                                NOT FOR PUBLICATION WITHOUT THE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-2292-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN M. CAMPBELL,

     Defendant-Appellant.
________________________

                    Submitted January 8, 2019 – Decided May 8, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Municipal Appeal No. 17-
                    018.

                    Ostroff Injury Law, PC, attorneys for appellant (James
                    T. DiMarco, of counsel and on the briefs).

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Elizabeth D. Beaman, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Following his conditional guilty plea to driving while intoxicated,

N.J.S.A. 39:4-50, and failure to report an accident, N.J.S.A. 39:4-130, defendant

Jonathan Campbell appealed to the Law Division from the municipal court's

denial of his motion to dismiss based on speedy trial grounds. The Law Division

judge concluded defendant's speedy trial rights were not violated, denied his

motion to dismiss and entered an order imposing the sentence called for in the

plea agreement. On appeal, defendant argues:

            DEFENDANT WAS DENIED THE RIGHT TO A
            SPEEDY TRIAL AND THE TRIAL COURT ERRED
            IN NOT HOLDING SO.

We agree and reverse.

      The Law Division judge, after she and her court clerk diligently combed

through the Superior Court file and PromisGavel entries, took judicial notice of

those records, N.J.R.E. 201(b), in order to construct a timeline of events because

counsel for both parties "candidly admitted that they were unaware of some of

the reasons for delays in this matter between certain scheduled court dates." In

that neither party contends the timeline sequence found by the judge could not

have reasonably been reached on sufficient, credible evidence in the record,




                                                                          A-2292-17T1
                                        2
State v. Stas, 212 N.J. 37, 49 (2012), we glean some pertinent facts from the

judge's findings.1

      Defendant was arrested on April 27, 2012 for the two motor vehicle

violations to which he pleaded guilty and four other motor vehicle infractions

which were later dismissed as part of the plea agreement. The charges stemmed

from the State's allegation that defendant was driving with a blood alcohol

content of .21 percent – in excess of the legal limit of .08 percent, N.J.S.A. 39:4-

50(a) – crashed into a median injuring a passenger in his vehicle, and left the

scene of the accident. The matter was referred to the Morris County Prosecutor's

Office whereafter defendant was indicted for fourth-degree assault by auto,

N.J.S.A. 2C:12-1(c)(2).2

      Defendant was arraigned on November 13, 2012. Amid a series of status

conferences that commenced on January 28, 2013, defendant filed a motion to

suppress on February 14, 2013 and, on March 25, 2013, the State sought a


1
  We note that, while the findings we cite are, except as noted, undisputed, there
are circumstances that were not considered by the Law Division judge which are
pertinent to evaluating the speedy trial decision. The facts here set forth do not
include those circumstances, established in the record, which we will address in
our analysis.
2
  It is not clear from the record the date on which the indictment was handed
down. The copy of the indictment provided indicates the matter was presented
on August 28, 2012.
                                                                            A-2292-17T1
                                         3
hearing pursuant to Rule 104(c) in order to present defendant's statement as

evidence in its case-in-chief. N.J.R.E. 104(c). Hearings on the motions were

carried at defendant's request from June 2013 to July 2013; and were adjourned

on the rescheduled date at the State's request. Although a status conference was

rescheduled from September 25, 2013 to November 19, 2013, the record is

unclear why the motions were not rescheduled until March 26, 2014. Because

defendant's counsel was in trial on another matter on that date, the motions were

heard on April 24 and May 7, 2014; the judge issued an order resolving them on

May 30, 2014. A trial date of October 6, 2014 was set at a July 30 pretrial

conference, at which defendant indicated his intention to file a motion to dismiss

on speedy trial grounds; that motion was not filed until December 31, 2014. At

a November 3, 2014 pretrial conference, the trial was rescheduled for January

19, 2015.3 Defendant's motion to dismiss was denied on January 20. Trial was

rescheduled for February 17, 2015.

      Setting aside for the moment what caused his action, on the February trial

date, defendant's counsel said he needed a two-month adjournment to seek

approval from the Office of the Public Defender for funds to hire an expert. He



3
 The Law Division judge found the adjourned trial date was January 20, 2015 .
The November 3, 2014 order provides the January 19 date.
                                                                          A-2292-17T1
                                        4
also said he intended to file a motion to dismiss the indictment and for an order

compelling defendant's admission to the pre-trial intervention program sans the

requirement of a guilty plea to driving while intoxicated. The motions were

filed on March 17, 2015. Following a June 8, 2015 court hearing at which

defense counsel failed to appear, the State filed its response on June 12. On that

same date, defense counsel informed the court of his desire that the next status

conference be adjourned to September 2015, to allow him to obtain an expert.

      Both of defendant's motions were denied on September 3, 2015. At

another pretrial conference on October 21, 2015, trial was scheduled for January

11, 2016. The State moved to dismiss the indicted charge on December 22, 2015

and the motor vehicle violations were remanded to municipal court on January

13, 2016.

      Defendant appeared at the first proceeding in municipal court on February

8, 2016, at which his request for the appointment of a public defender was

approved. On June 13, 2016, the matter was scheduled for a special session on

August 8; that date was adjourned to September 19, 2016 by the court. On the

adjourned date, defense counsel requested an adjournment "to obtain a quote

from [an] expert." Trial was scheduled for February 13, 2017.




                                                                          A-2292-17T1
                                        5
      The record contains sparse information related to defendant's municipal

court motion to dismiss on speedy trial grounds. Defense counsel represented

and the municipal court judge confirmed that the motion was not grounded on

any post-remand delay; defendant argued his speedy trial rights were violated

only while the matter was pending in Superior Court. The municipal court judge

began to give an oral decision on February 13, 2017 but, because of a power

outage, was unable to complete placing the decision to deny the motion on the

record until March 20. The trial was then rescheduled for May 15, 2017, on

which date defendant entered a conditional plea of guilty.

      In our review of the decision on a municipal appeal, "[w]e review the

action of the Law Division, not the municipal court." State v. Robertson, 438

N.J. Super. 47, 64 (App. Div. 2014). Our review of the Law Division judge's

denial of defendant's motion to dismiss the remanded charges is de novo because

the challenged decision turns exclusively on issues of law. Stas, 212 N.J. at 49.

We will, however, reverse the denial of a speedy trial motion only where it is

"clearly erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009).

      The four-part test to determine when a violation of a defendant's speedy-

trial rights contravenes due process – announced in Barker v. Wingo, 407 U.S.

514, 530-33 (1972), and adopted by our Supreme Court in State v. Szima, 70


                                                                         A-2292-17T1
                                       6
N.J. 196, 200-01 (1976) – requires "[c]ourts [to] consider and balance the

'[l]ength of delay, the reason for the delay, the defendant's assertion of his right,

and prejudice to the defendant.'" Tsetsekas, 411 N.J. Super. at 8 (third alteration

in original) (quoting Barker, 407 U.S. at 530).

      The Law Division judge aptly found lengthy the delay from defendant's

April 2012 arrest until the entry of his guilty plea in May 2017. The judge,

however, misapprehended that defendant's argument did not include the period

of time following the Law Division's remand in January 2016. Further, the judge

concluded that the length of the delay made it "appropriate to analyze the

remaining Barker factors." Although our Supreme Court has held "once the

delay exceeds one year, it is appropriate to engage in the analysis of the

remaining Barker factors," State v. Cahill, 213 N.J. 253, 265-66 (2013), the

judge was required to weigh the length of the delay. See Tsetsekas, 411 N.J.

Super. at 10 (holding "[n]o single factor is a necessary or sufficient condition to

the finding of a deprivation of the right to a speedy trial"); see also Cahill, 213

N.J. at 267 ("All factors are related, thereby requiring a balancing of all

applicable factors while recognizing the fundamental right bestowed on a

defendant to a speedy trial.").




                                                                             A-2292-17T1
                                         7
      The lapse of almost forty-four months until the indictable charge was

dismissed was inordinately long. The fourth-degree assault by auto charge was

not complex. The State's reason for dismissing the charge is not set forth in the

record before us. Based on the record presented, however, we discern no reason

it should have taken almost four years to reach the conclusion that the charge

should be dismissed. There is no evidence a late defense submission factored

in the State's decision; indeed, as the Law Division judge repeatedly recognized,

defendant never submitted an expert report. The long lapse until dismissal

should have been weighed heavily against the State.

      "Barker's second prong examines the length of a delay in light of the

culpability of the parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407

U.S. at 529). "[D]ifferent weights should be assigned to different reasons"

proffered to justify a delay. Barker, 407 U.S. at 531. Purposeful delay tactics

weigh heavily against the State. Cahill, 213 N.J. at 266 (citing Barker, 407 U.S.

at 531). "A more neutral reason such as negligence or overcrowded courts

should be weighted less heavily but nevertheless should be considered since the

ultimate responsibility for such circumstances must rest with the government

rather than with the defendant." Barker, 407 U.S. at 531; see also Cahill, 253

N.J. at 266. "[A] valid reason, such as a missing witness, should serve to justify


                                                                          A-2292-17T1
                                        8
appropriate delay." Barker, 407 U.S. at 531. And, "[d]elay caused or requested

by the defendant is not considered to weigh in favor of finding a speedy trial

violation." State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999).

      The Law Division judge heavily weighed delays she attributed to

defendant's attempt to secure an expert. The judge, however, did not consider

that the need for the expert was prompted by the State's delivery of calibration

records to defendant on the February 2015 trial date.

      Those calibration records were required to be produced in discovery by

the State as one of the twelve foundation documents set forth in the Supreme

Court's order governing the prosecution of all matters arising pursuant to

N.J.S.A. 39:4-50. State v. Chun, 194 N.J. 54, 153 (2008). Those records were

not, as the State contends, "newly-discovered evidence." They should have been

turned over with the initial discovery package. We note the Law Division judge

handling the case in April 2013 entered a status conference order that provided

all discovery was completed.      If the calibration records had been timely

delivered, it was likely that the February 2015 trial would not have been

adjourned because defendant would have had ample opportunity to seek and

obtain permission from the Office of the Public Defender to hire an expert and

to, thereafter, submit the discovery to that expert and obtain a report. Instead,


                                                                           A-2292-17T1
                                       9
on the trial date defense counsel sought two months just to obtain approval to

hire an expert.

      The Law Division judge found defendant "sought a significant

postponement to secure an expert." That delay should not have been attributed

to defendant. "In representing the State, the prosecutor and the police must

accept responsibility for ensuring a defendant's right to a speedy disposition of

the charges is respected." 4 Tsetsekas, 411 N.J. Super. at 13. "This requires

expediting all necessary discovery . . . ." Ibid. The State precipitated that delay

by failing to comply with the Court's order in Chun. A judge considering a

speedy trial assertion "must account for the provisions of [that] order." Cahill,

213 N.J. at 276.

      We further note the Law Division judge found "defendant was still

seeking time to secure an expert report some two years later, in March[] 2017,

well after the indictable offense had been dismissed and the remaining charges

had been remanded to municipal court." The judge previously observed:

            It is unclear why defendant waited until September
            2016 to tell [the court] he was seeking a quote from an
            expert, in light of predecessor counsel's representation

4
  "If a case is referred to the prosecutor following arrest by a police officer as
the initial process, or on a complaint by a police officer, see R. 3:3-1; R. 3:4-1,
local law enforcement is part of the prosecutor's office for discovery purposes."
State v. W.B., 205 N.J. 588, 608 (2011).
                                                                           A-2292-17T1
                                       10
            to the court in June[] 2015, that he wanted an
            adjournment to obtain his expert's report (versus a
            quote). It is also unclear why, as late as March[] 2017,
            after defendant had filed his third [m]otion to [d]ismiss,
            he still did not have his expert's report.

The judge mentioned on several occasions that defendant had failed to obtain an

expert report after the remand.

      Not only did the judge's analysis consider matters outside the scope of

defendant's pre-remand speedy trial argument, it failed to recognize that

defendant, after remand, was represented by a different public defender –

appointed by the municipality, not the State – who had to obtain discovery and

go through a similar but separate, multi-step process to obtain an expert's report,

as did defendant's public defender in Superior Court.

      The judge also faulted defendant for failing to file a motion for relief from

the joinder of the assault and motor vehicle charges. The fact that defendant did

not file a severance motion had no bearing on the speedy trial analysis. First, a

defendant has no obligation to press for the resolution of his case. Cahill, 213

N.J. at 266. Because that tenet includes asserting a right to a speedy trial, ibid.,

we conclude it also pertains to filing motions to sever a driving-while-

intoxicated charge from an assault by auto.




                                                                            A-2292-17T1
                                        11
       Further, the Cahill Court recognized that when a defendant is charged

with both driving while intoxicated and an indictable offense, "prosecution of

the driving-while-intoxicated charge prior to resolution of the indictable

offense[] raise[s] double jeopardy concerns and the possible dismissal of the

more serious indictable charges." Id. at 273; see also State v. Hand, 416 N.J.

Super. 622 (App. Div. 2010) (barring driving-while-intoxicated prosecution

following guilty plea to fourth-degree creating risk of widespread injury or

death). The Court recognized the sagacity of Directive #04-11 which was

released by the Administrative Office of the Courts in 2011, Cahill, 213 N.J. at

271-72; the Directive provides:

            Unless there is some compelling reason otherwise, a
            Superior Court judge should dispose of all parts of a
            case before the court, including any associated
            municipal court matters. This procedure increases the
            overall efficiency of the court system. It also avoids
            having the defendant appear for a second matter that
            arose out of the same event, thus eliminating potential
            double jeopardy issues. See, e.g., Hand, 416 N.J.
            Super. 622. Indeed, when an indictable offense goes to
            trial, the court is required by Rule 3:15-3 to join any
            pending non-indictable complaint that is based on the
            same conduct or arising from the same episode, unless
            the defendant or the State would be prejudiced by doing
            so. See also R. 3:1-6(a).

            [Administrative Directive #04-11 (July 12, 2011).]



                                                                        A-2292-17T1
                                      12
The Court anticipated that the Directive would limit the remand to municipal

court of charges, such as driving while intoxicated, to rare instances. Cahill,

213 N.J. at 276.

      It took four months from defendant's April 2012 arrest until his indictment

for assault. Just under three months later he was arraigned and the initial status

conference was over two months thereafter in late-January 2013. Defendant

filed a motion to suppress on Valentine's Day 2013. It was scheduled for June

13, 2013 along with the State's Rule 104(c) application, N.J.R.E. 104(c), but was

adjourned for one month at defendant's request.         The State requested an

adjournment of the July 2013 date and over eight months elapsed before the

motions were calendared in March 2014. Because defendant's counsel was in

trial, the motions were adjourned for approximately one month. Hearings were

held on April 24 and May 7, 2014; the judge's dispositive order was filed on

May 30.

      Thus, in the twenty-five months after defendant's arrest, less than two

months delay can be attributed to adjournments requested by defendant. The

reason for the long gap between the State's July 2013 adjournment request and

the next scheduled motion hearing is unexplained; we note two status

conferences were scheduled in September and November 2013.


                                                                          A-2292-17T1
                                       13
      Under similar circumstances, the Cahill Court held that a "lengthy and

unexplained" sixteen-month delay between a remand to municipal court

following a defendant's sentencing for assault by auto and the setting of a

municipal court trial date for the remanded driving-while-intoxicated charge

"weigh[ed] heavily against the State" where "[t]he State offer[ed] no

justification for the delay." 213 N.J. at 273-74.

      It took two months after the motions were decided in May 2014 to set a

trial date for October 6, 2014. The pretrial memorandum memorializing that

trial date, entered on July 30, 2014, indicates defendant's intention to file a

speedy trial motion to dismiss. The October trial date unaccountably passed, a

pretrial conference occurred almost a month later on November 3, and defendant

finally filed his motion to dismiss on December 31, 2014. The period between

the October 6 trial date and the February 2015 trial date, scheduled after

defendant's motion was decided on January 5, 2015, is attributed to defendant;

had the motion be timely filed after the July 30 pretrial conference, it could have

been heard by or on the October 6 trial date.

      We determine the reasons for the delay, in balance, weigh more against

the State, considering the delay attributable to defendant – amounting to less

than six months – is exceeded by that attributable to the State: in July 2013 the


                                                                           A-2292-17T1
                                       14
State requested an adjournment of the Rule 104 and suppression motions that

were not rescheduled until March 2014, and its failure to turn over the

calibration reports until the February 2015 trial date.

      Defendant's "assertion of [his] right to a speedy trial is measured heavily

in the speedy trial analysis." Cahill, 213 N.J. at 274. Because we consider "the

frequency and force of the [defendant's] objections" in assessing whether the

defendant properly invoked the right, Barker, 407 U.S. at 529, we determine this

factor inures to defendant's benefit. Defendant filed motions to dismiss on

speedy trial grounds twice in the Superior Court: on December 31, 2014 and

March 17, 2015. 5 The weight given to the factor is somewhat buffered by

defendant's delay in filing the December 2014 motion.          We do not agree,

however, with the Law Division's ruling that limited weight should be accorded

this factor because defendant was "not prepared to go to trial without his expert

and only advised the court of his need for one in February[] 2015." Again, the

State's failure to turn over the calibration records caused that delay.

      The fourth prong of the Barker test considers the prejudice "in the context

of the interests the right is designed to protect.        Those interests include


5
  Defendant also asserts he filed another such motion on February 13, 2017 in
the municipal court but his argument is limited to delays prior to the remand.
As such, we will not consider that assertion of his speedy trial rights.
                                                                          A-2292-17T1
                                       15
prevention of oppressive incarceration, minimization of anxiety attributable to

unresolved charges, and limitation of the possibility of impairment of the

defense." Cahill, 213 N.J. at 266 (citation omitted). Although, as here, the delay

may not prejudice a

            defendant's liberty interest or his ability to defend on
            the merits[,] . . . significant prejudice may . . . arise
            when the delay causes the loss of employment or other
            opportunities, humiliation, the anxiety in awaiting
            disposition of the pending charges . . . and the "other
            costs and inconveniences far in excess of what would
            have been reasonable under more acceptable
            circumstances."

            [Tsetsekas, 411 N.J. Super. at 13 (quoting Farrell, 320
            N.J. Super. at 452).]

      Defendant reprises his argument to the Law Division that the delay

"weighed heavily" upon him, "affecting his work, emotional state and cust ody

arrangement with his son." The Law Division judge agreed with the State that

defendant "advanced no proofs to support his claim of prejudice or anxiety."

"[P]roof of actual trial prejudice [however] is not 'a necessary condition

precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, 411 N.J.

Super. at 13-14 (quoting State v. Merlino, 153 N.J. Super. 12, 15-16 (App. Div.

1977)). The Court in Cahill observed:

            A speedy trial violation can be established without
            evidence of prejudice. Farrell, 320 N.J. Super. at 446.

                                                                          A-2292-17T1
                                       16
            Some authorities even suggest that every unresolved
            case carries with it some measure of anxiety. See, e.g.,
            Szima, 70 N.J. at 206 ("[T]he defendant automatically
            endures 'restraints on his liberty' and lives 'under a
            cloud of anxiety, suspicion, and often hostility.'"
            (quoting Barker, 407 U.S. at 533)); Hanrahan v. United
            States, 348 F.2d 363, 366-67 (D.C. Cir. 1965) ("Speedy
            trial provisions seek . . . to minimize the anxiety and
            attendant evils which are invariably visited upon one
            under public accusation but not tried.").

            [213 N.J. at 274-75.]

      Defendant does not present any evidence establishing he suffered a

particular prejudice as a result of the delays prior to remand. But, prejudice is

not required to establish a speedy trial violation, id. at 274, and "[w]e must

assume that any person who has had limited involvement with the criminal

justice system . . . experience[s] some measure of anxiety by the existence of a

pending and long-unresolved charge[,] . . . particularly . . . when one of the

sanctions, a license suspension, would have a dramatic impact on defendant's

daily activities and ability to earn a living," id. at 275. Although we consider

the absence of evidence showing actual prejudice in our analysis of this factor,

we find the lengthy delay caused some prejudice and disagree with the Law

Division judge that this "factor does not weigh in favor of a speedy trial

violation." We deem it entitled to at least some weight in defendant's favor.



                                                                         A-2292-17T1
                                      17
      Balancing the four factors and the specific facts of this case, we conclude

the State violated defendant's right to a speedy trial. Accordingly, we are

constrained to vacate defendant's plea to driving while intoxicated, dismiss that

charge, and remand this matter to the Law Division for entry of an order of

dismissal.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-2292-17T1
                                      18
