                                NOT FOR PUBLICATION WITHOUT THE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-5656-18T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MICHAEL J. DEVINE,

     Defendant-Respondent.
____________________________

                    Argued October 29, 2019 – Decided November 25, 2019

                    Before Judges Messano, Ostrer and Susswein.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Burlington
                    County, Accusation No. 19-01-0048.

                    Jennifer Bentzel Paszkiewicz, Assistant Prosecutor,
                    argued the cause for appellant (Scott A. Coffina,
                    Burlington County Prosecutor, attorney; Jennifer
                    Bentzel Paszkiewicz, of counsel and on the briefs).

                    Laura B. Lasota, Assistant Deputy Public Defender,
                    argued the cause for respondent (Joseph E. Krakora,
                    Public Defender, attorney; Laura B. Lasota, of counsel
                    and on the brief).
PER CURIAM

      Pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15

to -26, "[e]xcept for 'excludable time for reasonable delays,' defendants cannot

remain in jail for more than 90 days before the return of an indictment, or more

than 180 days after indictment and before the start of trial." State v. Robinson,

229 N.J. 44, 56 (2017) (citing N.J.S.A. 2A:162-22(a)(1)(a), -22(a)(2)(a)). The

CJRA "lists thirteen periods of excludable time[.]" Id. at 56 (citing N.J.S.A.

2A:162-22(b)(1)). If a defendant is not indicted within ninety days of being

detained, he must be released

            unless, on motion of the prosecutor, the court finds that
            a substantial and unjustifiable risk to the safety of any
            other person or the community or the obstruction of the
            criminal justice process would result from the eligible
            defendant’s release from custody, so that no
            appropriate conditions for the eligible defendant’s
            release could reasonably address that risk, and also
            finds that the failure to indict the eligible defendant in
            accordance with the time requirement set forth in this
            subparagraph was not due to unreasonable delay by the
            prosecutor. If the court finds that a substantial and
            unjustifiable risk to the safety of any other person or
            the community or the obstruction of the criminal justice
            process would result, and also finds that the failure to
            indict the eligible defendant in accordance with the
            time requirement set forth in this subparagraph was not
            due to unreasonable delay by the prosecutor, the court
            may allocate an additional period of time, not to exceed
            [forty-five] days, in which the return of an indictment
            shall occur. Notwithstanding the court’s previous

                                                                         A-5656-18T6
                                        2
            findings for ordering the eligible defendant’s pretrial
            detention, or if the court currently does not find a
            substantial and unjustifiable risk or finds unreasonable
            delay by the prosecutor as described in this
            subparagraph, the court shall order the release of the
            eligible defendant[.]

            [N.J.S.A. 2A:162-22(a)(1)(a) (Section 22).]

      In this case, on January 7, 2019, seventy-eight days after his arrest and

seventy-five days after the Law Division ordered his detention on two

complaint-warrants, defendant Michael J. Devine entered into a global plea

agreement. Defendant pled guilty to an indictment charging him with third-

degree receiving stolen property, alleging events that occurred approximately

two weeks before those alleged in the complaint-warrants, and which served as

the basis for a prior detention motion, which the court denied. Defendant also

waived his right to indictment on charges contained in the two complaint-

warrants, see Rule 3:7-2, and pled guilty to a single-count accusation charging

him with third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). In return

for his guilty pleas, the State agreed to recommend concurrent sentences of

imprisonment not to exceed four years with no period of parole ineligibility.

The judge set sentencing for May 23, 2019.




                                                                       A-5656-18T6
                                       3
      On sentencing day, defendant moved to withdraw his guilty pleas. 1 The

judge adjourned the sentencing and held oral argument on defendant's motion

on July 1, 2019. Applying the factors outlined by the Court in State v. Slater,

198 N.J. 145, 158–62 (2009), the judge granted defendant's motion and vacated

his guilty pleas to the indictment and accusation. The judge did not vacate, nor

was he asked to vacate, defendant's waiver of his right to indictment, nor was he

asked to dismiss the accusation. Indeed, the judge scheduled the matter for a

"discretionary conference" on July 22, noting that if there was no agreement, the

court would "move to pretrial conference and set a trial date." 2

      The prosecutor asked the judge to grant the State "excludable time for the

time that the . . . notice of motion [to withdraw] was entered." The judge agreed

that the State was entitled to "excludable time attributed to . . . defendant from

the date of his notice of motion to today's date[.]"      See N.J.S.A. 2A:162-

22(b)(1)(c) (excluding "[t]he time from the filing to the final disposition of a



1
  The record is unclear whether this was by formal motion filed by defense
counsel or by defendant. We only note that at the subsequent hearing on the
motion, defendant was represented by different counsel than when he pled
guilty. This attorney later said he was representing defendant "because of the
apparent conflict with [defendant's] previously assigned counsel."
2
   It is unclear whether the judge intended to try the indicted matter or the
accusation.
                                                                          A-5656-18T6
                                        4
motion made before trial by . . . defendant"). However, the prosecutor quickly

reconsidered his position, and asked the judge to grant the State excludable time

from the date of defendant's guilty plea through the date of its withdrawal.

Defense counsel did not object, and the judge concluded that the time between

January 7, 2019, the date of defendant's guilty plea, and July 1, 2019, the date

the court granted his withdrawal motion, was excludable time attributable to

defendant, although he reserved on the State's request pending further review of

court records. See N.J.S.A. 2A:162-22(b)(1)(l) (permitting the court to grant

excludable delay "for other periods of delay not specifically enumerated if the

court finds good cause for the delay").3

      Apparently, the court's computerized notification system alerted the court

that no indictment had been returned and defendant would have been detained

for ninety days as of July 13, 2019. On Friday, July 12, the judge conducted an

ex parte conference on the record with the prosecutor. Defendant was present




3
  The record contains two orders. The judge's July 2, 2019 order granted the
State fifty-four days of excludable time, i.e., from the filing of the motion to
withdraw through the order granting the motion. The judge's July 8, 2019 order
granted the State 122 days of excludable time, i.e., from the day of defendant's
guilty pleas through the order granting the withdrawal motion.



                                                                         A-5656-18T6
                                       5
in court without counsel.4 Citing Section 22, the judge noted that because

defendant had not been indicted and the State had not filed any motion for relief,

he must release defendant the next day. The prosecutor countered by noting that

defendant had waived his right to indictment, and the State was prepared to

proceed to trial on the accusation pursuant to Rule 3:7-2.

      Calling it a "novel issue," the judge candidly stated he "would need time

to think about" it and was reluctant to consider the issue further without hearing

from defense counsel. However, finding "no additional basis upon which to give

excludable time" to the State, the judge concluded he would order defendant's

release the following day. Reviewing the risk assessment prepared by Pretrial

Services, which included scores of four, for the risk of failure to appear and the

risk of new criminal activity, the judge ordered defendant's release on Level III

monitoring and granted the State's request for a stay.

      The State moved for reconsideration, and the court heard argument on the

motion on July 25, 2019. Noting that defendant knowingly and voluntarily

waived his right to indictment, and, citing Rule 3:7-2, the prosecutor argued the


4
   The transcript reveals that although defendant remained eligible for the
services of the Office of the Public Defender, counsel who represented
defendant for purposes of the motion to withdraw his guilty pleas was not
assigned to represent defendant any further. In short, on July 12, defendant did
not have counsel assigned to represent him.
                                                                          A-5656-18T6
                                        6
filing of the accusation was the functional equivalent of the return or unsealing

of an indictment for purposes of the CJRA. He asserted that the 180-day clock

requiring trial after indictment now controlled.         See N.J.S.A. 2A:162-

22(a)(2)(a).

      Now represented by counsel, defendant argued that when the court

vacated his guilty plea, it restored the constitutional rights defendant waived by

pleading guilty. It followed, therefore, that the court also restored defendant's

right to indictment. Defendant argued that the State could have sought an

indictment during the twelve calendar days — including four days on which a

grand jury sat — after the judge permitted withdrawal of defendant's guilty pleas

and prior to expiration of the ninety-day clock.

      The judge concluded that "the effect of [granting] the Slater motion was

the vacation of the guilty plea as well as the waiver of the indictment and the

accusation." He denied the motion for reconsideration. 5

      We granted the State's motion for leave to appeal. Since the judge's July

25, 2019 order denying reconsideration continued the stay of defendant's release




5
  During colloquy with the judge, the prosecutor revealed that a grand jury had
that day voted a true bill against defendant charging him with receiving stolen
property based on the allegations in the two complaint-warrants.
                                                                          A-5656-18T6
                                        7
pending appeal if we granted the State's motion for leave to appeal, defendant

remains detained.

      Before us, the parties essentially reiterate the arguments made in the Law

Division. We conclude that under the particular circumstances of this case,

defendant waived his right to indictment, the waiver was never revoked or

vacated, and the filed accusation, which was never dismissed by the court,

served as the functional equivalent of an indictment for purposes of Section 22

of the CJRA. We therefore reverse and vacate the order releasing defendant

from pretrial detention.

      We start by recognizing that every defendant charged with a crime in New

Jersey has a constitutional right to indictment by a grand jury. N.J. Const. art.

I, ¶ 8; State v. Dorn, 233 N.J. 81, 93 (2018). But, like other constitutional rights,

particularly those waived upon the entry of a guilty plea, see, e.g., State v.

Knight, 183 N.J. 449, 469 (2005) (discussing constitutional rights deemed

waived on entry of an unconditional guilty plea), a defendant may voluntarily

waive his right to indictment. Indeed, "[t]he primary purpose of [Rule 3:7-2] is

to establish that criminal defendants may waive their right to indictment." State

v. Ciuffreda, 127 N.J. 73, 79 (1992).

      Rule 3:7-2 provides:


                                                                             A-5656-18T6
                                         8
            Every crime shall be prosecuted by indictment unless
            the defendant, after having been advised of the right to
            indictment, shall waive the right in a signed writing, in
            which case the defendant may be tried on accusation.
            Such accusation shall be prepared by the prosecuting
            attorney and entitled and proceeded upon in the
            Superior Court.

As the Court said in Ciuffreda,

            The Rule . . . incorporates two protections, both
            designed to protect defendants who choose to proceed
            without exercising their right to indictment. First, the
            requirement that the prosecutor file an accusation
            performs a “notice” function. The accusation ensures
            that when criminal defendants waive the right to
            indictment, they nevertheless have notice prior to trial
            of the charges against which they must defend. The
            second protection is the requirement that waivers be in
            writing after criminal defendants have been informed
            of the right to indictment. That requirement provides
            increased assurance that criminal defendants have in
            fact agreed to allow the prosecution to go forward by
            way of accusation rather than by indictment.

            [127 N.J. at 79–80 (emphasis added).]

      Here, there is no dispute that defendant's waiver of indictment was

knowingly and voluntarily entered prior to his guilty pleas, and the accusation

fully complied with the rule's requirements and achieved its intended purposes.

It is also undisputed that at no time during oral argument on defendant's motion

to withdraw his guilty pleas, during the court's oral decision, or in the July 1,

2019 order permitting the withdrawal, is there any revocation or vacation of the

                                                                         A-5656-18T6
                                       9
waiver of indictment or dismissal of the accusation. Defendant never expressly

moved for such relief; such relief was not implicit in his motion to withdraw his

guilty pleas; and the judge did not grant such relief.

      We acknowledge that in the vast majority of cases, a defendant's waiver

of indictment is entered and an accusation filed in conjunction with plea

negotiations routinely consummated by a final disposition of charges, except for

sentencing. That certainly was the anticipated outcome in this case. However,

our rules recognize the independent nature of the filed accusation as a charging

document, equivalent to an indictment and fully functional for purposes of trial.

See R. 3:7-2 (expressly providing that "the defendant may be tried on

accusation" after valid waiver of right to indictment); R. 3:7-3(a) (describing

required contents of an accusation and permitting a defendant to move to strike

surplusage); R. 3:7-4 (permitting amendment of the accusation, including

amendment to charge a lesser included offense, and permitting postponement of

trial as a result); R. 3:7-5 (permitting motion for a bill of particulars "if the . . .

accusation is not sufficiently specific to enable the defendant to prepare a

defense"); R. 3:7-6 (permitting joinder of offenses in accusation); R. 3:7-7

(permitting joinder of defendants in accusation).         Indeed, we note without




                                                                               A-5656-18T6
                                         10
further comment that the rules provide process may issue upon the filing of an

accusation. R. 3:7-8 and -9.

      Additionally, amendments to our rules enacted after the passage of the

CJRA contemplate final adjudication of the charges by the court upon waiver of

indictment and trial by jury. See R. 3:4-2(d)(8) (outlining procedure for first

appearance on an indictable offense, and permitting waiver of indictment and

trial by jury, and trial by the court); R. 3:4-2(g)(5) (outlining procedure for

waiver of first appearance, including counsel's obligation to advise client of

right to waive indictment and jury trial and be tried by the court).

      Our point is simply that the charging document — the accusation — is

separate from a defendant's waiver of his right to indictment — a necessary

predicate to the State's ability to prosecute him on the accusation. Unless the

court expressly vacates a defendant's waiver when it permits withdrawal of a

guilty plea to the corollary accusation, the State theoretically may proceed to

trial, as the prosecutor asserted he was prepared to do in this case.

      Prior to passage of the CJRA, this dilemma was more hypothetical than

practical. We have little doubt that pre-CJRA, the prosecutor would have

eventually presented the case to a grand jury and secured an indictment, with

the accusation becoming irrelevant as a result.      That is precisely what has


                                                                        A-5656-18T6
                                       11
occurred. However, the advent of the CJRA caused the unusual result in this

case, because the judge relied upon the express language of Section 22 and

concluded that despite the existence of a valid, filed accusation, the lack of an

indictment compelled defendant's release from custody.            Under the facts

presented, such a literal reading of Section 22 was unfair to the State. Nor was

such literal reading needed to vindicate defendant's right to a speedy trial, as the

prosecutor conceded the 180-day clock in this case began to run from the day

the accusation was filed, minus any other excludable time.

         The record does not reveal what went on behind the scenes leading up to

the plea agreement. We know, however, that negotiations were not finalized

and the bargain was not placed on the record until seventy-eight days after

defendant's arrest. We also know that when the judge permitted defendant to

withdraw his guilty pleas, only twelve days remained on Section 22's ninety-day

clock.

         We reject defendant's assertion that the State should have presented the

case to a grand jury within those twelve days or live with the consequence that

he argues the CJRA compelled, i.e., defendant's release from custody. First, the

accusation had not been dismissed, and defendant's waiver of his right to

indictment had not been withdrawn or vacated. Second, we are in no position


                                                                            A-5656-18T6
                                        12
to know whether the prosecution's witnesses were available to testify before the

grand jurors, nor do we think it appropriate to intervene unnecessarily in the

operations of the prosecutor's office. Third, a valid indictment requires more

than the grand jury's affirmative vote to return a true bill. See R. 3:6-8(a)

(requiring the indictment "be returned in open court to the Assignment Judge"

or in her absence, to her designee). In fact, under Section 22, only the return of

an indictment stops the ninety-day clock. See N.J.S.A. 2A:162-22(a)(1)(a)

(stating a "defendant shall not remain detained in jail for more than [ninety] days

. . . prior to the return of an indictment") (emphasis added).

      Of course, once defendant was permitted to withdraw his guilty pleas, the

State might have sought relief under Section 22.         However, as noted, the

prosecutor intended to try defendant on the accusation, which had not been

dismissed. At least on the record before us, the State had a good faith belief that

there was no need to indict defendant, since defendant never sought to vacate

his waiver of the right to indictment. Additionally, under Section 22, to secure

additional time to return an indictment against defendant, the State would have

been required to bear another more onerous burden, by demonstrating anew that

defendant posed

            a substantial and unjustifiable risk to the safety of any
            other person or the community or the obstruction of the

                                                                           A-5656-18T6
                                       13
            criminal justice process would result from the eligible
            defendant’s release from custody, so that no
            appropriate conditions for the eligible defendant’s
            release could reasonably address that risk, and also
            finds that the failure to indict the eligible defendant in
            accordance with the time requirement set forth in this
            subparagraph was not due to unreasonable delay by the
            prosecutor.

            [N.J.S.A. 2A:162-22(a)(1)(a).]

      We emphasize that our holding is limited to the particular facts and record

presented on this appeal, and note the potential for mischief by both defendants

and the State in other circumstances. For example, under the literal terms of

Section 22, if a detained defendant consummated his plea bargain by way of

accusation eighty-nine days after his detention, and then successfully vacated

his guilty plea, would the State have only one day in which to successfully return

an indictment against him or otherwise move for relief under Section 22? We

doubt that the CJRA countenances such a result.

      Similarly, under the same hypothetical facts, would the State be justified

in arguing that the accusation was the functional equivalent of an indictment for

purposes of the CJRA if it decided, months after a defendant withdrew his guilty

plea, to seek a superceding indictment against the defendant, perhaps charging

him with more serious crimes? Clearly, the CJRA does not condone abuse of

one of its overriding statutory purposes, i.e., the establishment of "statutory

                                                                          A-5656-18T6
                                       14
speedy trial deadlines for defendants who are detained pending trial." Robinson,

229 N.J. at 54 (citing N.J.S.A. 2A:162-22).

      We find no such abuse by either side on this record, and we remain certain

that trial judges in the Criminal Part will appropriately address any abuses that

may arise.   In the future, we respectfully urge trial judges who permit a

defendant to withdraw a guilty plea to an accusation to specifically address the

defendant's previously-entered waiver of his right to indictment and the

accusation itself, deciding whether either has continued vitality in light of the

court's ruling on the motion. Through this opinion, we also express our concerns

to the Criminal Practice Committee and commend to its collective consideration

possible amendments to the rules.

      Reversed. The order releasing defendant is vacated.




                                                                         A-5656-18T6
                                      15
