration, anxiety and concern over
           the outcome, and whether his ability to defend
           was impaired.

                Certainly, he has been in jail. Bail was
           set.   It was high bail.      He has had the
           assistance of counsel from the very beginning.
           He has not suffered a loss of an opportunity
           . . . to defend the case.



                                  6                                A-2760-14T4
               [W]hile he's indicated that he has some
          impairments on his ability to do legal
          research, he has had the ability to review
          evidence. And while it may not be the most
          accessible   library,   he  does   have  some
          accessibility to the library at the jail. And
          he does have an ongoing ability to consult
          with his counsel.     And I do not find that
          . . . the prejudice in his case is
          overwhelming.

     The judge resolved:

               [S]o in conclusion, . . . I do not think
          that [defendant] [has] been able to prevail.
          There's been no indication by [defendant] that
          . . . [his] ability to proceed to defend the
          case has been compromised by the loss of
          witnesses, faded memories.

               I know it's been suggested, but no one's
          really . . . given me anything to . . . make
          a finding with regard to that.

               It is a complex case, which everyone
          acknowledges.   I also note for the record
          that, as I previously indicated, . . . I don't
          expect the delay past indictment to be
          extensive.    They're going to the [g]rand
          [j]ury, I believe, this week to seek
          indictments. And the case will be proceeding
          on a faster track after that.

     Approximately one month later, on July 2, 2013, Indictment

No. 13-06-0797 was returned charging defendant and fourteen others

in a seventy-seven count indictment.   The indictment incorporated

the offenses previously contained in the complaints.   On appeal,

defendant raises a single argument for our consideration:




                                7                           A-2760-14T4
           POINT I

           THE TRIAL JUDGE ERRED IN DENYING [DEFENDANT'S]
           MOTION FOR DISMISSAL PURSUANT TO R. 3:25-3
           BECAUSE THERE WAS AN UNREASONABLE DELAY IN
           PRESENTING THIS MATTER TO THE GRAND JURY.

     Defendant argues that the thirteen months he remained in jail

between his arrest and indictment prejudiced his ability to prepare

a defense because, although he was represented by counsel, he was

"unable   to   fully    investigate    his     case    and   file   appropriate

motions[,]" and had "limited access" to the law library and

difficulty contacting "family members."               In addition, defendant

argues that the judge erred in finding "that the State's delay in

moving the case was not purposeful" because "[t]he State had no

compelling reason to explain the unreasonable delay of one year."

We disagree and affirm substantially for the reasons set forth by

Judge Gibbons Whipple in her well-reasoned oral opinion.                We add

only the following brief comments.

     Rule 3:25-3 permits a defendant to seek dismissal of an

indictment, and further permits the court to do so sua sponte,

when "there is an unreasonable delay in presenting the charge to

a grand jury[.]"     Determination of what is an "unreasonable" delay

rests   upon   "an     ad   hoc   balancing    test"    that   evaluates     the

idiosyncratic facts of each case.             State v. Szima, 70 N.J. 196,




                                       8                                A-2760-14T4
201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180

(1976).

     In State v. Cahill, 213 N.J. 253, 258 (2013), the Court

reiterated "that the four-factor balancing analysis of [Barker,

supra], remains the governing standard to evaluate claims of a

denial of the federal and state constitutional right to a speedy

trial . . . ."      Those four factors are: "length of the delay,

reason for the delay, assertion of the right by a defendant, and

prejudice to the defendant."     Id. at 264 (citing Barker, supra,

407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117).

     In certain cases, the length of the delay may cross the

threshold between ordinary and "presumptively prejudicial" and

trigger the need to engage in the balancing test.    Barker, supra,

407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.     Such

an inquiry is "dependent upon the peculiar circumstances of the

case."    Ibid.   Thus, a longer delay may be tolerated where it is

the result of "the complexity of the subject matter of the case"

and not the prosecution's attempt to impair the defendant's right

to defend.    State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div.

2002) (holding that a seventeen-month delay due to the complexity

of the case was not unreasonable); see also Barker, supra, 407

U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 (noting, for

example, that "the delay that can be tolerated for an ordinary

                                  9                         A-2760-14T4
street crime is considerably less than for a serious, complex

conspiracy charge").

     With regard to the second factor, "different weights should

be assigned to different reasons" for the State's delay.         Barker,

supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.

Deliberate delays intended to prejudice the defendant will weigh

heavily   against   the   State.     Ibid.   Neutral   delays,   such   as

scheduling, are considered against the State but carry less weight

than intentional delays.     Ibid.

     The third factor considers if and when the defendant asserted

his right to a speedy trial.       A defendant is under no obligation

to do so, as it is the State's "responsibility to prosecute cases

in a timely fashion."      Cahill, supra, 213 N.J. at 266 (citation

omitted).   However, in assessing the prejudice to defendant caused

by the delay, the court may consider whether he asserted his right

because "[t]he defendant's assertion of his speedy trial right

. . . is entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right."           Barker,

supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at

117-18.

     The fourth and final factor, "prejudice[,] was said to include

oppressive pretrial incarceration, anxiety and concern of the

accused and impairment of the defense.        Of these, impairment of

                                   10                            A-2760-14T4
the defense was considered the most serious since it went to the

question of fundamental fairness."   Szima, supra, 70 N.J. at 201.

     "None of the Barker factors is determinative, and the absence

of one or some of the factors is not conclusive of the ultimate

determination of whether the right has been violated."    Cahill,

supra, 213 N.J. at 267 (citation omitted).     "[T]he factors are

interrelated, and each must be considered in light of the relevant

circumstances of each particular case." State v. Tsetsekas, 411

N.J. Super. 1, 10 (App. Div. 2009) (citation omitted).       "[W]e

reverse only if the court's determination is clearly erroneous."

Ibid. (citation omitted).

     Applying those principles, we discern no error in the judge's

decision.   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

argument on appeal.

     Affirmed.




                               11                          A-2760-14T4
