               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5648-18T4

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             December 2, 2019

v.                                        APPELLATE DIVISION


ANTOINE WILLIAMS,

     Defendant-Appellant.
_________________________

           Argued October 29, 2019 – Decided December 2, 2019

           Before Judges Fisher, Gilson and Rose.

           On appeal from the Superior Court of New Jersey,
           Law Division, Middlesex County, Indictment Nos. 18-
           02-0353 and 18-02-0354.

           Joseph M. Mazraani argued the cause for appellant
           (Mazraani & Liguori LLP, attorneys; Joseph M.
           Mazraani, of counsel; Jeffrey S. Farmer, of counsel
           and on the briefs).

           David Michael Liston, Special Deputy Attorney
           General/Acting Assistant Prosecutor, argued the cause
           for respondent (Christopher L.C. Kuberiet, Acting
           Middlesex County Prosecutor, attorney; Joie D.
           Piderit, Special Deputy Attorney General/Acting
           Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by
FISHER, P.J.A.D.

         Defendant was indicted for attempted murder and weapons offenses on

February 23, 2018. He has been incarcerated since December 1, 2017. Under

the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, an incarcerated

defendant is entitled to a speedy trial within a set period of time "not counting

excludable time for reasonable delays." N.J.S.A. 2A:162-22(a)(2)(a). What

constitutes excludable time is circumscribed by N.J.S.A. 2A:162-22(b) and

Rule 3:25-4. We granted defendant's motion for leave to appeal to examine

interlocutory orders that declared both the amount of excludable time

warranted by certain pretrial motions and, of greater interest here, the range of

dates during which that excludable time applied. Because the motion judge

ran the excludable time periods back to back, and not in accordance with the

unambiguous declarations in the Act and applicable court rule, we reverse and

remand.

         In particular, we examine orders granting excludable time arising from

two pretrial motions, one filed by co-defendant Pinson and the other by the

State.     Pinson's suppression motion was filed on September 5, 2018, and

decided on May 14, 2019,1 while the State's joinder motion was filed on


1
  By way of another opinion also filed today, we reverse an order granting the
suppression motion. See State v. Pinson, __ N.J. Super. __ (App. Div. 2019).


                                                                         A-5648-18T4
                                        2
November 16, 2018, and decided on February 26, 2019. As these filing and

disposition dates reveal, the motions overlapped; for a time – from November

16, 2018, to February 26, 2019 – both motions were pending simultaneously.

      On January 9, 2019, the trial judge entered two orders. In one order, the

judge allowed sixty days – from November 9, 2018, to January 7, 2019 – as

excludable time for the State's joinder motion. In the other, the judge found

forty-four days – from January 8, 2019, to February 20, 2019 – as excludable

time for the suppression motion. By way of a later order, the judge allowed an

additional forty-five days – from February 27, 2019, to April 12, 2019 – as

additional excludable time for the suppression motion. In short, rather than

declare that the excludable time periods commenced on each motion's filing

date, the judge applied those periods in installments, not starting one until the

other was completed.

      Defendant's quarrel with these orders is not with the amount of time

found excludable, but with the judge's stacking of the excludable time by

disregarding that the motions were, for a while, pending at the same time.

Stated another way, defendant argues that the statutory and rule-based fixing

of excludable time for an eligible pretrial motion commences when the motion

is "fil[ed]," as both N.J.S.A. 2A:162-22(b)(1)(c) and Rule 3:25-4(i)(3) declare.

See also State v. Forchion, 451 N.J. Super. 474, 479 (App. Div. 2017).



                                                                        A-5648-18T4
                                       3
Defendant argues that these authorities do not allow for a reservation of

excludable time that would have already run – but simultaneously with other

excludable time – for a later date in order to extend a defendant's time in jail.

         We agree with defendant. There is a dearth of case law on this subject,

but that may only be because N.J.S.A. 2A:162-22(b)(1)(c) and Rule 3:25-

4(i)(3) unambiguously command that the excludable time begins to run with

the eligible pretrial motion's "filing" date.     There can be no doubt about

defendant's entitlement to relief from the orders under review; the filing of

multiple, overlapping motions does not provide a trial court with the discretion

to stack excludable time periods so as to prolong the time within which a

defendant must be tried or released. See United States v. Rodriguez, 63 F.3d

1159, 1165 n.3 (1st Cir. 1995).

         So, it is not surprising the State offers no contrary analysis of the

applicable statutes and rules.     Instead, the State contends that the judge

declared this matter as a "complex" case, as if that designation absolves all

error about excludable time. To be sure, on September 25, 2018, the judge

entered an order that declared a period of excludable time from July 28, 2018

through November 8, 2018, based on a finding that "the case is a complex

case."     The State interprets this to mean that the purported complexity

"obviates" all other excludable time issues and that whatever the judge did



                                                                          A-5648-18T4
                                        4
with the excludable time periods here in question "is immaterial." While we

have not been asked to consider the judge's recognition of the case as complex

in her September 25, 2018 order, it doesn't matter. The judge then found that

the matter's complexity justified a finding of excludable time only from July

28, 2018 through November 8, 2018. That determination has no bearing on the

fixing of excludable time for the suppression or joinder motions even if the

approximate last two months of the excludable time generated by the alleged

complexity overlapped with the approximate first two months of the

excludable time warranted by the suppression motion. 2

      In short, the applicable statute and rule make clear that the State does not

get to bank an extra day of excludable time for every day of excludable time

generated by multiple excludable events. If there are two reasons to exclude a

given day from the period of time within which a defendant must be brought to

trial or released, the trial court did not have the authority to provide the State

with an extra day of excludable time at a later time.

                                      ***




2
   In the graph appended, we compare the judge's stacking of the excludable
time periods with the way these excludable time periods should have been
sequenced. As can be seen, the judge's error mistakenly allowed the
prosecution eighty-two more days of excludable time than permissible.


                                                                         A-5648-18T4
                                        5
      The orders that declared the excludable time for the suppression motion

commenced on any date other than its filing date – September 5, 2018 – are

reversed. We remand for the entry of an order fixing that filing date as the

start date of the excludable time for the suppression motion. We do not retain

jurisdiction.




                                                                      A-5648-18T4
                                      6
                 July   Aug.    Sept.      Oct.           Nov.        Dec.         Jan.     Feb.          Mar.     Apr.
                 2018   2018    2018       2018           2018        2018         2019     2019          2019     2019


                                                                               Suppression Order
  Excludable               Complex Order                                           44 days
     Time per                104 days
                 7/28                             11/8       11/9            1/7    1/8    2/20    2/27             4/12
 Trial Judge's                                                   Joinder Order                      Suppression Order
        Orders                                                      60 days                             45 days


                                                             253 days




                           Complex Order
  Excludable                  104 days
                 7/28                                 11/8
Time as Trial                               Suppression Order
Judge Should                                     89 days
Have Ordered                       9/5                                  12/2

                                                                    Joinder Order
                                                                       60 days
                                                           11/16                    1/14



                                           171 days



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