RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. Submitted October 7, 2015 Decided

Transcription

1 STATE OF NEW JERSEY IN THE INTEREST OF T.J. RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Submitted October 7, 2015 Decided February 3, 2016 PER CURIAM Before Judges Alvarez and Ostrer. On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Brett Yore, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent T.J. (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). By leave granted, the State appeals from the Family Part's January 2, 2015 order dismissing its December 22, 2014 juvenile delinquency complaint charging T.J. with what would have been third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b), if it had been committed by an adult. The State also appeals from the court's February 23, 2015 order denying the State's

2 reconsideration motion. We affirm and therefore remand for an adjudicative hearing. I. The dismissed complaint pertains to an incident that occurred on July 19, An officer executed three complaints on that date, which were filed with the court on August 29, They charged defendant with the following three crimes, had they been committed by an adult: (1) fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2), by "fleeing from police on foot after being told to stop" and that he was under arrest; (2) second-degree eluding while operating a motor vehicle, N.J.S.A. 2C:29-2(b), "by purposely fleeing in an extremely reckless manner from police after being signaled to stop while displaying the middle finger and yelling '[f--k] you pig,'" which "exposed himself and others to possible injury"; and (3) third-degree alteration of motor vehicle identification number (VIN), N.J.S.A. 2C:17-6(b), by "knowingly possessing a motor vehicle with a defaced vehicle identification number... valued at over $ " We gather from counsel's comments before the trial court that T.J. operated a small motorized dirt bike on and off-road while fleeing an officer. Judge Michael J. Blee attempted to conference the case once in September, three times in October 2014, and once in November 2

3 2014. The case was repeatedly adjourned to allow the two sides to negotiate a plea, and to permit the defense to review discovery and complete its investigation. As the court later observed, it was evident at the pre-trial proceedings that the defense was exploring whether the bike T.J. operated satisfied the definition of a "motor vehicle" as used in the eluding statute, N.J.S.A. 2C:29-2(b). On November 20, 2014, the court warned that the case would be scheduled for trial if a resolution was not reached. On the next conference date, December 9, 2014, the court ordered the juvenile to identify his expert and serve a report by December 23, Counsel appeared before the court again on December 19, The State dismissed the second-degree eluding charge and fourth-degree resisting arrest charge, and announced its intention to file a new complaint charging third-degree resisting arrest. December 22, The State then filed its new complaint on The State's decision followed service of a defense expert report indicating that the dirt bike T.J. allegedly operated did not constitute a "motor vehicle" under the eluding statute, apparently based on the size of its engine. See N.J.S.A. 2C:29-2(b) (defining second-degree eluding "while 1 The parties have not filed a transcript of the December 19 conference. We rely on the court's and counsel's representations of what transpired. 3

4 operating a motor vehicle"); N.J.S.A. 2C:1-14(n) (stating that "motor vehicle" as used in Criminal Code generally has the meaning accorded by N.J.S.A. 39:1-1); N.J.S.A. 39:1-1 (excluding "motorized bicycles" from the definition of "motor vehicle"). 2 As the prosecutor later explained, the State realized that it required an expert, which it did not have, to establish that the bike was a "motor vehicle." At the conference on December 19, defense counsel orally objected to the State's plan to file a new complaint; at the court's request, defense counsel set forth the objection in writing in a letter brief dated January 1, Defense counsel argued that the State's new complaint, coming after a trial date was set and discovery was complete, violated T.J.'s due process rights. The State argued that the third-degree resisting charge was, in essence, a lesser-included offense of the second-degree 2 The statute defines a "motorized bicycles" to mean: a pedal bicycle having a helper motor characterized in that either the maximum piston displacement is less than 50 cc. or said motor is rated at no more than 1.5 brake horsepower or is powered by an electric drive motor and said bicycle is capable of a maximum speed of no more than 25 miles per hour on a flat surface. [N.J.S.A. 39:1-1.] 4

5 eluding. The prosecutor also stated that "the charging was designed for plea negotiations" and argued that dismissal of the charge would "penalize the State for trying to effectuate a plea offer prior to trial." On January 2, 2015, Judge Blee granted the defense's motion to dismiss the third-degree resisting arrest charge. The court held that the late-filed complaint was prejudicial and unfair to defendant. The court rejected the State's argument that the third-degree resisting charge was, in essence, a lesser-included offense of the second-degree eluding charge; rather, it was an upgrade from the original fourth-degree resisting charge. The court concluded that the State presented no compelling reason why it did not initially charge third-degree resisting. The court reinstated the original fourth-degree resisting arrest charge, noting that the State dismissed the fourth-degree charge in anticipation that it could proceed on the third-degree charge. The State also expressed its intention to pursue a lesserincluded fourth-degree charge of alteration of motor vehicle identification numbers. The third-degree alteration charge required proof that the vehicle's value exceeded $500. N.J.S.A. 2C:17-6(b). Apparently unable or unwilling to marshal such proof, the State announced its intention to proceed with a 5

6 fourth-degree charge, which required proof of value between $200 and $500. Ibid. The State had not provided any discovery regarding proof of value until the end of December, when the State provided the defense with copies of Kelly Blue Book value estimates, of the kind upon which the complaining officer allegedly relied. To enable the defense to respond to the State's lesser charge, and its late-provided discovery, the court agreed to adjourn the trial. On February 23, 2015, the court heard oral argument on the state's motion for reconsideration. Judge Blee summarized the parties' written submissions. The court noted the State's reliance on a line of cases, including United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982); State v. Gomez, 341 N.J. Super. 560 (App. Div.), certif. denied, 170 N.J. 86 (2001); and State v. Bauman, 298 N.J. Super. 176 (App. Div.), certif. denied, 150 N.J. 25 (1997). These cases generally stand for the proposition that a court may not presume a prosecutor is motivated by vindictiveness when a charge is amended pre-trial, even if done after the defendant asserts a constitutional right. Instead, a court must find that the prosecutor acted with "actual vindictiveness." See Goodwin, supra, 457 U.S. at 380, 102 S. Ct. at 2492, 73 L. Ed. 2d at 85. The State also relied 6

7 on State ex rel. W.E.C., 81 N.J. 442 (1979), which the prosecutor argued permitted the State to file a new charge. The defense argued that addition of the third-degree charge violated T.J.'s right to a speedy trial under the fourfactor test in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972) (stating that a court should consider the length of delay, the reason for delay, the defendant's assertion of the speedy trial right, and prejudice to the defendant in assessing a speedy trial right claim). Defense counsel asserted that the State's delay in charging defendant with third-degree resisting arrest impaired its ability to prepare a defense. Counsel contended that, from the outset of the case, the defense focused on the issue of whether the dirt bike qualified as a "motor vehicle" under the second-degree eluding statute. The defense had not planned to address other elements of the offense, including "risk of death or injury to any person." N.J.S.A. 2C:29-2(b). However, in order to defend the thirddegree resisting charge, the defense would need to investigate facts related to the comparable element, "use[] [of] any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3)(b). 7

8 The officer apparently contended that T.J. was traveling forty m.p.h. The prosecutor argued that T.J.'s conduct posed a risk to a person who had been walking his dog in the area. Defense counsel stated that had the State raised the thirddegree resisting charge initially, the defense would have attempted to interview bystanders or other witnesses, including another juvenile who had been driving an all-terrain-vehicle (ATV) ahead of T.J., but who was not charged. Defense counsel wanted to retain an expert to examine the dirt bike, to provide an opinion as to whether it was capable of traveling forty m.p.h., as the complaining officer alleged. The retention of the expert, and the preparation of the report, would require an additional six weeks, if everything proceeded without any additional delays. The defense also argued that Goodwin was distinguishable, because the State's decision to "upgrade" the resisting charge was made after the case was placed on the trial list. Counsel conceded, however, that there is no plea cutoff in juvenile court as there is in adult court. Counsel also argued it was unfair that T.J.'s reciprocal discovery, which was intended to avoid surprise at trial, was used to develop new charges. Judge Blee denied the State's motion for reconsideration and amplified his reasons for dismissing the third-degree 8

9 resisting complaint. The court held that the new charge violated the juvenile's right to a speedy trial. Citing the Barker four-prong test, the court held that he would be prejudiced if compelled to proceed to trial on the charge because of the late notice. The court noted that the new charge was filed five months after the date of the original complaint, over two months beyond the ninety-day goal for resolution of juvenile delinquency cases. The court also found no excuse for the State's delay, noting that the State had sufficient information to charge the third-degree offense simultaneously with the other charges. The court was persuaded that the defense would be prejudiced by the State's delay in filing the third-degree resisting charge. The judge found that the defense reasonably focused its preparation on the nature of the vehicle used, based on the State's seconddegree eluding charge. Faced with a third-degree resisting, it would need to focus on T.J.'s alleged speed. Although the defense could retain an expert to examine the bike's capability to travel at the speed the officer alleged, the passage of time severely impaired the defense's ability to interview eyewitnesses. Moreover, the need to conduct additional discovery would further delay trial. 9

10 The court acknowledged that, pursuant to Bauman and Gomez, it would have been within the State's discretion to supplement the charges if it had been done "in a reasonable time...." However, allowing the State to amend the charges at such a "late stage in the proceeding" would have given the juvenile "inadequate notice to... prepare a proper defense," and "would be a violation of his fundamental due process rights...." Despite the prejudicial impact of the amendment, the court declined to find that the State acted vindictively. We subsequently granted the State's motion for leave to appeal. The State presents the following points for our consideration: POINT TWO 3 THE LOWER COURT'S DISMISSAL PREVENTED THE STATE FROM EXERCISING ITS PROSECUTORIAL DISCRETION TO BRING CHARGES SUPPORTED BY PROBABLE CAUSE. POINT THREE THERE WAS NO PROSECUTORIAL VINDICTIVENESS TO JUSTIFY DISMISSAL OF THE THIRD-DEGREE RESISTING ARREST CHARGE. 3 The State's first point pertained to the need to grant interlocutory review. 10

11 POINT FOUR THE STATE'S THIRD-DEGREE RESISTING ARREST CHARGE DID NOT VIOLATE THE [JUVENILE'S] RIGHT TO A SPEEDY TRIAL. II. We focus on the speedy trial issue, which we conclude disposes of the appeal. We apply a deferential standard of review to a trial court's determination to dismiss a complaint on the grounds that it violates a defendant's constitutional right to a speedy trial. We will disturb the trial court's decision only if it is "clearly erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009); State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). However, we owe no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts...." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Juveniles are entitled to a speedy trial. State ex rel. T., 159 N.J. Super. 104, 110 (App. Div. 1978); see also State ex rel. C.B., 173 N.J. Super. 424, 430 (App. Div. 1980), certif. denied, 84 N.J. 482 (1980). The right promotes their interest in minimizing "pretrial incarceration," pretrial "anxiety and concern" due to a pending complaint, accusation, or indictment, and delay that impairs a defendant's ability to present a 11

12 defense. Barker, supra, 407 U.S. at , 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. In order to determine whether a delay violates a defendant's speedy trial rights, the court must balance the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; see also State v. Cahill, 213 N.J. 253, 271 (2012) (reaffirming adherence to fourprong Barker test). The factors are interrelated, none is necessary or sufficient, and the court must consider them in light of other circumstances. Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. A court must engage in a "sensitive balancing." Ibid. However, as the "fundamental right of the accused" is implicated, "this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution." Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at A court must "consider the length of the delay in light of the nature of the charges and the complexity, or lack thereof, of the proofs required to establish each element of the offense." Cahill, supra, 213 N.J. at 277. In Cahill, the Court recognized the administrative time goals for trial of DWI cases, although it avoided deeming them try-or-dismiss deadlines. Id. 12

13 at 276. Mindful that experienced counsel stated that DWI cases can generally be tried within 90 to 120 days, the Court held that a sixteen-month delay to conduct a DWI trial after a remand infringed the defendant's speedy trial right. Id. at , 276. The Court noted that the delays were unacceptable in the case of "straightforward quasi-criminal offense." Id. at 273. In the case of a juvenile prosecution, the judge must give "special consideration... to the effect of dismissal or nondismissal on the rehabilitative aspect of the juvenile justice system." T., supra, 159 N.J. Super. at 114. On one hand, premature dismissal may deprive a juvenile of rehabilitation that he or she needs. Id. at On the other hand, delay as a result of the addition of a new charge may delay adjudication of initial charges, and the timely implementation of rehabilitative measures. Id. at 114. Reviewing the court's application of the Barker factors, we discern no clear error. The judge considered the prospective length of the delay in trial if the State were permitted to proceed with the third-degree resisting charge. The State filed the new complaint in late December 2014, five months after the original complaints were executed, and four months after they were filed with the court. The new complaint would have required a delay in the trial date, to allow the juvenile to 13

14 investigate the speed capabilities of the bike, and the alleged presence of a dog-walker or other pedestrians. In the context of a juvenile case, the court concluded that these delays were significant. We agree. According to established court management standards, a juvenile case is deemed to be in backlog after ninety days. A.O.C. Quantitative Research Unit, New Jersey Judiciary Court Management at i (2015), state.nj.us/quant/cman1512.pdf. While this standard is no more a try-or-dismiss standard than the standards for trial of DWI cases considered in Cahill, it is pertinent to determining what constitutes a lengthy delay under the circumstances. Delays in a juvenile adjudication undermine the efficacy of rehabilitation or correction. Juveniles grow up. Juveniles may also be more sensitive to delays, depending on the stage of their development. Thus, they may suffer greater uncertainty and anxiety than adults from the same period of delay. Judge Blee also concluded that the State did not present a compelling reason for its delay in bringing the new charge, which would in turn delay the trial. The court correctly noted that the State did not newly discover facts to support the complaint. The State possessed the evidential basis for the charge back in July, when the complaining officer signed the 14

15 initial complaints. The only change was the State's apparent realization that it lacked proof of an essential element of the second-degree eluding charge that the bike was a "motor vehicle." Defense counsel also promptly and timely invoked T.J.'s right to a speedy trial when the State filed the new complaint. We also discern no error in the court's assessment of the prejudice defendant would suffer from the delayed filing of the third-degree resisting charge. Given that the discovery exchanged between the parties is not in the record before us, we defer to the trial judge's determination that the State's delay impaired the defense's ability to address the third-degree resisting charge. The State apparently contended that T.J.'s resisting threatened harm to a pedestrian. The passage of time severely limited the defense's ability to find and interview local residents who would have a reliable memory of what they may have observed. The new charge also shifted the focus of the defense. Although both second-degree eluding and third-degree resisting have elements concerning harm threatened to others, the defense reasonably decided to focus on what it apparently deemed its strongest argument that the bike T.J. operated was not a 15

16 "motor vehicle." 4 With the new charge, the defense would be compelled to focus on the allegation that T.J. was traveling at a dangerously fast speed. Expert testimony would be needed to examine the capabilities of the bike. The defense would also need to consider conducting interviews of the other two juveniles who allegedly fled along with T.J. We shall not disturb the trial court's balancing of these factors, and its determination that proceeding to trial with the late-filed new charge would infringe upon T.J.'s speedy trial rights. Having reached this conclusion, we need only briefly address the State's remaining points. The State argues that 4 We also agree with the court's determination that third-degree resisting is not strictly a lesser included offense of seconddegree eluding. The former charge includes some elements not contained in the latter. See N.J.S.A. 2C:1-8(d). The State must prove a "substantial risk of... physical injury" in a prosecution of third-degree resisting under N.J.S.A. 2C:29-2(a)(3)(b). In the eluding prosecution, the level of risk is lower; the statute requires proof of a "risk of death or injury...." N.J.S.A. 2C:29-2(b). In the resisting prosecution, the State must prove the defendant "purposely prevents or attempts to prevent... an arrest." N.J.S.A. 2C:29-2(a). In the eluding prosecution, the State must prove that defendant knowingly defied a "signal... to bring the vehicle or vessel to a full stop" which is short of an arrest. N.J.S.A. 2C:29-2(b). Also, eluding must occur on a "street or highway" while resisting is not so limited. Compare N.J.S.A. 2C:29-2(b) with N.J.S.A. 2C:29-2(a). Cf. State v. Wallace, 313 N.J. Super. 435, 438 (App. Div. 1998), aff'd, 185 N.J. 552 (1999) (under the factual circumstances presented, resisting arrest by flight was merged into eluding conviction). 16

17 because there was insufficient proof to conclude its new charge was brought out of vindictiveness, there was no basis to dismiss the complaint on that ground. However, even if the State were not vindictive, the speedy trial right limits prosecutorial discretion to bring new charges. Furthermore, the Court's decision in W.E.C. does not dictate a different result. The Court in W.E.C., supra, addressed the court's power to correct errors in a complaint under Rule 5:20-1(d) without causing prejudice to the juvenile's ability to defend. 81 N.J. at In this case, the State did not seek to correct an error. It pursued a new charge, which would delay trial, to the prejudice of T.J.'s ability to defend, and to the detriment of his right to a speedy trial. We therefore affirm the court's order dismissing the December 22, 2014 complaint charging third-degree resisting, and reinstating the fourth-degree resisting charge. We remand for an adjudicative hearing. We do not retain jurisdiction. 17