STATE OF NEW JERSEY v. ALIONY PEREZ (13-08-0744, UNION COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3659-20
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    ALIONY PEREZ,
    Defendant-Respondent.
    _________________________
    Submitted December 14, 2021 – Decided March 8, 2022
    Before Judges Currier and Smith.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment No. 13-08-0744.
    William A. Daniel, Union County Prosecutor, attorney
    for appellant (Milton S. Leibowitz, Assistant
    Prosecutor, of counsel and on the brief).
    The Law Offices of Michael P. McGuire, LLC,
    attorneys for respondent (Michael P. McGuire, on the
    brief).
    PER CURIAM
    In this matter, we consider the July 22, 2021 order granting defendant's
    motion to dismiss the indictment for lack of a speedy trial. Because the trial
    court conducted a thorough and factually supported analysis of the Barker v.
    Wingo 1 factors, we affirm.
    In May 2013, defendant was arrested on several charges in Union County
    and released after posting bail. 2 He was indicted in August 2013 of second-
    degree unlawful taking of a police weapon, N.J.S.A. 2C:12-11; third-degree
    resisting arrest, N.J.S.A. 2C:29-2(a); and fourth-degree resisting arrest, N.J.S.A.
    2C:29-2(a).
    Arraignment, originally scheduled for September, was postponed until
    October 7, 2013. Defendant failed to appear on that date and a bench warrant
    was issued. Defendant appeared before the court on October 21, 2013 and was
    arraigned. Defense counsel requested an adjournment of a November scheduled
    court appearance. During defendant's next court appearance on December 4, he
    was intoxicated and the court rescheduled for a date later that month. The court
    then adjourned the matter until January 13, 2014, for a plea or trial memo.
    1
    
    407 U.S. 514
    , 529-30 (1972).
    2
    At the time of his arrest, defendant was under indictment in both Essex and
    Morris Counties on multiple theft and burglary charges.
    2                                    A-3659-20
    Defendant failed to appear on that date. A new court date was set for January
    28, 2014. Defendant failed to appear a second time and a bench warrant was
    issued.
    Seven months later, defendant was arrested in Tennessee on August 11,
    2014, on charges of burglary, theft, and being a fugitive from justice. Union
    County lodged a detainer and requested extradition. On August 26, 2014,
    defendant was arrested and charged with federal crimes relating to the interstate
    transportation of stolen goods.    Tennessee subsequently dismissed its state
    charges.    Court documents reflected an entry that Tennessee received
    documentation from New Jersey declining to extradite defendant. 3
    Defendant was convicted of the federal charges and sentenced in August
    2016 to two sixty-month concurrent terms of incarceration, followed by three
    years of supervised release. Union County did not lodge a detainer with the
    federal prison. After completing his custodial sentence, defendant was released
    on supervision on January 22, 2019. He was subsequently arrested on December
    16, 2020 in Miami on the outstanding bench warrant from Morris County.
    3
    The documentation did not specify which of the counties declined to extradite
    at that point.
    3                                   A-3659-20
    Morris County extradited defendant from Florida on December 30, 2020. That
    same day, Union County filed a detainer with Morris County.
    On January 6, 2021, defendant was released from Morris County on non-
    monetary conditions. He was then arrested on the bench warrant from Essex
    County. Union County issued a detainer to Essex County. Defendant appeared
    in Union County on his outstanding charges on February 9, 2021 and was
    released on bail.
    Defendant moved to dismiss the indictment for lack of a speedy trial. In
    a written decision, the trial court analyzed each of the Barker factors and
    concluded the factors weighed in favor of dismissal.         Therefore, the court
    granted defendant's motion on July 22, 2021, and dismissed the indictment for
    lack of a speedy trial.
    On appeal, the State raises a single point for our consideration.
    POINT I
    THE TRIAL COURT ERRED BY DISMISSING THE
    INDICTMENT BECAUSE DEFENDANT'S RIGHT
    TO A SPEEDY TRIAL WAS NOT VIOLATED.
    On appeal, we defer to the trial court's factual findings underpinning its
    legal conclusions. State v. McNeil-Thomas, 
    238 N.J. 256
    , 271 (2019). Our
    review of the court's legal conclusions is de novo. State v. Dorff, 
    468 N.J. Super. 4
                                        A-3659-20
    633, 644 (App. Div. 2021). A trial judge's determination that a defendant's right
    to a speedy trial was violated will only be reversed if that determination is
    clearly erroneous. State v. Tsetsekas, 
    411 N.J. Super. 1
    , 10 (App. Div. 2009).
    The right to a speedy trial is guaranteed by the Sixth Amendment to the
    United States Constitution and imposed on the states through the Due Process
    Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 
    386 U.S. 213
    ,
    222-23 (1967). "The constitutional right . . . attaches upon defendant's arrest."
    State v. Fulford, 
    349 N.J. Super. 183
    , 190 (App. Div. 2002) (citing State v.
    Szima, 
    70 N.J. 196
    , 199-200 (1976)). As a matter of fundamental fairness,
    excessive delay in completing a prosecution may qualify as a violation of a
    defendant's constitutional right to a speedy trial. State v. Farrell, 
    320 N.J. Super. 425
    , 445-46 (App. Div. 1999) (citing State v. Gallegan, 
    117 N.J. 345
    , 354-55
    (1989)). After all, "'[a] defendant has no duty to bring himself to trial; the State
    has that duty . . . .'" State v. Merlino, 
    153 N.J. Super. 12
    , 17 (App. Div. 1977)
    (quoting Barker, 
    407 U.S. at 527
    ).
    In Barker, the United States Supreme Court announced a four-part test to
    determine when a delay infringes upon a defendant's due process rights. 
    407 U.S. at 530
    . Courts must consider and balance the "[l]ength of delay, the reason
    for the delay, the defendant's assertion of his right, and prejudice to the
    5                                    A-3659-20
    defendant." 
    Ibid.
     Our Supreme Court adopted the Barker test in Szima, 
    70 N.J. at 200-01
    .
    No single factor is a "necessary or sufficient condition to the finding of a
    deprivation of the right [to] a speedy trial." Barker, 
    407 U.S. at 533
    . Rather,
    the factors are interrelated, and each must be considered in light of the relevant
    circumstances of each particular case. 
    Ibid.
     In an analysis of a speedy trial
    challenge, a trial court must weigh the "'societal right to have the accused tried
    and punished'" and a defendant's right "'to be prosecuted fairly and not
    oppressively.'"   State v. Dunns, 
    266 N.J. Super. 349
    , 380 (App. Div.
    1993) (quoting State v. Farmer, 
    48 N.J. 145
    , 175 (1966)).
    The burden lies on defendant to show that the Barker factors, on balance,
    weigh in favor of dismissal. See State v. Berezansky, 
    386 N.J. Super. 84
    , 99
    (App. Div. 2006). However, because the analysis requires balancing, "when the
    delay in concluding a trial is excessively long by any measure . . . , the burden
    upon defendant to satisfy the other factors is correspondingly diminished."
    Farrell, 
    320 N.J. Super. at 453
    .
    We now consider the trial court's application of these principles. The first
    factor—length of delay—is not contested. The State concedes that seven years
    6                                   A-3659-20
    between indictment and trial is an excessive delay, triggering a Barker analysis.
    That factor weighed in defendant's favor.
    In addressing the second Barker factor—the reason for the delay—the
    court stated that,
    the State offers no reason for the delay.          As
    appropriately conceded by the prosecutor at argument,
    the State has not submitted any evidence under R[ul]e
    1:6-6 from a person with knowledge as to what
    happened here and why it occurred. The State proceeds
    only upon the documents submitted and argument.
    Because the State has an obligation to come forward
    with a justification, and has not, the second Barker
    factor weighs heavily in favor of the [d]efendant.
    The State asserts the trial court erred in attributing too much blame to it
    for the delay in prosecution, specifically in the court's finding that the State was
    responsible for the time after defendant was released and living in Florida under
    supervision, and that the court placed too much weight on the State's failure to
    lodge a detainer while defendant was incarcerated.         The State asserts that
    because defendant was living in Florida, and not within a custodial institution,
    New Jersey could not compel his appearance until Florida authorities enforced
    any of defendant's outstanding New Jersey bench warrants. The State concedes
    it could have filed a detainer and requested extradition during defendant's
    federal incarceration but offers no explanation as to why it failed to do so.
    7                                    A-3659-20
    To analyze the reasons for delay, courts should "divid[e] the time into
    discrete periods of delay," and determine whether each delay was attributable to
    "the State, defendant, or the court system." State v. May, 
    362 N.J. Super. 572
    ,
    596 (App. Div. 2003). Even where the State or court system is at fault, different
    levels of culpability should weigh differently in the balance. See Barker, 
    407 U.S. at 531
    .
    Here, the trial judge established four discernable periods of delay to
    apportion responsibility between the State and defendant: (1) defendant's
    fugitive status from January 18, 2014, until his arrest in Tennessee on August
    11, 2014; (2) defendant's time in Tennessee awaiting federal sentencing; (3)
    defendant's imprisonment for federal charges from August 18, 2016 until his
    release on January 22, 2019; and (4) his supervised time in Florida until his
    arrest on December 16, 2020.
    The trial court found, and defendant conceded, that defendant was
    responsible for the delay under the first two periods of time. The court found
    the State was responsible for the delay incurred under the last two periods. The
    trial court held that the State was required to explain or justify the delay of four
    years between defendant's sentencing on the federal charges and his eventual
    8                                    A-3659-20
    arrest in Miami, found the State failed to provide an explanation, and weighed
    it against the State in the balance.
    It is the State's duty to exercise reasonable diligence in prosecuting
    defendants. See Doggett v. United States, 
    505 U.S. 647
    , 656 (1992). Here, the
    State did not lodge a detainer with the custodial institution where defendant
    served his federal sentence, so the institution did not notify Union County when
    defendant completed his sentence and was being released.
    As the trial judge stated, Union County has not provided any explanation
    for its failure to properly lodge a detainer or run any checks in its systems to
    search for defendant. Although reasonable diligence does not require "heroic
    efforts" to be made, it does require some effort. Rayborn v. Scully, 
    858 F.2d 84
    , 90 (2d Cir. 1988). As our Court stated in State v. Cahill, 
    213 N.J. 253
    , 274
    (2013), if the State can offer no explanation for delay, it "weighs heavily against
    the State."
    Moreover, the purpose behind the Interstate Agreement on Detainers
    (IAD), codified in New Jersey as N.J.S.A. 2A:159A-1 to -15, is to prevent the
    circumstances that occurred here. The IAD provides a means for states that have
    outstanding indictments on a person incarcerated in another state to acquire
    custody of the person and bring them to trial. N.J.S.A. 2A:159A-3. If Union
    9                                    A-3659-20
    County had properly lodged a detainer, defendant could have demanded a trial
    within 180 days.        Or the Union County prosecutor could have initiated
    proceedings for the temporary custody of defendant to resolve the outstanding
    indictment.   N.J.S.A. 2A:159A-4.      Therefore, the four year delay between
    defendant's sentencing hearing in Tennessee and his eventual arrest in Florida
    falls squarely upon the State. The trial judge did not err in finding the reasons
    for the delay factor weighed heavily against the State.
    In turning to the third Barker prong, the trial court found defendant
    promptly asserted his right after his arrest in Florida. The judge stated that
    because the State failed to "actively pursue these charges during the four years
    [d]efendant was in federal custody and no efforts [were made] to contact
    [d]efendant during the approximately two years since his release from federal
    custody, this court will not find that [d]efendant was somehow attempting to
    actively evade his obligations" considering he was "readily locatable—had the
    State been attentive to the case." Therefore, the court found the factor weighed
    in defendant's favor.
    The State asserts that this factor should weigh in favor of the State because
    defendant did not assert his speedy trial right at any time during his incarceration
    in Tennessee or while serving his sentence at a federal prison.
    10                                    A-3659-20
    We reject these arguments. Because the State did not lodge a detainer with
    the federal facility, the IAD procedure was not triggered. As for the Tennessee
    state charges, they were dismissed. Therefore, the IAD was not relevant since
    it is only applicable to a defendant who is serving a term of imprisonment.
    N.J.S.A. 2A:159A-3. The state seeking to lodge a detainer cannot do so until a
    defendant has been sentenced and is incarcerated. Carchman v. Nash, 
    473 U.S. 716
    , 720-21 (1985). We see no reason to disturb the judge's determination that
    this factor weighed in favor of defendant.
    In considering the final prong of the Barker test, prejudice to the
    defendant, the trial judge found defendant had not suffered any identifiable
    prejudice. Therefore, this prong is not at issue before this court.
    In looking at the totality of the circumstances, as we must, we are satisfied
    the trial court properly balanced the Barker factors and found the State fell short
    in its responsibility to prosecute defendant on the outstanding indictment.
    Although we acknowledge that "'in the administration of justice, dismissal must
    be a recourse of last resort,'" Farrell, 
    320 N.J. Super. at 447
     (quoting State v.
    Prickett, 
    240 N.J. Super. 139
    , 147 (App. Div. 1990)), so too must we consider a
    defendant's right to be prosecuted "fairly and not oppressively." Dunns, 
    266 N.J. Super. at 380
     (quoting Farmer, 48 N.J. at 175).
    11                                    A-3659-20
    The State does not dispute the total delay in prosecution was excessively
    long.    And the trial court agreed the initial delay was due to defendant
    absconding from this state. But, for four years defendant was in federal custody
    and available for extradition. When he was released from prison, defendant
    lived freely, securing employment, and remaining under federal monitoring.
    The State has not offered any explanation for the additional two years it did not
    pursue and locate defendant to prosecute the outstanding charges against him.
    Therefore, the "governmental interest in prosecution has been outweighed by
    defendant's individual right to a speedy trial." Tsetsekas, 
    411 N.J. Super. at
    14
    (citing Farrell, 
    320 N.J. Super. at 453
    ).
    Affirmed.
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