STATE OF NEW JERSEY,
MIA B. AUSTIN,
Submitted: September 12, 2011 - Decided:
Before Judges C.L. Miniman and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Municipal
Appeal No. 70-2008.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1060-10T3
Bruce J. Kaplan, Middlesex County Prosecutor,
attorney for respondent (Brian D. Gillet,
Assistant Prosecutor, of counsel; Jason
Seidman, on the brief).
Defendant Mia B. Austin appeals her judgment of conviction
for fourth-degree obstruction of the administration of law,
contrary to N.J.S.A. 2C:29-1a; fourth-degree resisting arrest,
contrary to N.J.S.A. 2C:29-2a; speeding, contrary to N.J.S.A.
39:4-98; and expired registration, contrary to N.J.S.A. 39:3-4.
She was not sentenced to incarceration or probation but was
September 16, 2011
fined $500 for obstruction, $500 for resisting, $86 for
speeding, and $26 for expired registration. Court costs and
penalties were also imposed.
On April 26, 2005, Piscataway Police Officer Michael Joy
was conducting a speed-enforcement radar detail on Haines Avenue
when he determined that defendant was driving at forty-two miles
per hour in a twenty-five-mile-per-hour zone. Joy flagged her
to stop and approached her vehicle. She presented him with an
expired registration card when he asked for her documentation.
Defendant admitted that she knew she had to renew the
Joy explained that the car would have to be towed and asked
for the keys. Defendant would not surrender them, despite
repeated requests. Joy requested backup and, when another
officer arrived, instructed defendant to get out of the car and
leave the keys on the dashboard. However, when she got out of
the car, she took the keys with her and refused to surrender
them. When she was placed under arrest for obstructing the
towing and impoundment of her car, she then resisted
handcuffing. She was ultimately subdued, and the officers pried
the keys out of her hand. She was then charged with the above
Defendant pled not guilty at the first court appearance on
May 10, 2005. Subsequently, there were nine court appearances
over the next eight months, none of which was adjourned at the
request of defendant. However, defendant's counsel failed to
appear on February 23, 2006, and counsel was ordered to appear
on February 28, which was then carried to March 1. On March 7,
2006, defendant objected to the multiple adjournments, the
length of the delay, and the adverse impact all of the daytime
appearances were having on her children and her employment. The
matter was not rescheduled until May 11 on a try-or-dismiss
basis, but the court again adjourned the matter four more times
before beginning the trial on October 24, 2006. However, the
judge did not have sufficient time to complete the testimony of
Joy and adjourned the matter to January 23, 2007. When that
appearance was adjourned, defendant's counsel demanded, verbally
and in writing, that the municipal court provide him with "a
detailed listing of any and all scheduled [court] appearances."
The municipal court never complied with this request.
The trial resumed on March 6, 2007––almost two years after
the offenses in question. Although the testimony of Joy was
completed that day, the judge again adjourned the trial as he
did not have sufficient time available to hear the next witness.
This was the eighteenth court appearance. The matter was
rescheduled to an agreed date of May 1, 2007, but that date was
adjourned by the court to June 26, then to August 28, and then
to September 25, 2007. The latter date, too, was adjourned, and
defendant filed a motion to have the Piscataway municipal judge
recused from the case because defendant had sued the Township.
Yet no immediate ruling was made on that motion. The matter was
relisted on October 23, November 27, and December 4 with no
further testimony ever being taken. It was again adjourned to
January 22, 2008.
On the latter date, the municipal judge had apparently not
been reappointed to the bench, and the new judge declared a
mistrial and transferred the matter to the Metuchen municipal
court for disposition. The first appearance in Metuchen on
April 4, 2008, was adjourned; it was now three years after the
offenses in question. Two more scheduled appearances were
adjourned before trial began on July 11, 2008. By that time,
defendant had moved to dismiss for violation of her right to a
speedy trial. The motion was denied, and the trial began that
day. It resumed and was concluded on September 5 with defendant
found guilty on all charges.
Defendant appealed to the Law Division where further delays
occurred. The appeal was not decided until January 22, 2010––
four years and nine months after the offenses in question.
Defendant renewed her speedy trial motion, which was again
denied. Defendant was convicted de novo on all charges. This
Defendant raises the following issues for our
POINT I - THE COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR DISMISSAL BASED ON
VIOLATION OF HER RIGHT TO [A] SPEEDY TRIAL.
POINT II - DEFENDANT'S CONVICTION FOR
OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE
SHOULD BE REVERSED.
POINT III - DEFENDANT'S CONVICTION FOR
RESISTING ARREST SHOULD BE REVERSED.
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," id. at 521, 92 S. Ct. at 2187, 33 L. Ed. 2d at 112, the
Barker Court rejected an inflexible approach in evaluating
alleged violations of a defendant's right to a speedy trial.
Id. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116. 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." Id. at 530, 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
In State v. Farrell, 320 N.J. Super. 425, 427 (App. Div.
1999), an appeal from a DWI conviction, we found that "663 days
from the issuance of the summonses through thirteen noncontinuous,
widely-spaced court sessions" amounted to a
violation of the defendant's right to a speedy trial. Id. at
428. The defendant's counsel "entered his appearance and a notguilty
plea, filed notice of several motions, made discovery
requests and proffers, 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 five weeks, at which point
the defendant again asserted his right to a speedy trial; and
was 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-
42, until it was tried to conclusion on November 13, 1996, id.
at 443-44. The defendant continued throughout this time to
press his right to a speedy trial. Id. at 439-43.
In State v. Tsetsekas, 411 N.J. Super. 1, 4 (App. Div.
2009), we again considered the delay in a DWI conviction.
There, the defendant was arrested on May 8, 2007, and charged
with DWI. Id. at 4-5. He first appeared in court on May 15,
2007, entered a plea of not guilty, and was scheduled for trial
on July 17, 2007. Id. at 5. At that time, the State requested
an adjournment because 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 of the
defendant's stop and arrest. Ibid. Multiple adjournments were
requested by the State over the next four months when on
December 18, 2007, the State represented it had not alerted its
witnesses of the date for trial. Id. at 5-6. 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 6-7. 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 11. We rejected that
approach and held that "no set length of time . . . fixes the
point at which delay is excessive." Ibid. 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. Ibid.
(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. Id. at 11-12.
We have, however, on separate occasions concluded that
delays in drunk-driving trials were not excessive. State v.
Misurella, ___ N.J. Super. ___ (App. Div. 2011) (rejecting
speedy trial claim where delay was caused by defendant and the
State); State v. Berezansky, 386 N.J. Super. 84, 85, 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, 141-42, 148 (App. Div. 1990) (affirming denial
of speedy-trial motion in a trial held approximately six months
after arrest). We acknowledge these cases involved DWI charges,
but we discern no reasons why the same speedy trial principles
and analysis should not apply to municipal court trials in
The delay here far exceeded the five-month delay in
Berezansky and the six-month delay in Prickett. In fact, it far
exceeded the almost one-year delay in Tsetsekas and the 663-day
delay in Farrell. This delay consumed 1228 days from arrest to
conviction and subjected defendant to no less than thirty-one
court appearances. Indeed, the delay was further exacerbated by
the fact that it took another 504 days before the Law Division
heard defendant's appeal from the municipal conviction. By any
standard, the delay here was extraordinary. As a consequence,
we must next consider the second Barker factor––the reasons for
The Barker Court suggested that a "deliberate attempt to
delay the trial in order to hamper the defense should be
weighted 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." State v.
Gallegan, 117 N.J. 345, 355 (1989).
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. The
record is devoid of any evidence that defendant caused any of
the twenty-nine adjournments with the exception of one
adjournment when she filed her recusal motion. Although the
State blames the judge, his delays "are attributable to the
State and not to the defendant." Farrell, supra, 320 N.J.
Super. at 451.
The third Barker factor, the defendant's assertion of her
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 asserted her right to a speedy trial on
March 7, 2006, February 27, 2007, and March 26, 2008. Because
we do not have transcripts of all court appearances, we do not
know if there were other occasions when defendant asserted her
right to a speedy trial, but we do know that she maintained that
position for almost two years, leaving only one factor to
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
o.b., 70 N.J. 213 (1976).
Here, defendant was not incarcerated pretrial, and there is
no suggestion that her defense was impaired as a result of the
delay. She does, however, urge that she "experienced anxiety
over the drawn[-]out prosecution, had interruptions in her
employment, and suffered financial drain as a result of the
delay." Indeed, we cannot imagine that the latter was not the
case as generally attorneys expect to be compensated for making
thirty-one court appearances. In Farrell we found that
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 . . . were 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 almost twice as
long. 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 convictions be vacated." Id. at 453.
In light of our disposition of the speedy-trial issue,
defendant's claim that her convictions should be reversed on
other grounds is moot.
Reversed and remanded for vacation of the judgment of
conviction and refund of all fines, penalties, and costs.