State of New Jersey v. G.N.W.

• Court: New Jersey Superior Court Appellate Division
• Decided: April 17, 2024
• Docket: A-3756-21
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3756-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.N.W.,

Defendant-Appellant. _______________________

Submitted April 10, 2024 – Decided April 17, 2024

Before Judges Firko and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-07-1248.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Cody Tyler Mason, Deputy Public Defender, of counsel and on the briefs).

Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM This case returns to us on a constitutional speedy trial issue. Defendant

G.N.W.1 appeals from a November 12, 2021 Law Division order on remand

denying his motion to dismiss the superseding indictment on speedy trial

grounds. Because the motion judge did not make all the findings required in our

initial remand instructions, we are constrained to remand the case again to

complete the fact-finding needed to resolve defendant's constitutional claim.

The time between defendant's arrest and trial was six years, eleven

months, and twenty-nine days. On November 18, 2016, the jury convicted

defendant of twenty-one counts involving first and second-degree sexual

assaults against adolescent boys. Defendant was sentenced to forty-six years'

imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, Parole

Supervision for Life pursuant to N.J.S.A. 2C:43-6.4, Megan's Law restrictions,

fines, and penalties.

In January 2020, we affirmed defendant's convictions and sentence, but

remanded to the motion judge to carefully scrutinize the time between

defendant's arrest and trial and to undertake the fact-sensitive analysis required

under Barker v. Wingo, 407 U.S. 514 (1972). G.N.W., slip op. at 1-2. Barker

1 We use the defendant's initials as we did in our prior opinion. See State v. G.N.W., A-0496-17 (App. Div. Jan. 28, 2020) (slip op. at 1-2). A-3756-21 2 requires consideration of the "[l]ength of delay, the reason for the delay, the

defendant's assertion of his [or her] right, and prejudice to the defendant." 407

U.S. at 530; see State v. Cahill, 213 N.J. 253, 264 (2013). In our initial decision,

we acknowledged the seven years between defendant's arrest and trial is "[b]y

any objective measure . . . a substantial period of time . . . requir[ing] careful

scrutiny." G.N.W., slip op. at 6. We determined it is "conceivable, if not likely,

that the current record is not adequate to permit a fulsome review of the Barker

factors. The circumstances explaining certain periods of delay, for example,

may be outside the current record, in which event further factfinding may be

necessary." Id. at 8. Accordingly, we instructed the motion judge to:

(1) catalog and compartmentalize all of the discrete periods of delay, (2) determine and evaluate the specific reasons for delay, and, (3) as to delay attributed to the State, determine whether the delay was the product of the case's complexity or other legitimate justification, or else was the product of purposeful delay tactics or mere inaction. The Law Division should apply the Barker factors in light of those findings. . . . Should the court conclude defendant's speedy trial rights were violated, it shall vacate defendant's judgment of conviction and dismiss the superseding indictment.

[Ibid.]

On remand, the motion judge did not hear additional testimony, argument,

or receive additional briefing. The judge applied the four-factor Barker test,

A-3756-21 3 concluding in a sixteen-page written decision the length of the delay was not

unreasonable due to the nature of the charges, the complexity of the case, and

additional alleged illegal conduct committed by defendant.

However, the motion judge did not "catalog and compartmentalize all the

discrete periods of the delay" as per our instruction. See Tomaino v. Burman,

364 N.J. Super. 224, 232 (App. Div. 2003) ("It is beyond dispute that a trial

judge has the responsibility to comply with pronouncements of an appellate

court."); Jersey City Redev. Agency v. The Mack Props. Co. 3, 280 N.J. Super.

553, 562 (App. Div. 1995) ("It is the peremptory duty of the trial court, on

remand, to obey the mandate of the appellate tribunal precisely as it is written.").

For example, the trial court did not catalog the delay that occurred before an

initial trial date was set.

The State concedes "Judge English did not divide the time between arrest

and trial into discrete periods of delay nor determined whether the specific

periods were attributable to the State, to defendant, or to the court system." The

State nonetheless argues the motion judge's ultimate ruling was not "clearly

erroneous" and that dismissal of the superseding indictment is "unwarranted"

and an "unsatisfactory severe remedy." We decline to review the motion judge's

ruling without the specific information we instructed him to catalog.

A-3756-21 4 As an alternative to dismissing the indictment, defendant asks us "at

minimum [to] remand the matter, again, so that a new judge can fully, and

promptly rule on the speedy trial issue with fresh eyes." We agree another

remand is needed but see no need to send this matter to a different judge. The

factfinding that needs to be done does not involve credibility assessments.

Furthermore, we expect it would take even longer to have a new judge review

the extensive record and make the findings needed to complete our review of

the trial judge's Barker analysis.

To help ensure that all required findings are made based on the current

record, we instruct the motion judge to convene an oral argument. The motion

judge shall as appropriate revise or amplify its analysis of the Barker factors

accounting for its additional findings. The remand is to be completed with in

sixty days. We retain jurisdiction.

Remanded for further proceedings.

A-3756-21 5