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Friday, February 26, 2010

anti-stalking statute State v. Fareed M. Gandhi (A-101-08)

anti-stalking statute State v. Fareed M. Gandhi (A-101-08) 2-23-10
The jury charge in this case was not erroneous because
New Jersey’s anti-stalking statute, N.J.S.A. 2C:12-10,
reaches and punishes one who purposefully or knowingly
engages in a course of stalking conduct that would
cause a reasonable victim to fear bodily injury or
death. The statutory offense applies even if the
defendant is operating under the motivation of an
obsessed and disturbed love the purportedly obscures
appreciation of the terror that his or her conduct
would reasonably cause to the victim.

Tuesday, February 09, 2010


A-3094-08T4 2-09-10

Defendant's trial on charges of robbery of two victims,
burglary and related weapons offenses was conducted in a
courtroom in which the record is videotaped. During the course
of deliberations, the jurors asked to hear the testimony of one
of the victims again. The trial judge arranged for the jury to
view the video in open court and in the presence of defendant,
both counsel and the judge. The jury ultimately found defendant
guilty of the crimes, and the judge sentenced defendant to an
aggregate term of twenty-eight years, which is comprised of two
fourteen-year terms for first-degree robbery and concurrent
sentences for the remaining convictions.

In rejecting defendant's claim of prejudice from the replay
of the videotaped testimony, we assess the potential for
prejudice in light of the options available to the judge. And,
in affirming his sentence, we apply the standard of review set
forth in State v. Bieniek and State v. Cassady.

STATE V. JASON LEWIS and JEROME LEWIS A-2066-08T4 02-08-10

A-2066-08T4 02-08-10

Where police stopped vehicle at night in a neighborhood
known for drug sales based on evidence providing probable cause
to believe vehicle contained drugs, persons other than the
occupants who also had reason to believe the vehicle contained
drugs may have had access to the vehicle, and there was a
substantial question whether other police officers would have
been available to detain the occupants while an application was
made for a warrant, the State established the exigent
circumstances required to justify a search of the vehicle under
the automobile exception to the warrant requirement. Moreover,
the validity of the search was not affected by the fact that
drugs were found in a closed leather case because, when the
automobile exception applies, the police may search every part
of the vehicle and its contents that may conceal the object of
the search.

State v. Thomas Best (A-77-08) 2-3-10

State v. Thomas Best (A-77-08) 2-3-10

A school administrator need only satisfy the lesser
reasonable grounds standard rather than the probable
cause standard to search a student’s vehicle parked on
school property.

J.V. v G.D.A. Domestic Violence affirmed DOCKET NO. A-5080-07T35080-07T3




G. D'A.,
DOCKET NO. A-5080-07T35080-07T3




Argued October 21, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County, Docket No. FV-15-002209-08.

Donald M. Doherty, Jr., argued the cause

for appellant (Friedman Doherty, LLC,

attorneys; Mr. Doherty, on the brief).

Sasha C. Intriago argued the cause for

respondent (Koulikourdis and Associates,

attorneys; Peter J. Koulikourdis, of

counsel; Ms. Intriago, on the brief).


Defendant, G. D'A., a sometime actor, appeals from entry of a final restraining order entered against him after a trial at which he was found to have committed acts of domestic violence as defined by N.J.S.A. 2C:25-19a(13) and (14) by harassing and stalking his former girlfriend, J.V. See N.J.S.A. 2C:18-3 (harassment) and 2C:33-4 (stalking). On appeal, defendant argues that he was denied procedural due process because the evidence utilized by plaintiff, consisting of photographs of text messages, e-mails, cards, and letters, was not supplied to him prior to the trial, and the trial judge declined to adjourn the matter to permit him to obtain necessary rebuttal evidence.

The record discloses that, on May 20, 2008, plaintiff sought a temporary restraining order (TRO) against defendant. In her complaint, plaintiff alleged:

Def called her & played music, a love song. 5/19 - def emailed plt to log onto you tube, def posted sexual video of plt, with blog including plts phone #. Since June 2007, def emails, text messages, & mails letters to plt every other day of sexual nature. Def calls plt whore, slut, animal, spic, trashy.

In the space on the complaint provided to set forth any prior history of domestic violence, plaintiff alleged:

Since July 2007, def wants plt to return his calls & threatens to call child services if plt doesn't call him. Since Sept 2007 - def uses plts name to subscribe to magazines, plt is billed for them. Plt states in the past, def spit on her. Approx Jan 2008 - def called IRS about plt making money without claiming it. Def threatened to kill plain [sic] June 2007.

A hearing on the TRO was held before a hearing officer, who recommended that the requested relief be granted. The transcript of the hearing lists defendant as having appeared, but at oral argument on appeal, plaintiff's counsel stated that he was not present. In any case, defendant was served with the TRO at 1:40 p.m. on the day of its issuance. A hearing was scheduled to determine whether a final restraining order (FRO) should be entered.

On March 21, 2008, defendant filed for and obtained a TRO against plaintiff. The two matters were consolidated for purposes of an evidentiary hearing. Prior to the hearing date in the matter, defendant sought and was granted a one-week adjournment to permit him to retain an attorney. On the new hearing date defendant, appearing pro se, requested a further adjournment to September 2008, stating that both of the attorneys that he used were away for the entire summer. The judge denied an adjournment of that length, but indicated his willingness to again adjourn the matter for a short period to permit defendant to obtain representation. However, following several offers by the judge to grant a further brief adjournment, defendant determined to proceed unrepresented.

At the hearing, plaintiff testified that she and defendant had been romantically involved until June 2007 when she broke off the relationship. Thereafter, defendant filed charges against plaintiff for simple assault, but did not appear in court on the two occasions when the matter was scheduled for a hearing. Plaintiff additionally offered multiple photographs of text messages that she claimed were sent to her by defendant; numerous, lengthy e-mails from defendant; evidence of some of the approximately 300 magazine subscriptions that she claimed defendant had taken out in her name, thereby obligating her to pay the subscription price or to attempt to cancel the subscriptions; multiple cards and letters from defendant; evidence of seven allegedly unfounded reports to New York Child Protective Services that plaintiff claimed were originated by defendant; and evidence that defendant had posted sexually explicit videos of plaintiff on YouTube and that the videos had been picked up by pornographic sites. Plaintiff testified that, as a result of the postings, she had received unsolicited calls and messages from unknown men seeking sex. Additionally, plaintiff testified that, as the result of defendant's conduct, she was afraid of him, and when going out, attempted to disguise her appearance.

During the hearing, defendant contested much of plaintiff's evidence. In connection with the text messages, he first claimed that they had been sent two years ago, then that they must have been sent during a fight occurring one year earlier and, in another iteration, he denied that he had sent them and requested an opportunity to obtain phone records as proof. However, the judge denied his request, stating: "I offered you an opportunity to put this off and you wanted to go forward today, we're going forward today." Additionally, defendant denied sending some of the e-mails; he admitted to having reported plaintiff to Child Protective Services on only one occasion, arising out of plaintiff's alleged assault upon defendant, which was witnessed by plaintiff's daughter; he claimed that plaintiff had access to many of the passwords on his multiple e-mail accounts, permitting her to originate messages attributed to him; and he denied obtaining magazine subscriptions in plaintiff's name.

Significantly, defendant admitted to sending some of the e-mails, including an e-mail dated March 2, 2008, with the subject line "bigfazeech sent you a video," which contained a provocative photograph of plaintiff, the statement "[J.] I love you and I have soo much to say to you!", and an invitation to watch the video. Defendant testified that both he and plaintiff video recorded the couple engaging in sexual acts with the other's permission, and that the videos portrayed both oral and anal sex. However, defendant admitted that he did not have plaintiff's permission to post the videos. Defendant initially stated that he posted the videos in retaliation for calls from plaintiff made when she was having sex with others and from plaintiff's male friends. However, he had no proof of such calls, and the judge denied his request for authorization to obtain the necessary phone records. Later, defendant admitted that he had posted the videos with the knowledge that plaintiff would be upset by the dissemination of naked images of her. Defendant testified that he retained a disc containing approximately twelve sexually explicit videos, and that he had posted five to ten, although he claimed the one sent to plaintiff along with the provocative photo on March 2 to have been "nice."

During the course of his testimony, defendant also admitted to sending plaintiff an additional, lengthy e-mail on March 2, 2008 which contained a link to a video posting and the message that defendant continued to love plaintiff, that he would be working for one year at a movie studio near plaintiff's home, that he was in the process of buying a home in the area, and that he knew plaintiff was hiding from him because he thought he "would of ran into [plaintiff] at least a few times by now."

In support of his own request for an FRO, defendant testified that plaintiff telephoned him when she was having sex with others, so that he could hear their love-making, and that male friends of plaintiff made harassing calls to him. However, he offered no competent proof of either type of conduct, but merely contended that he could recognize plaintiff's breathing on a recording played to the judge — a contention that the judge later rejected as not credible.

At the conclusion of the hearing, the judge rendered an oral opinion finding no basis for entry of a FRO against plaintiff, but also finding that substantial evidence warranted entry of a FRO against defendant as the result of his relentless — if misguided — effort to reunite with plaintiff in the period from June 2007 until May 20, 2008 when plaintiff obtained a TRO against him. In this regard, the judge found defendant to have committed acts of domestic violence by harassing plaintiff with e-mails and with a video posting that he knew would anger her.

In discussing the e-mails, the judge focused particularly on an e-mail that defendant admitted sending, dated April 29, 2008, which the judge read partially into the record, as follows:

1st off I want to say is I sent an attachment which you could download below of your new boyfriend leaving me messed up and threatening messages and they are very twisted some of the things he says. Do you know what I know is sick. . . . I know you[r] friends are all white trash low lives that get abortions all the time and they are the biggest scum of the earth and they will all go to hell for there [sic] crimes and there [sic] sins, they are all horrible people and are dirty and they breakup their own families[.] Disgusting. You should be in jail for murder and for everything that you did and I still have this tape and downloaded what you did in my car that day and never re[]leased it . . .

In another e-mail that defendant admitted sending, from which the judge quoted, defendant stated:

I really want to make peace and settle and fix this before I start my films, don't you? It will really mean a lot to me. Think about it[.] I taught you everything about the world. Nobody else showed you what I did. Think about all the 1st time experiences that you had with me.

The judge then noted that the e-mail concluded with defendant proposing plaintiff for a lead role in one of his four productions. The judge concluded: "[Defendant's] obsession with [plaintiff] is as bizarre as it is obsessive."

Additionally, the judge noted that defendant had admitted to posting at least one video of plaintiff's naked buttocks on YouTube, thereby subjecting plaintiff to obscene propositioning by numerous anonymous third parties.

Summing up the content of the e-mails that defendant admitted sending, the judge concluded that "[t]hese are fairly the words of an obsessive man who does not realize that this relationship has ended[,] who does not take no for an answer[,] and who will not cease to pursue [plaintiff] without being barred by court process." The conduct, the judge found, constituted both harassment and stalking as recognized by the Court in H.E.S. v. J.C.S., 175 N.J. 309 (2003). Accordingly, the judge entered a FRO against defendant. Additionally, he ordered that the local police department seize the DVD that defendant admitted retaining, which contained sexually explicit videos of plaintiff. Upon defendant's representation that he was unemployed, the judge declined to award counsel fees in plaintiff's favor.

On appeal, defendant claims that he was unaware of the evidentiary basis for plaintiff's claims against him until the FRO hearing had commenced, and that although he had viable defenses, he was unable to present them because of lack of pre-trial notice of plaintiff's evidence and the judge's refusal to grant an adjournment to permit his to obtain contrary proofs. Thus, defendant contends, his due process rights were denied, and that the hearing should not have proceeded in a summary fashion and without discovery, contrary to the court's decision in Depos v. Depos, 307 N.J. Super. 398, 399-400 (Ch. Div. 1997).

We are satisfied, however, that the allegations made by plaintiff in her complaint provided sufficient notice of her claims and the likely evidence in support of those claims, since those allegations included defendant's YouTube posting; his e-mails, text messages and letters; his use of epithets; his threats to call Child Protective Services; and his use of plaintiff's name to obtain magazine subscriptions. Moreover, in contrast to the twenty-four hour preparation period found to be inadequate in H.E.S., supra, 175 N.J. at 321-24, the two weeks that intervened between service of the complaint and TRO on defendant and the conduct of the FRO hearing should have provided sufficient time for defendant to marshal his defenses, yet he presented no documentary evidence whatsoever at the hearing. Further, if defendant later obtained evidence that he claimed to be relevant to the charges against him, he could have sought relief from judgment pursuant to R. 4:50-1. He did not do so. Nor did he present any evidence on appeal that would tend to establish the validity of his position.

Moreover, we note that the judge's decision was premised solely upon the content of e-mails that defendant admitted to sending and upon an admitted posting of a video of plaintiff that, at very least, depicted her naked buttocks. Since defendant admitted such content, it was not necessary either for plaintiff to offer the video into evidence or for the judge to have viewed it.

We reject defendant's argument that cell phone calls between him, plaintiff, and plaintiff's male friends constituted "the primary basis upon which the final restraining order was entered" and that he should have been granted an adjournment to establish who called whom. As our summary of the judge's decision reveals, the judge cited the lack of evidence of phone calls from plaintiff and her male friends primarily as a basis for rejecting defendant's request for an FRO, a determination on defendant's affirmative claim that has not been appealed. Although the judge also used the lack of such evidence in rejecting defendant's position that he posted the video of plaintiff on YouTube in retaliation for the allegedly harassing calls, we note defendant's eventual admission that he posted the video in order to harm plaintiff.

In sum, we are satisfied that plaintiff has proven by a preponderance of the evidence that she was a "victim of domestic violence" as defined by N.J.S.A. 2C:25-19d, subjected to domestic violence consisting of harassment and stalking, N.J.S.A. 2C:25-19a(13) and (14), and that a FRO was properly entered pursuant to N.J.S.A. 2C:25-29b.


Plaintiff claimed that she recognized defendant's handwriting on some of the subscription order forms, but was unable to produce those forms at the hearing.

This comment appears to refer to an incident during which, defendant claims, plaintiff repeatedly stabbed him in the arm with a pen and damaged his car after finding evidence that suggested defendant was cheating on her.

It appears, nonetheless, that the videos posted of plaintiff remain present on multiple pornographic sites.

We note that defendant had the burden of proof on that claim, and that his due process arguments are thus inapplicable.

Y.W.v Y.J. Domestic Violence affirmed DOCKET NO. A-2769-08T12769-08T1











DOCKET NO. A-2769-08T12769-08T1

Submitted December 14, 2009 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1235-09.

Law Offices of Weinstein & Weinstein, attorneys for appellant (Edward R. Weinstein and Diane V. Araujo, on the brief).

Respondent has not filed a brief.


Defendant Y.J. appeals from a final restraining order entered by the trial court on December 22, 2008, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

Plaintiff testified with the assistance of an interpreter who translated her testimony from Mandarin Chinese into English. She stated that the parties were divorced in May of 2008. It appears from the record that plaintiff has primary residential custody of the children and defendant has the right to visitation.

Plaintiff testified that on December 7, 2008, defendant brought the parties' children to a pet store, and around 6:00 p.m., plaintiff arrived for the exchange of the children. Plaintiff stated that she and defendant got into an argument about a mortgage. She asserted that defendant called her a whore and said that she flirted with other men.

Plaintiff further testified that defendant threatened her with his arm. She stated that defendant "turned to get in front of [her] and he . . . landed a fist on [her] face." The police were called to the scene and plaintiff was taken to a hospital in an emergency vehicle. She testified that her "face was swollen for four to five days."

Defendant disputed plaintiff's version of the incident. He said that he was in front of the pet store and plaintiff kicked him in the leg. He claimed that plaintiff attacked his head, neck and face. Defendant acknowledged that he raised his right arm. He said that he turned around and tried to protect himself. Defendant stated, "[m]aybe I catch her or something when I turn around with my arm."

Defendant additionally testified that the parties previously had disputes about visitation with the children. He stated that, on June 1, 2008, plaintiff kicked, pinched and smacked him when he was at her shop. He said that plaintiff scratched his neck. He presented a photo showing the scratches. Defendant also said there had been an earlier incident when plaintiff refused to allow him to see the children.

The trial court rendered its decision from the bench. The court noted that the parties had "a very volatile relationship" that was not improving "despite the fact that the parties have now divorced." The court determined that defendant had committed a simple assault. The court commented, "[w]hat we have here is more than a simple slap. We have a punch to the face which require[d] the [p]laintiff to seek medical attention." The court found that there was "no doubt from the testimony that an assault took place."

The court additionally found that there had been a prior incident of domestic violence between the parties and disagreements over the divorce. The court stated, however, that whatever plaintiff was doing with regard to the parties' marital agreement did not give defendant "the right to engage in physical violence." The court determined that a restraining order was necessary to protect plaintiff from future acts of domestic violence. The court entered the restraining order in conformance with its decision and this appeal followed.

Defendant raises the following arguments for our consideration:



a. The lower court erred in finding that the Plaintiff proved all of the elements of simple assault in a domestic violence case by a preponderance of the evidence when there is no evidence to support intent to create bodily injury on the part of the Defendant.

b. The lower court's verdict is against the weight of the evidence and lacks adequate, substantial and creditable evidence to support a finding of assault.





We have carefully reviewed the record in light of these arguments and the applicable law. We are convinced that defendant's contentions are entirely without merit. We affirm the entry of the final restraining order substantially for the reasons stated by Judge James F. Hyland in the decision that he placed on the record on December 22, 2008. We add the following brief comments.

The standard of review that governs our consideration of defendant's appeal is well established. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

"Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

We are satisfied that there is sufficient credible evidence in the record to support the judge's findings that defendant committed a simple assault, as defined in N.J.S.A. 2C:12-1(a)(1). The statute provides in pertinent part that a person is guilty of this offense if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" Ibid. Defendant argues that the evidence was insufficient to show that he acted either "purposely, knowingly or recklessly[.]"

We disagree. The trial court accepted plaintiff's testimony that defendant "landed a fist on [her] face," which required medical attention and caused plaintiff's face to be swollen for several days. In our judgment, that testimony was sufficient to establish the mental state required for a simple assault under N.J.S.A. 2C:12-1(a)(1).

Defendant also argues that the court erred by failing to credit his claim of self-defense pursuant to N.J.S.A. 2C:3-4, which states that

the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Defendant testified that the parties were involved in previous domestic disputes, including an altercation that took place on June 1, 2008, when plaintiff attacked and scratched him.

Defendant maintains that, because of the June 1, 2008 incident, he reasonably believed that he was in danger of imminent bodily injury when he and plaintiff argued on December 7, 2008. The trial court correctly found, however, that whatever happened between the parties on June 1, 2008, did not excuse defendant's conduct in punching plaintiff in the face on December 7, 2008.


J.D v M.F. Domestic violence affirmed DOCKET NO. A-1510-08T11510-08T1










DOCKET NO. A-1510-08T11510-08T1

Submitted December 9, 2009 - Decided

Before Judges Stern and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-203-09.

M.F., appellant pro se.

J.D., respondent pro se.


Following a querulous trial, Judge John R. Rauh entered a final restraining order (FRO) in favor of plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on findings that defendant harassed plaintiff. In this latest appeal between the parties, defendant argues that he was denied a fair trial and that his conduct did not amount to domestic violence. We reject defendant's arguments and affirm.

Defendant and plaintiff were in a long-term unmarried relationship spanning 1993 to 2006, and two children were born as a result of this liaison. After the parties split they first engaged in palimony litigation in the Family Part, later to be by this court.

The predicate events surrounding the current appeal took place in the early morning hours of September 19, 2008. Defendant took flash-enhanced photographs outside of plaintiff's residence, allegedly to gather evidence to present in court against plaintiff and her boyfriend in connection with the parties' then-pending dispute. Plaintiff and her boyfriend were finishing up their showers and getting ready to go to bed when they saw flashes of light outside the bedroom window. They witnessed defendant taking photographs from the inside of his vehicle, before he proceeded to drive away. Defendant fully admitted to these actions at the FRO hearing:

THE COURT: Well, 1:45 [a.m.], you concede that you're there. I guess you take issue with whether you stopped or not, but they may have seen flashes. So, what were you doing, regardless of whether you stopped or not?

MR. F[.]: I was taking pictures showing his truck in front of her house at that time of the day.


MR. F[.]: Well, if I — if I divulge that information, it kind of gives my hand away for — for the case that I'm trying to pre[s]ent. And she can go talk to her attorney about it and come up with a defense. But I can assure you that — .

In the early afternoon of September 19, 2008, around lunchtime, plaintiff applied for, and was granted, a temporary restraining order (TRO) against defendant. Later that day, defendant was served with the TRO and less than an hour later, he mailed a motion to the Family Part against plaintiff for increased visitation time with the parties' minor children.

In plaintiff's TRO application, she focused on the earlier events of that morning, but also mentioned several other incidents during which defendant tried to force himself on her, or angrily confronted plaintiff's boyfriend and herself. The complaint stated, in response to Question 1, "[a]ny prior history of domestic violence reported or unreported?" the following:

June 08, Def[endant] was parked outside pla[intiff's] residence awaiting pla[intiff's] boyfriend to exit the residence. Def[endant] began taking pictures of pla[intiff's] boyfriend [and] asked pla[intiff's] boyfriend how the accommodations w[]ere[?] Pla[intiff] has filed for three TROs in the past for incidents including physical assault [and] harassment. Def[endant] has climbed thr[ough] pla[intiff's] window early in the morning took off his clothing [and] attempted to have relations w[ith] the pla[intiff]. Pla[intiff] told def[endant] she was going to call the police, def[endant] got dressed [and] left the residence. Pla[intiff] reports while parties were going thr[ough] their separation def[endant] would come to the residence [at] various times. During another occasion pla[intiff] had locked her doors [and] yet def[endant] was able to gain entry [and] harass pla[intiff].

On October 1, 2008, the parties appeared before Judge Rauh on plaintiff's application for a final restraining order (FRO). Because both parties appeared pro se, the court tried to direct their testimony and guide the questioning of both plaintiff and defendant. He was marginally successful. In addition to discussing the immediate incident of defendant's photographing plaintiff's residence and the boyfriend's truck, the court asked plaintiff, "[a]nything else you think I should know?" Plaintiff proceeded to elaborate on several prior incidents and confrontations——including numerous hearsay references——only some of which were mentioned in her current complaint.

Judge Rauh then allowed defendant to present his version of the events, questioning him about the photographing incident and the other alleged confrontations. The parties interrupted each other and proceeded to bicker between themselves as the court listened to the resentment-filled dialogue. The questioning continued with some objections by both parties as to the line of questioning, while the judge allowed certain testimony and overruled some questioning about irrelevant issues.

At the end of the parties' presentations, Judge Rauh deliberated upon all of the testimony and the incidents alleged, and found that the photography alone——and especially in addition to the other incidents——was evidence of harassment, warranting the issuance of a FRO. Specifically, Judge Rauh found the following:

[Y]ou being out there, sir, quarter of two in the morning, in my view qualifies, in and of itself as harassment. Even assuming that you were trying to build your case, it could not have any other affect but to annoy or alarm Ms. D[.]. And especially in light of the prior history.

* * *

And quite frankly, I want to make a comment on your presentation here today. It's not — it just doesn't seem, quite frankly, to be coherent in the sense that you're thinking clearly, sir. And, you know, given your presentation here today, if I were the Plaintiff, I would be concerned. Your theory of the case that she somehow knew that you were going to file a custody motion because your step-daughter had been there, it's simply — those are dots that you can't connect and you concede to being out there at quarter of two in the morning taking pictures. And that's harassment, sir, regardless of whether you were parked or not.

Defendant took issue with the ultimate conclusion of the judge and filed an informal and instantaneous motion for reconsideration, which Judge Rauh denied that same day. This appeal resulted.

Defendant claims that the trial court erroneously considered acts of domestic violence that were not alleged in plaintiff's complaint; that defendant's conduct was not actionable as domestic violence; that defendant was denied due process of law by being deprived of a full opportunity to present his case and to defend himself; that the record in the Family Part was not a complete and full record, which prevents proper appellate review; and that the trial court applied an improper burden of proof. We have considered all of the arguments of the parties, being careful to excise evidence contained in both parties pro se briefs and appendices that was not presented to the Family Part, and conclude that the FRO was validly issued. We affirm.

This court's review of a Family Part determination is a narrow one, and the findings of the trial court are not to be disturbed, "unless [the appellate court] is convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). On the other hand, a trial court's interpretation of the law and the consequences that flow from established facts are not entitled to any special deference. Thus, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

J.D., as plaintiff, had the burden at the FRO hearing of satisfying the enumerated elements of harassment. The legislature has characterized harassment as an offense when a person acts "with purpose to harass another . . . [and] [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(c). Critically, it must be determined that the defendant had a "conscious objective" to harass the plaintiff; the mental state is a central element to this finding. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). A finding that defendant acted with the intent to "alarm or seriously annoy" is "integral" to a determination of harassment. Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004) (citing E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)).

For the most part, defendant spins his argument around the alleged lack of due process that he received during the FRO hearing. Our courts have dealt with the issue of due process during FRO hearings, noting the seriousness of such charges, and finding that a defendant must be given ample opportunity to defend himself against the allegations. Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006) (citing Bresocnik v. Gallegos, supra, 367 N.J. Super. at 181).

Both defendant and plaintiff appeared pro se in this proceeding, and our courts have noted that in pro se trials, "a judge often has to focus the testimony and take over the questioning of the parties and witnesses." Id. at 543. This does not mean, however, that such questioning may be done "at the expense of the parties' due process rights." Ibid.

When courts consider evidence in order to make a predicate finding pursuant to N.J.S.A. 2C:33-4(c), "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Cesare, supra, 154 N.J. at 405. In Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995), we noted that the PDVA mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the parties, including previous threats, harassment, physical abuse, and in consideration of whether immediate danger to the person or property is present.

This court has also considered cases in which a defendant's due process rights were violated when the trial judge entered an FRO based largely on incidents alleged in an earlier complaint, none of which was raised in the complaint before the court. J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998). It has been further held that "[a]t a minimum, due process requires that a party in a judicial hearing receive notice defining the issues and an adequate opportunity to prepare and respond . . . [T]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice." H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003).

It is defendant's position that he was surprised by plaintiff's additional allegations and was not offered time or ample opportunity to defend himself against her accusations. This argument is ill-conceived. Defendant and plaintiff had been involved in numerous rounds of litigation since their separation. Defendant was not unfamiliar with the legal process, being savvy enough even to prepare, and then mail for filing, a custody modification motion on the very day the present domestic violence complaint was filed.

More importantly, plaintiff previously mentioned many of the events she testified to at the FRO hearing in her September 19, 2008, complaint. In addition to the photographing incident at 1:45 a.m., plaintiff highlighted 1) the time defendant inappropriately approached her new boyfriend, 2) the previous domestic violence proceedings with defendant, 3) the morning defendant climbed into her window and tried to force himself on her, and 4) the other times defendant was able to gain access to the residence in order to allegedly harass her. It was likely hardly surprising to defendant that plaintiff would raise these issues regarding the parties' prior contentious history at the FRO hearing.

Unlike J.F., the trial court did not base its decision to issue an FRO solely on other accusations not listed in the complaint, ignoring the sole reason the restraining order was sought in the first place. Judge Rauh looked at the totality of the circumstances and determined that the innocuously-looking photography of plaintiff's residence at 1:45 a.m. was in fact harassment, especially so in light of the other incidents between the parties, of which there was fair notice to defendant.

Defendant further argues that the trial court failed to establish any actionable offense, specifically domestic violence and harassment under N.J.S.A. 2C:33-4(c). Defendant alleges that plaintiff is merely using the vehicle of a PDVA proceeding in order to "secure rulings on critical issues such as support, exclusion from martial residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin." Defendant believes that because he was in the process of submitting a motion for increased visitation, plaintiff beat him to the punch by seeking an FRO in order to prevent him from being successful on his concurrent visitation motion.

Judge Rauh properly rejected defendant's theory. The court went on to consider all of the evidence before it, correctly finding that based on the past confrontations between defendant and plaintiff, defendant had an intent to harass plaintiff when he appeared at her residence at 1:45 a.m. taking flash-enhanced photographs. The animosity between defendant and plaintiff was clear; this incident was merely one of many where defendant purposely annoyed and harassed plaintiff.

Our courts have consistently stated:

A finding of a purpose to harass may be inferred from the evidence presented. State v. McDougald, 120 N.J. 523, 566-67 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). Common sense and experience may inform that determination. State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478, (1978).

[State v. Hoffman, 149 N.J. 564, 577 (1997).]

The trial court was correct in its assessment of defendant's intent to "seriously alarm or annoy" plaintiff. While defendant's intent to collect evidence for a custody proceeding may have been a valid one, the method in which he collected the evidence and his prior course of conduct in communicating with and confronting plaintiff points to a more malevolent state of mind.

Defendant claims that his due process rights during the hearing were violated because he was deprived of the chance to present his case in full and was denied the opportunity to defend himself properly. Defendant specifically takes issue with the fact that he was not permitted to ask any questions of the boyfriend about the movement of defendant's vehicle in an attempt to impeach plaintiff's testimony.

Defendant argues, "[w]hether I was parked or just driving by the house, should be a critical issue in determining my specific intent and the harassing extent of the act in question." By truncating the presentation of this theory, he further asserts, "the court committed a fundamental and egregious error by denying me my opportunity to present my own case and thus denied me of my right to due process, essentially admitting that `its mind was made up.'" From our review of the record, defendant was allowed an appropriate opportunity to put forward his case and to defend himself, even after the trial court determined that the parked-or-moving-vehicle issue did not matter to the admeasurement of harassment. The trial judge did not permit defendant to belabor that irrelevant issue, and we are convinced that this determination was well within the judge's range of principled discretion.

Defendant was also permitted to question plaintiff about the circumstances surrounding the photography event, specifically about whether or not she felt harassed or threatened that night. He was also permitted to portray his theory of the case: plaintiff was using the FRO proceedings as a way to wound his application for increased visitation. Judge Rauh ultimately concluded that it was a stretch to connect the filing of the visitation motion with the issuance of a TRO on the same day, and dismissed defendant's theory of the case as implausible and unfounded.

Defendant's next due process argument is an attempt to persuade this court that the trial judge did not give a complete and clear basis for his finding that defendant had harassed plaintiff. However, when such an error in fact-finding of a trial judge is alleged, the scope of appellate review is limited. This court will only decide whether the findings of the trial judge could reasonably have been reached on sufficient or substantial credible evidence that was presented on the record. Due regard is given to the trial court's ability to judge the credibility of the parties and the evidence presented. In re Taylor, 158 N.J. 644, 656 (1999); State v. Locurto, 157 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Alternatively, "[w]hen the reviewing court is satisfied that the findings and result are supported by sufficient credible evidence present in the record, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).

It should also be noted that such decisions made by a trial court are based on the information presented to it are based on judicial and human experience, and should only be disturbed if they are clearly so "wide of the mark." Ibid. (citing Johnson, supra, 42 N.J. at 161). Our courts have consistently held that "[b]ecause a trial court `hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

In this case, Judge Rauh considered the wealth of information presented to him by the parties regarding the current allegation of harassment, in addition to the prior relationship among plaintiff, defendant, and plaintiff's boyfriend. Judge Rauh was clearly in the best position to understand the issues, to ascertain whether the parties' presentations were credible, and to determine whether defendant actually purposely harassed plaintiff in violation of N.J.S.A. 2C:33-4(c). Locurto, supra, 157 N.J. at 471.

Judge Rauh explained why he was issuing an FRO on the grounds of harassment. He was not required to write a treatise to explicate his rationale; we find that he sufficiently set forth reasons that are fully capable of a thorough appellate review.

Defendant's final argument regarding due process revolves around the burden of proof that is required for domestic violence cases under the PDVA. Defendant claims that the FRO should be vacated because the judge employed the preponderance-of-the-evidence standard of proof, rather than the clear-and-convincing standard. We recently concluded that the Legislature was not constitutionally required to impose a clear-and-convincing standard for the adjudication of domestic violence matters. Crespo v. Crespo, 408 N.J. Super. 25, 37-40 (App. Div.), leave to appeal granted, N.J. (2009). Thus, we find no merit in the argument contained in defendant's brief.

This brings us to defendant's final point, a concern about contradictory results between courts. Defendant points to his recent municipal court acquittal of the predicate act of harassment three months after the entry of the FRO as a basis to undo the FRO. The acquittal of a petty disorderly persons offense is simply the outcome of a process that required the much higher standard of proof: beyond a reasonable doubt. See State v. Grenci, 197 N.J. 604, 622 (2009) (the State is compelled by the state and federal constitutions to bear the burden of proving the defendant guilty beyond a reasonable doubt); State v. J.T., 294 N.J. Super. 540, 545-46 (App. Div. 1996) (reasonable doubt standard applies for all crimes, disorderly persons offenses, and petty disorderly persons offenses). Given the different burdens of proof between a domestic violence FRO proceeding and a petty disorderly persons trial, there is nothing inconsistent about defendant's experience that would warrant our intervention or the undoing of the FRO.

To the extent that we have not addressed any issue or contention raised by defendant, we do not find it to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).





DWI dismissed on speedy trial grounds State v Iskander DOCKET NO. A-3134-08T4

DWI dismissed on speedy trial grounds





DOCKET NO. A-3134-08T4


Argued November 5, 2009 – Decided

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 05-2007.

Defendant John R. Iskander appeals from a February 4, 2008, judgment of conviction of driving while intoxicated (DWI) on which a sentence of license revocation for ten years, ninety days inpatient and outpatient rehabilitation, ninety days community service, and various fines and penalties were imposed. Defendant entered a conditional plea, preserving his right to appeal the denial of his requests for a speedy trial, a jury trial, and suppression of certain evidence. We reverse.
Because the issues on appeal have been limited to the speedy-trial and jury-trial issues, our discussion of the facts is limited to those bearing on these two issues. On August 28, 2003, Rutgers University Police Officer Matthew Ganzer charged defendant with various motor-vehicle violations, including his third DWI offense. Ganzer observed defendant traveling at a high rate of speed on Route 1 in New Brunswick. He followed defendant onto Ryders Lane, noting that the vehicle's turn signal was white. He stopped defendant and asked for his driver's credentials. After observing defendant's hands, eyes, and speech, and hearing his admission to drinking one beer, Ganzer had defendant recite the alphabet from C to T and perform a finger-dexterity test. This caused him to ask defendant to exit his vehicle and perform additional tests, which defendant refused, performing only the horizontal gaze nystagmus test. Ganzer formed an opinion that defendant was impaired based on the appearance of his eyes, smell, demeanor, and refusal to perform balance tests.
Defendant was summoned to appear on September 9, 2003. His attorney sent a letter of representation on September 4, 2003, in which counsel waived arraignment on his behalf and entered a not-guilty plea. He demanded trial by jury, advised the municipal court judge and State that he intended to move to suppress evidence, and requested discovery from the State. He also demanded a speedy trial pursuant to the Sixth Amendment of the United States Constitution and Article 1, paragraph 10, of the New Jersey Constitution. He asked to have the arraignment on September 9 cancelled and to be advised of the next court date.
Defendant's trial was scheduled for October 29, 2003, at which time the State was represented by counsel for Rutgers. It was not until that date that the State complied with defendant's discovery request, and defendant sought a two-week adjournment to have an opportunity to review the discovery provided. However, defendant's counsel on October 30, 2003, again demanded a copy of any videotapes or audio tapes and various other discovery that had not been supplied. The matter was again listed for trial, but not until March 17, 2004. The record does not disclose why the case was carried for four and one-half months. In the meantime, the State finally provided the videotape of the incident on January 6, 2004, but did not produce the balance of the discovery.
When the parties appeared on March 17, 2004, the North Brunswick Assistant Prosecutor advised the municipal judge that there had been a miscommunication between Rutgers and the township prosecutor about the discovery defendant requested. Both attorneys sought an adjournment until April 2004 because defense counsel would be out of the country until April 1, 2004. Ganzer was apparently not in court that day, and unbeknownst to the parties, he had been mobilized and was to ship out to Cuba on April 1, 2004. Upon returning to this country, defense counsel wrote to the municipal judge on April 7, 2004, asserting defendant's constitutional right to a speedy trial, citing State v. Gallegan, 117 N.J. 345, 355 (1989), and State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999).
A new trial date was eventually scheduled for June 9, 2004. This time, counsel for Rutgers represented the State. Defendant's attorney stated that he was ready to proceed with the trial. Counsel for the State, however, said that he sent a letter to the judge on April 1, 2004, asking to have the matter placed on the inactive list due to Ganzer's mobilization. He sought to have the matter carried until Ganzer's return in May 2005. Defendant objected that Ganzer was not the State's only witness and asked for dismissal of the charges, noting that the case had already run afoul of the sixty-day trial requirement for drunk-driving offenses. The State replied that it intended to rely primarily on Ganzer's testimony and requested a further, lengthy adjournment. The judge denied the motion to dismiss for lack of a speedy trial and adjourned the case, but did not set a new trial date from the bench because it was not his "practice" to "schedule cases." Indeed, no one scheduled a trial date for a very long time.
On June 16, 2004, counsel for Rutgers wrote to the assignment judge in Middlesex County apprising him of Ganzer's mobilization and the number of cases necessitating his appearance. He alerted the assignment judge to the invocation of speedy-trial rights and counsel's request that the matters be placed on the speedy-trial list. Counsel sought his guidance on what to do when police officers were called to active duty. The assignment judge responded that he would consider the matter and "get back to [counsel] shortly," but the record does not contain any further communication from him.
On September 20, 2004, defendant filed a formal written motion to either dismiss for failure to timely prosecute or to schedule a speedy trial, relying on the record and the brief submitted with the motion. An opposing certification from counsel for Rutgers asserted that defense counsel was granted an adjournment to permit him to review discovery, that there had been fruitless plea discussions in November 2003 and a subsequent request to list the matter for trial. He then averred that there had been a joint request for adjournment on March 17, 2004, to "enable the parties to procure their respective discovery," which the judge granted. He pointed out that on June 9, 2004, the judge denied defendant's motion for dismissal and adjourned the case, but denied the State's application to have it placed on the inactive list. He apprised the judge of his unsuccessful efforts to secure input on that issue from the assignment judge.
The judge did not rule on defendant's written motion for over one year and the case sat in limbo until January 13, 2006, when the case was finally relisted for a status conference. The judge advised that he did not have sufficient time to try the case and would have to set it down for a special session on February 10, 2006, a date when defense counsel was not available. Defense counsel pressed defendant's motion to dismiss, arguing that defendant had suffered prejudice from the inordinate delay, and that he had relocated, married, and fathered children in the meantime. He also argued that defendant did not have to show prejudice if the delay was long enough, citing Farrell, supra, 320 N.J. Super. 425, and sought dismissal, not an adjournment. The State opposed dismissal, arguing there were unique circumstances in this case. He admitted that Ganzer had returned from Cuba in May 2005. Defense counsel said that Ganzer's presence in New Jersey for eight months just highlighted the failure to prosecute in a timely fashion. Defense counsel admitted he learned late the previous fall that Ganzer had returned, but argued he had no legal obligation to request this matter be listed for trial, with which the judge agreed. Counsel for Rutgers replied that "Ganzer did inform [sic] that this summer he was well aware that this case was still pending and he, in fact, he notified our office who contacted this [c]ourt and got the case rolling around June."
The municipal judge denied the motion to dismiss, finding that "a lot" of the delay "was out of the control of any of the princip[al]s involved in this matter. And without the officer's availability of that extended period of time, not only did the case not get moved, but I think because of that it sort of added to the delay." He stated that the matter would be set down for a mutually convenient special session.
Defendant's municipal court trial commenced on March 3, 2006, some 921 days after the charges were issued. Testimony was taken from Ganzer, during which defendant moved to dismiss on probable-cause grounds. This motion was denied and Ganzer continued his testimony, which was then interrupted by a Miranda motion during which defendant testified. Ruling on the suppression motion was reserved for briefing, Ganzer completed his testimony, and the case was continued. The judge allowed two months for briefs, although the attorneys sought only half that time. No date for the continuation of the trial was set, the judge remarking that counsel for Rutgers would "be consulted on availability based upon the nature of . . . this being North Brunswick and a Rutgers case. As well as you, detective Reagan."
The next date did not happen until ten months later on January 30, 2007. By that time, 1254 days had elapsed since defendant was charged. He pled guilty to DWI in violation of N.J.S.A. 39:4-50——approximately three and one-half years from the date defendant was charged. The guilty plea was conditioned on defendant's right to appeal the denial of the speedy-trial motion, the denial of the request for a jury trial, and the denial of the motion to suppress.
Defendant appealed the municipal court decision to the Law Division, alleging violations of his right to a speedy trial and his right to a jury trial. Counsel argued the appeal on August 10, 2007, and the Law Division judge placed his decision on the record on September 7, 2007, but agreed to consider Farrell, supra, 320 N.J. Super. 425, before entering a judgment of conviction. The judge issued a written decision on February 4, 2008. He denied defendant's municipal appeal and found that although "the delay was substantial in length . . . , there were justifiable reasons for the delay, the defendant did not appropriately assert his right, and the defendant suffered no prejudice." Furthermore, he found that the case law did not support defendant's arguments that he was entitled to a jury trial. However, it was not until December 17, 2008, that the judge imposed the same sentence as that imposed by the municipal judge. This appeal followed.
Defendant presents the following issues for our consideration:

A. Factor 1: Length of Delay. The Extraordinarily Long Delay of 1,254 Days Here Weighs Heavily in Finding that Defendant's Right to a Speedy Trial Was Violated Here.

B. Factor 2: Reasons for Delay. Despite the Officer's Military Service, the State's Failure to Timely and Diligently Pursue Prosecution of the Defendant Vio¬lated His Right to a Speedy Trial.

C. Factor 3: Asserting the Right. Defendant Did Not Acqui¬esce to Delay but Rather Asserted His Right to a Speedy Trial Frequently, Conspicuously, and Appropriately.

D. Factor 4: Prejudice to Defen¬dant. Even in the Absence of Specifically Identifiable Preju¬dice, and Even in the Face of Some Collateral Benefits, Delay Here Was So Prejudicial, Excessive, and Egregious as to Warrant Dismissal.


Because the facts relevant to the delay are undisputed and neither judge was required to make any credibility determinations, the issue presented is purely a question of law, that is, whether the Law Division judge erred in applying the law to the facts.
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990).

[State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]

See also State v. May, 362 N.J. Super. 572, 600 (App. Div. 2003) ("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."). Thus, our review is plenary.
The Sixth Amendment guarantees the accused the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33 L. Ed. 2d 101, 108 (1972). Because it is "impossible to determine with precision when the right has been denied," the Barker Court rejected an inflexible approach in evaluating alleged violations of a defendant's right to a speedy trial. Id. at 521, 529, 92 S. Ct. at 2187, 2191, 33 L. Ed. 2d at 112, 115. Rather, the Court imposed a flexible balancing test, which weighs the conduct of both the prosecution and the defendant. Id. at 530, 92 S. Ct. at 2191-92, 33 L. Ed. 2d at 116-17. This balancing test assesses four factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid., 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. None of the factors is dispositive, but instead the factors "must be considered together with such other circumstances as may be relevant." Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
Our Supreme Court reviewed the history of a defendant's right to a speedy trial in New Jersey under Article I, paragraph 10, of the New Jersey Constitution in State v. Szima, 70 N.J. 196, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). The Court recognized that the federal right to a speedy trial had been found fundamental in 1967 and that the dimensions of this right were delineated in 1972 by the Barker Court. Id. at 200. In adopting that paradigm, it noted that "[t]he proper approach suggested by the Supreme Court was an ad hoc balancing test in which the conduct of both the prosecution and the defendant are weighed." Id. at 200-01. It observed that the Barker Court "regarded none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Id. at 201 (emphasis added). It "recognize[d] that application of a balancing of interests test must be on an ad hoc basis and necessarily involves subjective reaction to the balancing of circumstances." Ibid.
We must consider defendant's speedy-trial rights in the special context of municipal DWI prosecutions. On July 26, 1984, Chief Justice Wilentz issued Administrative Directive #1-84, Directive on Statewide DWI Backlog Reduction, in which he stated:
I recognize that a number of conditions, in addition to increased filings, have combined to cause a backlog, including challenges to the reliability of breathalyzers. However, our duty is to dispose of cases swiftly and fairly, within reasonable time standards. We must and will meet that challenge.

The Supreme Court has, therefore, decided as a matter of policy that complaints charging offenses under N.J.S.A. 39:4-50 . . . and N.J.S.A. 39:4-50a . . . must be disposed of within 60 days of filing. This is consistent with the standard suggested by all judges who attended the Annual Conference of Municipal Court Judges in October 1983. It shall apply to all but exceptional cases.

. . . .

I want to note that the 60 day standard for DWI cases, established in this Directive, is a goal. Therefore, it does not replace the traditional guidelines established through case law for dismissals based on lack of a speedy trial. You should now consider and begin to implement management strategies designed to meet the 60 day standard for new DWI cases. Techniques such as arraignment and scheduling soon after complaint filing, expedited identification of defense counsel, pre-trial conferences and scheduled trial dates within 45 days should be considered in this context.

[Id. at 1.]

Although Chief Justice Wilentz was careful to note that the sixty-day standard did not "replace the traditional guidelines established through case law for dismissals based on lack of a speedy trial," it nonetheless must inform the assessment of the length of the delay. This is so because the significance of the length of delay will depend upon the factual circumstances of the particular case, Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117, including the nature of the proceedings.
For example, in Farrell, supra, 320 N.J. Super. at 428, an appeal from a DWI conviction, we found that "663 days from the issuance of the summonses through thirteen non-continuous, widely-spaced court sessions" amounted to a violation of the defendant's right to a speedy trial. There, as here, the defendant's counsel entered his appearance and a not-guilty plea, filed notice of several motions, made discovery requests, and asserted the defendant's constitutional right to a speedy trial. Ibid. Three weeks later, he acknowledged receipt of some discovery and requested other, missing discovery. Ibid. The next day, he filed a brief in support of his motions. Ibid. "An inordinate number of continuances and lengthy adjournments then ensued." Ibid. Trial did not actually begin until ten months after the defendant was charged. Id. at 428, 433. It was then carried for three months; was adjourned for six weeks, at which point the defendant again asserted his right to a speedy trial; then adjourned again until July 10, 1996——eighteen months after the defendant was charged. Id. at 436-37. At that point it was adjourned again to September 11, 1996. Id. at 439. On that date, the trooper was not available and the prosecutor sought an adjournment, the defendant renewed his motion to dismiss, and the case was adjourned again and again, id. at 439-41, until it was tried to a conclusion on November 13, 1996, id. at 443-44. The defendant continued throughout this time to press his right to a speedy trial.
Very recently, in State v. Tsetsekas, ___ N.J. Super. ___ (App. Div. 2009) (slip op. at 2), we again considered the delay in a DWI conviction. There, the defendant was arrested on May 8, 2007, and charged with DWI. Id. at 3. He first appeared in court on May 15, 2007, entered a plea of not guilty, and was scheduled for trial on July 17, 2007. Ibid. At that time, the State requested an adjournment because, as here, it had just provided the defendant with discovery. Ibid. The matter was relisted for August 14, 2007, when the State revealed it had not provided the videotape. Ibid. Multiple adjournments were requested by the State over the next four months when on December 18, 2007, the State represented it had not called its witnesses. Id. at 3-5. The defendant sought a speedy-trial dismissal, which the judge denied, and the trial finally commenced at 11:00 p.m. when one of the troopers arrived. Id. at 6. The trial was scheduled to continue on March 5, 2008, but the State again sought an adjournment because the troopers were not available. Id. at 7. The defendant renewed his motion to dismiss, and the judge again denied the motion. Ibid. On April 16, 2008, almost a year after the defendant's arrest, the State concluded its presentation of evidence and the defense presented its case. Ibid. The defendant was convicted of DWI and appealed. Ibid. The Law Division denied the defendant's speedy-trial motion and affirmed the conviction. Id. at 7-8.
The Law Division judge measured the length of the delay against the delay in Farrell and concluded that the delay in Tsetsekas was not excessive. Id. at 13. We rejected that approach and held that "no set length of time . . . fixes the point at which delay is excessive." Id. at 13-14. We pointed out that "[t]he first step in analyzing the facts requires a court to remember" the Supreme Court's policy on DWI dispositions. Id. at 14 (quoting Farrell, supra, 320 N.J. Super. at 446-47). We observed that the 344-day dispositional period was "more than five times the stated objective." Ibid. We concluded that amount of delay was excessive. Ibid.
We have, however, on separate occasions concluded that delays in a DWI trial and a driving-under-the-influence (DUI) trial were not excessive. State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006) (rejecting "defendant's contention that he was deprived of his constitutional right to a speedy trial based on the nearly five months that elapsed between his arrest and the beginning of his trial"), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); State v. Prickett, 240 N.J. Super. 139, 148 (App. Div. 1990) (affirming denial of speedy-trial motion in a DUI trial held approximately six months after arrest).
In the context of a municipal DWI trial, a delay of 1254 days——almost three and one-half years——is clearly excessive. It was twenty-one times the sixty-day target for DWI trials. That delay, however, does not end the inquiry, as we must next consider the second Barker factor, the reasons for the delay.
The Barker Court suggested that a "deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. On the other hand, a valid reason for the delay, such as the absence of a witness, will be considered justifiable and excuse the delay. Ibid. Similarly, although more neutral and given less weight, "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," for it is the ultimate responsibility of the government to bring the defendant to court. Farrell, supra, 320 N.J. Super. at 451 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Finally, delays attributable to the defendant "would not weigh in favor of finding a speedy trial violation." Gallegan, supra, 117 N.J. at 355.
Here, there is no suggestion that there was any "deliberate attempt to delay the trial in order to hamper the defense." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. However, the bulk of the delays were attributable to the municipal court judge, his staff, and the prosecutor. Defendant's first trial date, October 29, 2003, had to be adjourned because the prosecutor did not provide defendant with the discovery he requested on September 4, 2003, until the date set for trial. Then, the court adjourned the case to March 17, 2004——more than six months after defendant was charged——even though the sixty-day period expired on October 27, 2003. Despite the expiration of the period of time we found not violative of a defendant's constitutional right to a speedy trial, the prosecutor still did not provide the entire discovery requested as of the new trial date, necessitating another adjournment. Ganzer then left for Cuba on April 1, 2004, before the matter could be relisted.
Obviously, the duration of Ganzer's unavailability cannot be laid at the feet of the State. See State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983) (finding the "unavoidable absence" of a police witness due to service in the National Guard a "reasonably explained and justified" reason for a delay in proceedings). However, after Ganzer returned in May 2005, he apparently contacted the prosecutor promptly to advise him of his return, and the prosecutor contacted the court in June 2005 to have the matter relisted. Yet, the record is silent as to precisely what the prosecutor did to secure a new trial date, when precisely he did that, and how often he did so. What we do know is that it was not until January 13, 2006, that the case was listed——not for trial, but for a status conference. Thus, a six-month delay ensued from the inaction of the State in addition to the delays attributable to the prosecutor's failure to timely provide discovery and the court's lackadaisical scheduling.
Despite hearing argument that day on defendant's speedy-trial motion, which had been pending for sixteen months, and denying it, neither the judge, who did not "schedule cases," nor his staff listed the matter for trial until March 3, 2006——921 days after defendant was charged. That, however, was not the end of the extraordinary delays. After taking some testimony from Ganzer, defendant moved to dismiss on probable-cause grounds, the judge reserved decision on defendant's suppression motion, examination of Ganzer continued, and the case was continued. At that point, the judge gave the lawyers an extraordinary two months to file briefs on the issues, and continued the trial without date. The trial did not resume until January 30, 2007. Thus, the State was responsible for nine additional months of delay after March 17, 2006. In all, the State was responsible for almost two and one-half years of delay in prosecuting this action to conclusion.
The third Barker factor, the defendant's assertion of his right to a speedy trial, "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at 117. The strength of the defendant's efforts are closely related to the other Barker factors. Id. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; see e.g., Farrell, supra, 320 N.J. Super. at 451-52 (finding in favor of the defendant who, given the "excessive" delays, invoked his right to a speedy trial at the outset and on eight other occasions). At the same time, the defendant's "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
Here, defendant repeatedly asserted his right to a speedy trial. He placed the prosecutor on notice only a few days after he was charged that he would move to vindicate his speedy-trial rights. He asserted those rights on April 7, 2004, upon learning that Ganzer had been mobilized. He sought a dismissal on those grounds on June 9, 2004. When it was denied, he filed a formal motion for dismissal on September 20, 2004. He pressed his motion on January 13, 2006, and it was again denied. Defendant certainly assiduously pressed his constitutional right to a speedy trial and this weighs heavily in favor of dismissal.
The final Barker factor is the prejudice to the defendant caused by the delay. Ibid. The Barker Court identified three interests that the right to a speedy trial protects: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. Ibid. Moreover, prejudice can be found "from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." State v. Smith, 131 N.J. Super. 354, 367-68 n.2 (App. Div. 1974), aff’d, 70 N.J. 213 (1976).
Here, defendant has not been incarcerated pretrial and there is no suggestion that his defense has been impaired as a result of the delay. He does urge, however, that "given the passage of time, prejudice can be inferred generally and specifically, given the many changes in [defendant's] life as this matter dragged on." While awaiting prosecution, he had to decide whether to relocate, whether to marry, whether to have children. Although decisions such as these are generally happy ones, they certainly can be worrisome when facing a third DWI conviction. Would he lose his job if he could not drive for ten years? How would he be able to support his family if he had children? Would his marriage survive the stresses of incarceration and immobility? In Farrell we found
the prosecution's clear inattention to its responsibilities along with the municipal court's patent failure to prepare itself to try the matter expedi[ti]ously and shepherd it to resolution efficiently . . . so egregious that no showing of prejudice is required in order for this defendant to succeed on his argument that, in fundamental fairness terms, he was denied his adequately asserted right to a speedy trial.

[Farrell, supra, 320 N.J. Super. at 452-53.]

The delay there was 663 days; here it was even longer. We see no basis for distinguishing the facts in Farrell and are persuaded that the result should be the same. Although some showing of prejudice has been made, none was required. As a result, it was error to deny defendant's speedy-trial motion because "the denial of fundamental fairness was so great, and the integrity of the judicial process so crippled, as to require that the conviction[] be vacated." Id. at 453.
In light of our disposition of the speedy-trial issue, defendant's claim that he was entitled to a jury trial is moot.
Reversed and remanded for vacation of the judgment of conviction.







DOCKET NO. A-4425-08T4


Submitted January 4, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 39-08.

Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

Respondent has not filed a brief.


Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50. At the municipal trial, defendant argued that State v. Chun, 194 N.J. 54, 140, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), holds that only the Alcotest operator may testify to the required pre-test twenty-minute observation period. The municipal judge rejected that contention, found defendant guilty, and imposed a fine, costs, a ninety-day license revocation, and other mandatory penalties, assessments and conditions. In conducting a de novo review, the Law Division judge adopted defendant's interpretation of Chun and, for that reason only, found defendant not guilty. The State then filed this appeal.
During the pendency of this appeal, another panel of this court determined that the State was not limited to what the Alcotest operator could provide about the twenty-minute period and that the State could sustain its burden by calling any competent witness to testify that twenty minutes elapsed prior to the Alcotest without the occurrence of anything that might jeopardize the results. State v. Ugrovics, 410 N.J. Super. 482, 485 (App. Div. 2009). For the reasons set forth in Ugrovics, we conclude that the municipal judge's interpretation of Chun was correct and that the Law Division judge mistakenly imposed upon the State an additional obligation not required by Chun.