                                NOT FOR PUBLICATION WITHOUT THE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-4055-17T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MARCELO G. MONTALVO,
ROBERTO R. GONZALEZ,
VIDAL M. SALMERON,
and CARLOS J. BRENES,

     Defendants-Respondents.
__________________________________

                    Submitted January 31, 2019 – Decided February 15, 2019

                    Before Judges Simonelli and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 17-05-0091.

                    Gurbir S. Grewal, Attorney General, attorney for
                    appellant (Kayla E. Rowe, Deputy Attorney General, of
                    counsel and on the brief).

                    Proetta & Oliver, attorneys for respondent Vidal M.
                    Salmeron; and Joel S. Silberman, attorney for
                    respondents Marcelo G. Montalvo and Roberto R.
            Gonzalez (William A. Proetta, and Joel S. Silberman,
            on the joint brief).

PER CURIAM

      On July 16, 2012, the police arrested defendants Marcelo Montalvo, Roberto

Gonzalez and Vidal Salmeron and charged them with possession of a controlled

dangerous substance (CDS), possession of a CDS with intent to distribute, money

laundering, and conspiracy. Defendants were released on bail. Four years and

eleven months later, on May 26, 2017, a grand jury indicted defendants for

second-degree conspiracy, N.J.S.A. 2C:5-2; first-degree possession with intent

to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and

N.J.S.A. 2C:2-6; third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) and

N.J.S.A. 2C:2-6; and second-degree money laundering, N.J.S.A. 2C:21-25(a).

      On July 10, 2017, the trial court ordered plaintiff State of New Jersey to

address several discovery deficiencies raised by the defense.            The State

subsequently informed the court that some of the requested material ,

specifically, motor vehicle recordings (MVRs) and radio transmissions of the

State troopers who conducted the stop of a tractor trailer that led to defendants'

arrest, no longer existed, due to the length of time that elapsed between the arrest

and indictment.



                                                                            A-4055-17T3
                                         2
       On August 17, 2017, defendants filed a motion to dismiss the indictment

with prejudice based on the violation of their right to a speedy trial. The State

appeals from the April 30, 2018 Law Division order granting the motion. On

appeal, the State raises the following contentions:

             POINT I

             THE VALID INDICTMENT THE TRIAL COURT
             IMPROPERLY DISMISSED THE INDICTMENT
             AGAINST     DEFENDANTS    MONTALVO,
             GONZALEZ, AND SALMERON.

             A.    Standard for Evaluating a Motion to Dismiss an
                   Indictment.

             B.    Standard of Review.

             C.    The Barker[1] factors balance in favor of
                   reinstating the grand jury indictment.

                   1.    The first Barker factor, the length of the
                         delay, invites further analysis and weighs
                         only slightly against the State.

                   2.    The reason for the delay weighs in favor of
                         maintaining the valid indictment against
                         defendants.

                   3.    Defendants' dilatory speedy trial challenge
                         contributed to the delay.

                   4.    No prejudice has accrued to the defendants
                         as a result of the delay.

1
    Barker v. Wingo, 407 U.S. 514 (1972).
                                                                         A-4055-17T3
                                         3
We reject these contentions and affirm.

      The decision to dismiss an indictment lies within the discretion of the trial

court and "will only be overturned upon a showing of a mistaken exercise of that

discretion." State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010). The

trial court's decision to dismiss an indictment should not be disturbed on appeal

unless the court's discretion was "clearly abused." State v. Hogan, 144 N.J. 216,

229 (1996). "A trial court decision will constitute an abuse of discretion where

'the decision [was] made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" State v. Salter,

425 N.J. Super. 504, 514 (App. Div. 2012) (alteration in original) (quoting State

v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010)). Thus, the court's

decision "will be reviewed only for manifest error and injustice." State v.

Torres, 183 N.J. 554, 572 (2005) (quoting State v. Ravenell, 43 N.J. 171, 182

(1964)). Applying the above standards, we discern no reason to reverse.

      "The Sixth Amendment protects a defendant's right to a speedy trial after

arrest or indictment." State v. May, 362 N.J. Super. 572, 595 (App. Div. 2003)

(quoting State v. Long, 119 N.J. 439, 469 (1990)). "The right to a speedy trial

is 'fundamental' and is imposed by the Due Process Clause of the Fourteenth

Amendment on the States." Barker, 407 U.S. at 515 (footnote omitted).


                                                                           A-4055-17T3
                                        4
      The four-part test to determine when a violation of a defendant's speedy-

trial rights contravenes due process — announced in Barker 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).

                                 Length of Delay

      The first factor — length of delay — 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

upon the peculiar circumstances of the case." Id. at 530-31 (footnote omitted)


                                                                             A-4055-17T3
                                         5
(adding "the delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge"). If a delay is

found to be presumptively prejudicial, "such a delay will trigger consideration

of the other factors." Cahill, 213 N.J. at 264.

      Whether a delay is considered presumptively prejudicial "depends on the

circumstances of the individual case, including the nature of the charged

offense" and requires a consideration of the amount of time customarily required

to dispose of similar charges. Id. at 264-65. Nevertheless, "most decisions have

identified a period of one year or slightly more than one year as the time 'after

which . . . it makes sense to inquire further into why the defendant has not been

tried more promptly.'" Id. at 265 (quoting 5 Wayne R. LaFave et al., Criminal

Procedure § 18.2(b) at 119 (3d ed. 2007)). "[O]nce the delay exceeds one year,

it is appropriate to engage in the analysis of the remaining Barker factors." Id.

at 266.

      Here, the motion judge found the nearly five-year delay between

defendants' arrest and indictment weighed in defendants' favor.       The State

concedes the length of delay triggered further analysis of the remaining Barker

factors. However, the State argues the judge should have weighed this factor

only slightly against it because defendants were indicted within the time period


                                                                         A-4055-17T3
                                        6
set forth in N.J.S.A. 2C:1-6(b), which provides, "[a] prosecution for a crime

must be commenced within five years after it is committed[.]"

      The State cites no authority setting a statutory time period as the length of

time fixing the point at which delay is excessive. To the contrary, the right to a

speedy trial is "necessarily relative" and depends on the circumstances of each

individual case. Barker, 407 U.S. at 522 (quoting Beavers v. Haubert, 198 U.S.

77, 87 (1905)). Although the Barker Court recognized that some legislatures

and courts had identified a specific time after which a criminal charge would be

subject to dismissal, it held there was no constitutional basis for requiring that

the speedy trial right be so quantified. Id. at 523.

      Our Supreme Court has "declined . . . to fix a date certain after which

prejudice is presumed or the complaint or indictment must be dismissed,

preferring instead to evaluate each claim of denial of a speedy trial on a case-

by-case basis." Cahill, 213 N.J. at 269. We have held that, in evaluating a

speedy trial claim, "[t]here is no set length of time that fixes the point at which

delay is excessive." Tsetsekas, 411 N.J. Super. at 11. Accordingly, our courts

do not view the right to a speedy trial in reference to any narrowly defined

statutory time-period or procedural rules and, instead, have adopted the

understanding that "the right to a speedy trial is relative and depends upon [the]


                                                                           A-4055-17T3
                                         7
circumstances." Szima, 70 N.J. at 200. This clearly contradicts the State's

reliance on the statute of limitations. The statute of limitations is separate and

distinct from a defendant's right to a speedy trial and there is no precedent to

support a consideration of the statute of limitations in the speedy trial context.

Thus, the judge correctly found the length of delay weighed in defendants' favor.

                              Reason for the Delay

         "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. Trial courts, in

reviewing "the chronology of the delay," should "divid[e] the time into discrete

periods of delay" and attribute each delay to the State, the defendant or the

judiciary. May, 362 N.J. Super. at 596 (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. "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. "Delay caused or requested by the defendant is not


                                                                          A-4055-17T3
                                        8
considered to weigh in favor of finding a speedy trial violation." State v. Farrell,

320 N.J. Super. 425, 446 (App. Div. 1999).

      The State's reason for the delay in this case was that the Deputy Attorney

General (DAG) originally assigned to the case left his position and his cases

were reassigned to a new DAG. The new DAG checked the status of each

reassigned case on PROMIS/Gavel, the court's system, where the matter was

listed by the court as "closed." The DAG relied on this listing, regarded the case

as closed, and therefore failed to take any action in the case until almost five

years later when he discovered the information provided on PROMIS/Gavel had

been inaccurate. The State argued that this was a valid reason for the delay

because the DAG relied on information provided by the court, misunderstood

the PROMIS/Gavel listing of the case as "closed," and initiated the indictment

as soon as he realized the matter was not closed.

      The judge disagreed, finding as follows:

            the state's only explanation for the delay is that when a
            new deputy attorney general was assigned to the case,
            the case was listed as closed in PROMIS/Gavel, which
            is the court system and, therefore, the case was regarded
            as closed for an extended period of time, that being
            years have gone by as opposed to making an immediate
            inquiry either with the [c]ourts, defense counsel or even
            your previous deputy attorney general who was
            assigned to this case.


                                                                            A-4055-17T3
                                         9
                    The state appears to be passing the blame off to
             an unknown third party who is not responsible for
             prosecuting cases. It's their responsibility. Therefore,
             [the c]ourt finds that [the second] factor[] weigh[s] in
             favor of the defendants as the . . . state has failed to set
             forth a valid reason . . . for indicting defendant[s] nearly
             five years after [their] initial arrest.

Accordingly, the judge weighed the second factor in defendants' favor.

      The State argues the judge should have weighed the second Barker factor

in its favor because the reason for the delay was valid and quickly remedied, and

the judge failed to consider the full circumstances and engage in a proper legal

analysis of the reason for the delay. 2




2
    The State also distinguishes this matter from State v. Misurella, 421 N.J.
Super. 538 (App. Div. 2011) and May, where the delays were found to be neutral
and were weighed only slightly against the State. Defendants also distinguish
these cases and argue Misurella does not apply here because there, the defendant
was asserting his right to a speedy "de novo" appeal, and the right to a speedy
appeal is separate and distinct from the right to a speedy trial. Although they do
so for different reasons, both parties agree the present case is distinguishable
from Misurella and May. However, as to defendants' argument that Misurella
is inapplicable, there, we clearly applied the Barker factors and noted "the same
framework and standard apply to evaluating undue delay on appeal as applies to
a defendant's right to a speedy trial in the trial court." Misurella, 421 N.J. Super.
at 544. Thus, defendants' argument that the right to a speedy trial and the right
to a speedy appeal "are not analogous" is unsupported and without merit. Ibid.;
see also State v. LeFurge, 222 N.J. Super. 92, 98 (App. Div. 1988) (recognizing
that appellate delays are evaluated under the speedy trial framework and "against
the traditional standards enunciated in Barker").


                                                                             A-4055-17T3
                                          10
      The court's erroneous listing of the case as "closed" on PROMIS/Gavel is

not attributable to defendants, and does not constitute "[a] deliberate attempt [by

the State] to delay the trial in order to hamper the defense[.]" Barker, 407 U.S.

at 531. Nevertheless, "[a]s a general rule . . . delays 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." Farrell, 320 N.J. Super. at

451. Thus, although the State alleges the delay was caused by its reasonable

reliance on the court's error, the error is nevertheless attributable to the State for

purposes of this analysis.

      Because the court's error largely caused the delay, it should be regarded

as a "neutral" reason for the delay. Barker, 407 U.S. at 531. A neutral reason

is weighed against the State, but "should be weighted less heavily" than if the

State had deliberately caused the delay. Ibid. However, it should nevertheless

be considered "since the ultimate responsibility for such circumstances must rest

with the government rather than with the defendant." Ibid.; see also Farrell, 320

N.J. Super. at 451(delays attributed to the court itself should be weighed less

heavily but nevertheless should be considered). Thus, the judge should have

slightly weighed the reason for the delay against the State. This error, however,

does not warrant reversal.


                                                                              A-4055-17T3
                                         11
                       Defendant's Assertion of His Rights

      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

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." Id. at 531-32.

      "The assertion of a right to a speedy trial is measured heavily in the speedy

trial analysis." Cahill, 213 N.J. at 274. Although a defendant does not have an

obligation to assert his right to a speedy trial, "'[w]hether and how a defendant

asserts his right is closely related' to the length of the delay, the reason for the

delay, and any prejudice suffered by the defendant." Id. at 266 (alteration in

original) (quoting Barker, 407 U.S. at 531). "The defendant's assertion of his

speedy trial right, then, is entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-

32; see also Cahill, 213 N.J. at 266 ("the assertion of a right to a speedy trial

. . . is a factor entitled to strong weight when determining whether the state has

violated the right"). "[F]ailure to assert the right will make it difficult for a

defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532.


                                                                            A-4055-17T3
                                         12
      Here, the judge found the third factor weighed in defendants' favor

because defendants were not obligated to bring themselves to trial and they filed

their motion to dismiss three months after they were indicted. The State argues

the judge should have heavily weighed this factor against defendants.

      Although the judge correctly noted defendants are not obligated to bring

themselves to trial, the judge erred in finding this factor weighed in their favor.

Furthermore, although a defendant has no obligation to bring himself to trial, a

defendant does have "some responsibility to assert a speedy trial claim" and

"failure to assert the right would make it difficult for a defendant to prove that

he was denied a speedy trial." Szima, 70 N.J. at 200; see Barker, 407 U.S. at

531-32. Thus, if a defendant fails to assert his right to a speedy trial, such failure

will weigh against a determination that the right has been violated. See May,

362 N.J. Super. at 598 (where defendant waited a long time before asserting his

speedy trial right, his failure to assert the right weighed "against any

determination that the right was violated").

      Defendants did not assert their right to a speedy trial prior to filing their

motion to dismiss and did not inquire about the status of their charges at any

time between their arrest on July 16, 2012 and their indictment on May 26, 2017.

See State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002) (defendant never


                                                                              A-4055-17T3
                                         13
inquired as to when he would be prosecuted or demanded a speedy trial). By

weighing this factor in defendants' favor and relying solely on the fact that they

had no obligation to assert their right, the judge engaged in a flawed and

incomplete analysis of this factor, ignoring the fact that "[f]ailure to assert the

right is a factor that must be considered in any analysis of an asserted speedy

trial violation." Cahill, 213 N.J. at 274. Nevertheless, this error does not

warrant reversal.

      We have recognized "there is an obvious difference in the weight to be

given to defendants' inaction prior to indictment and subsequent to indictment."

State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). We stated:

             Under New Jersey practice a dismissal of a criminal
             complaint has no finality for the benefit of a defendant,
             and may be followed by grand jury consideration and
             indictment. Hence, it appears inappropriate to assign
             much weight or significance to the failure of a
             defendant and his counsel to go through the abortive
             process of moving for a dismissal of a complaint prior
             to the return of an indictment.

             [Ibid.]

Where defendants move for dismissal "promptly after the return of the

indictment . . . their right to a speedy trial should not hinge upon their failure to

move prior thereto." Ibid. Thus, although the judge here should have considered

defendants' failure to assert their right to a speedy trial, it is not a necessary

                                                                             A-4055-17T3
                                        14
precondition to dismissal. Ibid. Thus, the judge should have weighed this factor

only slightly against defendants.

                            Prejudice to the Defendant

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

caused by delay. Barker, 407 U.S. at 532. "[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 Merlino, 153 N.J.

Super. at 15). Rather,

            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."

            [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. "[T]he

inability of a defendant adequately to prepare his case skews the fairness of the

entire system." Barker, 407 U.S. at 532.

      It is undisputed that the delay in this case resulted in the loss or destruction

of the MVRs and radio transmissions. During the stop, the troopers searched

                                                                              A-4055-17T3
                                        15
the sleeping berth of the tractor-trailer and found suspected cocaine. Defendants

asserted they needed the MVRs and radio transmissions to prove the stop was a

ruse; however, the State conceded this fact.

      The judge found the fourth factor weighed in defendants' favor,

emphasizing the general anxiety to defendants and that the unavailability of the

MVRs and radio transmissions potentially impaired their ability to defend

against the present charges. The judge noted that Montalvo had also asserted

personal prejudice because he previously worked in the education field and has

been unable to seek or obtain a job in his respective field due to required

background checks.

      The State argues the judge should have weighed this factor in its favor

because defendants have not suffered a great amount of prejudice, they failed to

identify any particular prejudice, and their purported anxiety should neutrally

impact the analysis because such anxiety is present in every case.

      It is well-established that a defendant may be "disadvantaged by restraints

on his liberty and by living under a cloud of anxiety, suspicion, and often

hostility." Barker, 407 U.S. at 533. Furthermore, our courts have noted that

"every unresolved case carries with it some measure of anxiety." Cahill, 213

N.J. at 274-75.    "We must assume that any person who has had limited


                                                                         A-4055-17T3
                                      16
involvement with the criminal justice system would experience some measure

of anxiety by the existence of a pending and long-unresolved charge." Id. at

275.

       Applying this understanding, the Court in Cahill found that the

generalized anxiety to the defendant, as well as the defendant's self-imposed

limitations on his employment options, caused the fourth factor to weigh in favor

of dismissing the indictment. 3 Id. at 275-76. Similarly, in Merlino, 153 N.J.

Super. at 15, we found that "[a]lthough there was no showing of tangible

prejudice to defendants . . . the facts support the determination that the unusual

period of delay, the absence of justifiable reasons and the anxiety and concern

inherent in an unresolved criminal charge outweigh the absence of actual trial

prejudice to defendants." We noted that "proof of such actual prejudice is not a

necessary condition precedent to the vindication of the speedy trial guarantee."

Ibid. Under this framework, is it clear that general anxiety caused by defendants'



3
   The defendant in Cahill outlined the employment choices he made in light of
the impending suspension of his driver's license to support his claim that he had
been prejudiced by the delay. The defendant asserted that he sought short-term
employment "that did not require a driver's license or could be accessed by mass
transportation or a ride from a friend." Cahill, 213 N.J. at 275. Although the
Court recognized that these were "self-imposed limitations," it noted they
nevertheless limited the defendant's employment options and therefore weighed
in favor of a finding of personal prejudice. Id. at 275-76.
                                                                          A-4055-17T3
                                       17
pending charges and the limitations on Montalvo's employment opportunities,

even if self-imposed, are sufficient for a finding of prejudice.

        The State also argues defendants were not prejudiced by the unavailability

of the MVRs and radio transmissions because neither party has access to this

evidence. In evaluating the prejudice to defendants, the judge found that the

unavailability of this discovery potentially impaired their ability to defend

against the charges. Although this evidence is unavailable to the parties, the

State conceded what defendants hoped to prove from it  ̶̶  ̶̶ that the stop was a

ruse.

        Defendants counter this point in a footnote, claiming the State's

concession that the stop was a "ruse" addressed their request for the policies of

State Police regarding directed stops, and the concession was not relevant to the

recordings rendered unavailable.       However, at oral argument, defendants

conceded they intended to use the unavailable evidence to prove the stop was a

ruse. Concessions made before the trial court foreclose a contrary argument on

appeal.    Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000).         Thus,

defendants cannot now assert that the State's concession was unrelated to the

unavailable evidence. Because the State conceded the stop was a ruse, the

unavailability of the evidence did not impair defendants' ability to defend.


                                                                          A-4055-17T3
                                        18
Although defendants were deprived of the evidence, this was "in no way

significant to the outcome" due to the State's concession. See Barker, 407 U.S.

at 534.

      The judge's finding of prejudice nevertheless does not constitute an abuse

of discretion because a "demonstration of prejudice is not strictly limited to a

'lessened ability to defend on the merits.'" Farrell, 320 N.J. Super. at 446

(quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974)).

"Prejudice can also be found from employment interruptions, public obloquy,

anxieties concerning the continued and unresolved prosecution, the drain on

finances, and the like." Id. at 452 (quoting Smith, 131 N.J. Super. at 368 n.2).

The judge also found defendants suffered prejudice due to employment

interruptions and anxieties concerning the unresolved prosecution. Thus, th e

judge properly weighed this factor in defendants' favor.

      In sum, the judge considered the conduct of both the State and the

defendants. Although the judge erred in her analysis of some of the Barker

factors, she applied the correct standard for evaluating a motion to dismiss an

indictment on speedy trial grounds, thoroughly reviewed the parties' arguments,

and engaged in a detailed analysis of the relevant factors. As in Merlino,

            the judge below undertook the difficult task of
            balancing all the relevant factors relating to the

                                                                        A-4055-17T3
                                      19
              respective interests of the State and the defendants,
              applied his subjective reactions to the particular
              circumstances and arrived at a just conclusion. Such a
              determination at the trial level should not be overturned
              unless clearly erroneous.

              [Merlino, 153 N.J. Super. at 17 (citations omitted).]

We are satisfied the judge's dismissal of the indictment was not an abuse of

discretion.

      Affirmed.




                                                                          A-4055-17T3
                                        20
