                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5350-16T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

JASON BLOCK,

     Defendant-Respondent/
     Cross-Appellant.
______________________________

                    Submitted October 11, 2018 – Decided November 29, 2018

                    Before Judges Accurso and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 14-09-
                    0146.

                    Gurbir S. Grewal, Attorney General, attorney for
                    appellant/cross-respondent (Marie G. McGovern,
                    Deputy Attorney General, of counsel; Thomas Huynh,
                    Deputy Attorney General, on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent/cross-appellant (John W. Douard, Assistant
                    Deputy Public Defender, of counsel and on the brief).
PER CURIAM

      The State appeals from the trial court's order dismissing without prejudice

the indictment against Jason Block on speedy-trial grounds; it argues:


            POINT I

            THE TRIAL COURT CLEARLY ERRED WHEN IT
            DISMISSED THE INDICTMENT FOR VIOLATING
            DEFENDANT'S RIGHT TO A SPEEDY TRIAL
            UNDER RULE 3:25-3 BECAUSE THE STATE DID
            NOT UNREASONABLY DELAY IN PROSECUTING
            THIS   CASE    AND    DEFENDANT    WAS
            RESPONSIBLE FOR MANY DELAYS.

                A.   NEW JERSEY COURTS DETERMINE IF
            A DELAY VIOLATES A DEFENDANT'S RIGHT TO
            A SPEEDY TRIAL UNDER RULE 3:25-3 BY
            EXAMINING THE LENGTH OF THE DELAY, THE
            REASON FOR THE DELAY, THE ASSERTION OF
            THE RIGHT BY THE DEFENDANT, AND THE
            PREJUDICE TO THE DEFENDANT.

                B.   THE TRIAL COURT CLEARLY ERRED
            WHEN IT ATTRIBUTED A DELAY OF THIRTY-
            THREE MONTHS TO THE STATE BECAUSE
            DEFENDANT'S TWO MOTIONS AND HIS TARDY
            THIRD PARTY DEFENSE CONTRIBUTED TO THE
            DELAYS.

                C.  DEFENDANT DID NOT CLAIM HIS
            RIGHT TO A SPEEDY TRIAL WAS VIOLATED
            UNTIL TWO YEARS AFTER INDICTMENT, AND
            HE EQUIVOCATED WHILE BRINGING THE
            MOTION.

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                                       2
                 D. DEFENDANT'S RIGHT TO A SPEEDY
            TRIAL WAS CLEARLY NOT PREJUDICED
            BECAUSE HE WAS NOT INCARCERATED, HIS
            DEFENSE   WAS   NOT   IMPAIRED,   AND
            DEFENDANT NEVER EXPLAINED HOW THE
            INDICTMENT PREVENTED HIM FROM FINDING
            WORK OR CAUSED HIM MENTAL ANGUISH.

Defendant cross-appeals, contending the trial court should have dismissed the

indictment with prejudice. We are constrained to reverse and remand this case

for the trial court to complete a thorough analysis and balance of the factors that

relate to a motion to dismiss on speedy-trial grounds.

      On October 24, 2013, defendant was arrested and charged with: second-

degree endangering the welfare of a child – offering of child pornography,

N.J.S.A. 2C:24-4(b)(5)(a); third-degree endangering the welfare of a child –

possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b); and third-degree

computer theft – unauthorized access, N.J.S.A. 2C:20-25(a). An indictment,

returned September 28, 2014, charged defendant with: second-degree

endangering the welfare of a child – distribution of child pornography, N.J.S.A.

2C:24-4(b)(5)(a) (count one); second-degree endangering the welfare of a child

– distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(iii) (count two);

and third-degree endangering the welfare of a child – possession of child



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                                        3
pornography, N.J.S.A. 2C:24-4(b)(5)(b) (count three). In granting defendant's

June 30, 2017 motion to dismiss, the trial court orally ruled:

            The [c]ourt has to consider four factors; the length of
            the delay, the reasons for the delay, defendant's
            assertions of his rights and prejudice to the defendant.

            The length of delay in this case has been [thirty-three]
            months and counting. It's been three years. There's
            been a couple defense motions, but even with the two
            defense motions the delay has been substantial.

            The reason for delays are discovery issues that lay at
            the feet of the State. Defendant has asserted his right
            to a speedy trial and the [c]ourt finds that there is
            prejudice to the defendant. While defendant is not
            incarcerated, which would certainly indicate there's a
            clear prejudice, but defendant is prejudiced
            nevertheless.

            The weight of having an indictment over his head for a
            substantial period of time curtails his ability to find
            adequate employment. He's still on bail conditions
            unnecessarily restricting his liberty. He's presumed
            innocent, but he has been proceeding the last three
            years under the weight of this indictment and the State
            has delayed in bringing this case to a trial or to
            conclusion.

            And so for all those reasons the State -- the [c]ourt finds
            the State violated defendant's speedy trial protections
            and will dismiss without prejudice.

      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.


                                                                          A-5350-16T2
                                        4
514, 530-33 (1972) and subsequently adopted by our Supreme Court in State v.

Szima, 70 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.'" State v. Tsetsekas, 411 N.J. Super.

1, 8 (App. Div. 2009) (third alteration in original) (quoting Barker, 407 U.S. at

530). "No single factor is a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." Id. at 10. Our Supreme Court has

"decline[d] to adopt a rigid bright-line try-or-dismiss rule," instead continuing

its commitment to a "case-by-case analysis," under the Barker balancing test; it

has acknowledged "that facts of an individual case are the best indicators of

whether a right to a speedy trial has been violated." State v. Cahill, 213 N.J.

253, 270-71 (2013).

      Inasmuch as we are remanding this matter for the trial court to conduct

such an analysis, we review each factor to offer some guidance in completing

that task.

      The first factor – the length of time – is a "triggering mechanism" and

"[u]ntil there is some delay which is presumptively prejudicial, there is no

necessity" for the court to balance the other factors. Barker, 407 U.S. at 530.

"[T]he length of delay that will provoke such an inquiry is necessarily dependent


                                                                           A-5350-16T2
                                        5
upon the peculiar circumstances of the case." Id. at 530-31 (footnote omitted)

(adding "the delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge"). Although the

length of time this matter has been pending is obviously long, the trial court

should consider the passage of time not from the date of indictment as it did, but

from defendant's arrest. State v. Fulford, 349 N.J. Super. 183, 190 (App. Div.

2002) (citing Szima, 70 N.J. at 199-200). The court should also factor the

complexity of the case, if and to the extent it so finds.

      "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). Trial courts, in reviewing "the chronology of the delay," should

"divide the time into discrete periods of delay" and attribute each delay to the

State, defendant or the judiciary. State v. May, 362 N.J. Super. 572, 596, 600

(App. Div. 2003) (affirming a trial court which examined the chronology of the

case as discrete periods of delay). Thereafter, "different 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. Tsetsekas, 411

N.J. Super. at 12 (citing Barker, 407 U.S. at 531). "A more neutral reason such

as negligence or overcrowded courts should be weighted less heavily but


                                                                          A-5350-16T2
                                         6
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. "[A] valid reason, such as a missing witness, should

serve to justify appropriate delay." Ibid. 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) (first

citing State v. Gallegan, 117 N.J. 345, 355 (1989) and then citing State v.

Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996)).          The trial court, in

concluding "[t]he reason for delays are discovery issues that lay at the feet of

the State," did not conduct the required analysis.

       In completing the foregoing second-prong analysis, the trial court must

categorize, attribute and weigh the circumstances and court proceedings that

transpired during the pendency of this case including: the filing, hearing and

decision dates relating to defendant's motion to suppress items seized from his

home and Miranda motion; 1 the discovery periods related to defendant's third-

party defense, including the State's emergent request to the Regional Forensics

Laboratory for a study of defendant's computer; and the State's requests related

to the investigation of the Canadian dating website. That analysis should include


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-5350-16T2
                                        7
the timing of investigation and discovery requests, the complexities of those

investigations and requests, see, e.g., State v. Gaikwad, 349 N.J. Super. 62, 88

(App. Div. 2002) (observing the delay in a computer crimes case "appears to

have been the result of the complexity of the subject matter of the case and not

'[a] deliberate attempt to delay the trial in order to hamper the defense'" (quoting

Barker, 407 U.S. at 531)), and the impact of outside factors on any investigation

or discovery request, such as the procedures required under the Treaty on Mutual

Legal Assistance in Criminal Matters and guidelines applicable thereto; the

court should also consider the diligence with which investigations and discovery

requests were pursued. So too, the trial court should consider the outcomes of

any discovery request or investigation, including the benefit provided to each

party; that is, whether further criminal charges were revealed or information

regarding a third-party defense resulted. Of course, we do not limit the court's

analysis to these areas. All delays, such as those caused by substitution of

counsel, adjournment requests or any other reason, should receive a thorough

review.

      In analyzing a defendant's assertion of speedy-trial rights, a court may

consider "the frequency and force of the [defendant's] objections" when

assessing whether the defendant properly invoked the right. Barker, 407 U.S. at


                                                                            A-5350-16T2
                                         8
529. This third factor "is closely related to the other factors" and "is entitled to

strong evidentiary weight in determining whether the defendant is being

deprived of the right." Barker, 407 U.S. at 531-32. We note defendant did not

move to dismiss the indictment until the State completed the investigation of his

third-party defense and was about to seek a superseding indictment charging

new crimes. The court should consider defendant's reasons – including possible

tactical reasons – for refraining from asserting his speedy-trial rights until the

State completed that investigation. The trial court's analysis must extend beyond

merely concluding that defendant asserted his rights.

      The fourth prong of the Barker test considers the prejudice to a defendant

caused by delay. "[P]roof of actual trial prejudice 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 (App. Div.

1977)). Although the delay may not prejudice a

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


                                                                            A-5350-16T2
                                         9
              [Id. at 13 (quoting Farrell, 320 N.J. Super. at 452).]

The impairment of an accused's defense is considered "the most serious since it

[goes] to the question of fundamental fairness." Szima, 70 N.J. at 201.

        The trial court found "the weight of having an indictment over his head

for a substantial period of time curtail[ed] [defendant's] ability to find adequate

employment. He's still on bail conditions unnecessarily restricting his liberty."2

The court did not, however, set forth the factual basis for its findings or analyze

the prejudice or lack thereof to defendant's case, e.g., any impact on witnesses

or his defense; did not say how the delay curtailed defendant's "ability to find

adequate employment"; or recognize the difference between personal hardship

– considering he was on bail – and prejudice to defendant's case. Such details

are important because "facts of an individual case are the best indicators of

whether a right to a speedy trial has been violated." Cahill, 213 N.J. at 270.

Moreover, a defendant "must present concrete evidence showing material harm"

because "actual prejudice, not possible or presumed prejudice, is required to

support a due process claim." State v. Aguirre, 287 N.J. Super. 128, 133-35

(App. Div. 1996) (finding defendant failed to present evidence of actual

prejudice beyond a "conclusory claim that witnesses became unavailable").


2
    This was a pre-bail reform case.
                                                                           A-5350-16T2
                                        10
      In May, we determined the trial court "did not err in its consideration and

application of the four Barker factors in denying defendant's motion to dismiss

the indictment on speedy-trial grounds." 362 N.J. Super. at 600. We concluded

the trial court properly found defendant did not meet the prejudice prong

because, although defendant experienced the “personal hardship of having the

crime hanging over him for the preceding two years . . . [,] the delay had no

adverse impact on his ability to defend." Id. at 599. Indeed, we held the trial's

delay was an advantage to defendant because "[i]t provided him with a

[previously unavailable] defense to the crimes charged against him."            Ibid.

While we do not suggest any particular result to the trial court, it is required to

perform a similar fact-sensitive analysis, and to set forth its specific findings of

facts and conclusions of law. R. 1:7-4(a). "[T]he difficult task of balancing all

the relevant factors relating to the respective interests of the State and the

defendant[]," and applying the court's "subjective reactions to the particular

circumstances [to] arrive[] at a just conclusion" is delegated to the trial judge.

Merlino, 153 N.J. Super. at 17.

      If the trial court, after completing its task, determines that dismissal of the

indictment is warranted, we note the United States Supreme Court recognized

that a speedy-trial violation "leads to the unsatisfactorily severe remedy of


                                                                             A-5350-16T2
                                        11
dismissal of the indictment . . . This is indeed a serious consequence because it

means that a defendant who may be guilty of a serious crime will go free,

without having been tried." Barker, 407 U.S. at 522. The Court held that result

was "the only possible remedy." Ibid. As such, dismissal with prejudice is the

obligatory disposition.

      We determine defendant's claim of ineffective assistance of counsel to be

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                         A-5350-16T2
                                      12
