NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2174-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LINO R. QUIZPHI-PATINO,
Defendant-Appellant. _____________________________
Argued September 18, 2017 – Decided October 19, 2017
Before Judges Messano, Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2013-026.
Luke C. Kurzawa argued the cause for appellant (Reisig & Associates, LLC, attorneys; Mr. Kurzawa, on the brief).
Michael J. Mennuti, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Mr. Mennuti, on the brief).
PER CURIAM
Defendant Lino R. Quizphi-Patino appeals from a Law Division
order entered after a de novo hearing on the record before the West Windsor municipal court denying his motion to dismiss motor
vehicle summonses on grounds he was denied his right to a speedy
trial. We affirm.
I.
On February 5, 2012, defendant was arrested and charged with
driving while intoxicated (DWI), N.J.S.A. 39:4-50, failure to
maintain in the driver's lane, N.J.S.A. 39:4-88, and reckless
driving, N.J.S.A. 39:4-96. At his first appearance on February
29, 2012, the municipal court judge ordered the State to supply
defendant with the data download history for the Alcotest device
used to obtain defendant's chemical breath test results, which
supported the DWI charge.1
The State provided discovery to defendant that included a
certificate from Dori L. Mansur Ratka, an attorney for Draeger
Safety Diagnostics, Inc., the Alcotest's manufacturer. The
certificate generally explained Draeger's putative repair records
for the Alcotest device.
Defendant's counsel issued a subpoena ad testificandum
compelling Ratka's testimony before the municipal court. On April
1 The chemical breath test yielded a blood alcohol content reading of .26.
2 A-2174-15T4 2, 2012, Draeger filed a motion to quash the Ratka subpoena.2 On
May 2, 2012, the court adjourned defendant's matter with his
counsel's consent to May 8, 2012.
On May 8, 2012, the court heard argument and denied Draeger's
motion to quash the Ratka subpoena3 and ordered that Ratka appear
to testify. Draeger's counsel advised the court that Draeger
might seek leave to file an interlocutory appeal. The court ruled
that if a motion for leave to file an interlocutory appeal was
filed, defendant's matter would be stayed pending outcome of the
motion.4
In May 2012, Draeger filed a motion in the Law Division for
leave to appeal, a stay of the municipal court's order, and to
designate Draeger's counsel as the acting prosecutor for purposes
of pursuing the appeal. Eleven months later, and after hearing
2 We have not been provided with the motion papers and accept defendant's counsel's undisputed representation that the motion was filed on April 2, 2012. The record does not make clear whether Draeger moved to quash a subpoena issued in defendant's case, the case of another of defendant's counsel's clients, or in two other cases involving other defendants. The distinction is immaterial, however, because the municipal court subsequently addressed the motion in all four matters in a single proceeding on May 8, 2012. 3 In the May 8, 2012 proceeding, the court denied the motion to quash the subpoena in the two matters defendant's counsel had pending before the court and in two other matters pending before the court where the same subpoena had been served. 4 The court's stay of the municipal court proceeding applied to the four cases that the court jointly considered on May 8, 2012.
3 A-2174-15T4 oral argument on two occasions, the Law Division issued an April
26, 2013 order denying Draeger's motion and remanding the matter
to the municipal court.
Following the remand, on May 15, 2013, a different municipal
court judge ruled that Ratka must testify in a single proceeding
in the four cases in which the court denied Draeger's motion to
quash. At the May 15, 2013 proceeding, defendant's counsel advised
for the first time that he intended to invoke defendant's right
to a speedy trial. Defendant's counsel then served the court with
a May 15, 2013 letter "invoking [defendant's] constitutional right
to a speedy trial."
The next court proceeding occurred on June 12, 2013, but
Ratka did not appear as ordered. Instead, Draeger's attorney
appeared and argued that Ratka was not required to appear because
she had never been properly served with the subpoena. Noting that
the identical argument was rejected when the court denied Draeger's
motion to quash, the court rejected the contention. Defendant's
counsel requested sanctions against Draeger's counsel and Ratka
based on her failure to appear. The court requested additional
written submissions on defendant's request for sanctions.
During the June 12, 2012 proceeding, the State requested that
the court set a trial date for defendant's matter. Defendant's
counsel objected, arguing he was not prepared for trial because
4 A-2174-15T4 he intended to file a speedy trial motion and had an outstanding
motion to compel production of Alcotest repair records. The court
did not set a trial date, and defendant subsequently filed a motion
to dismiss the summonses on speedy trial grounds.
Two months later on August 7, 2013, Ratka appeared and
testified in a proceeding jointly conducted in defendant's matter,
another case defendant's counsel had pending, and two other cases
involving separate defendants represented by other counsel. At
the conclusion of Ratka's testimony, the judge asked defendant's
counsel if he wanted to argue defendant's speedy trial motion.
Because it was very late in the evening, it was agreed that counsel
would return on another date to argue the motion. The court
suggested the dates of August 14, 21 and 28, but defendant's
counsel could not determine if he was available on those dates
because his office was closed. He stated he would advise the
court the following day as to his availability.
The court heard argument on defendant's speedy trial motion
on September 11, 2013. In a detailed oral opinion detailing the
history of the matter and the reasons for the delays, and applying
the principles set forth in Barker v. Wingo, 407 U.S. 514, 515,
92 S. Ct. 2182, 33 L.Ed. 2d 101 (1972), the court denied the
motion. In a proceeding on September 25, 2013, the court heard
5 A-2174-15T4 argument on defendant's motion to compel additional discovery, and
also denied the motion.
On October 9, 2013, defendant's counsel appeared before the
court for a scheduling conference and the trial was scheduled for
November 20, 2013. Defendant appeared on that date and entered a
conditional plea of guilty to DWI, with the agreement that the
State would dismiss the other summonses. Defendant's plea was
conditioned on his right to appeal the court's denial of his speedy
trial motion.5
Defendant provided a factual basis for his plea to DWI, and
the court accepted his plea and sentenced defendant as a third-
time offender to 180 days of incarceration of which ninety days
could be served in an inpatient program, a ten-year loss of
license, attendance at the intoxicated driver resource center,
installation of an ignition interlock device, and the appropriate
fines and penalties. The judge stayed the imposition of
defendant's jail sentence. Defendant filed an appeal of the
court's denial of his speedy trial motion with the Law Division.
5 Defendant's plea was also conditioned on his right to appeal the court's denial of his motion to compel discovery and a motion for recusal of the municipal court judge. The court's denials of those motions are not challenged on appeal.
6 A-2174-15T4 The record shows the Law Division hearing was scheduled for
"late May" 2014, but was adjourned at defendant's request until
August 20, 2014. At the commencement of the proceeding, the court
noted that defendant was not present. Defendant's counsel
acknowledged the matter had been adjourned from its original date
at defendant's request, and said his office sent defendant a
"written notice . . . to appear . . . before" the court on August
20, 2014. Counsel further advised that since sending the written
notice, his office unsuccessfully tried to reach defendant
telephonically.
Counsel asserted that during the municipal court proceedings
defendant had "never failed to appear" and he could not make any
representation as to why defendant was not present. Counsel
stated, however, that he was uncomfortable proceeding in
defendant's absence and did not wish to proceed without defendant
being "aware of what arguments were made on his behalf."
The judge reasoned that because defendant requested the
original adjournment and was provided with written notice by
counsel directing that he appear before the Law Division on August
20, 2014, defendant made a voluntary decision not to be present.
The court further noted that disposition of the motion did not
require any testimony from any witnesses, including defendant,
because the court was conducting a de novo review of the municipal
7 A-2174-15T4 court's denial of the speedy trial motion. The court determined
the matter would proceed as scheduled.
During oral argument, defendant's counsel requested an
opportunity to address in a "subsequent argument" the effect of
the eleven-month delay in the municipal court proceedings
resulting from the pendency of Draeger's motion for leave to file
an interlocutory appeal with the Law Division. The court granted
defendant's request, and offered defendant's counsel an
opportunity to file an additional written submission. The court
further stated that when the additional written submission was
made, the court would schedule "another hearing date and we'll
take it from there."
Defendant's counsel did not make any further written
submission to the court, and no further hearing was held. In a
written opinion, the court traced the procedural history of the
case, applied the Barker speedy trial standards, and denied
defendant's motion to dismiss the summonses on speedy trial
grounds. The court entered an order and remanded the matter to
the municipal court. On January 13, 2016, the municipal court
entered an order directing that defendant commence serving his
jail sentence. This appeal followed.
On appeal, defendant makes the following two arguments:
POINT I
8 A-2174-15T4 THE DEFENDANT'S CONVICTION AFTER TRIAL DE NOVO IN THE MERCER COUNTY SUPERIOR COURT SHOULD BE VACATED DUE TO THE FACT THAT THE DEFENDANT WAS NOT PRESENT FOR HIS TRIAL DE NOVO PROCEEDINGS AND WAS NEVER ADVISED THAT THE TRIAL DE NOVO WOULD PROCEED WITHOUT HIM. (Not Raised Below).
POINT II
THE WITHIN MATTER SHOULD HAVE BEEN DISMISSED BY THE LAW DIVISION PREDICATED UPON THE DEPRIVATION OF THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL PROVIDED FOR IN THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.
II.
We first address defendant's contention that the order
denying his motion to dismiss on speedy trial grounds should be
vacated because he was not present during the de novo proceeding
in the Law Division. The State does not dispute that defendant
had the right to be present at the Law Division proceeding, but
contends defendant impliedly waived his right to be present by his
unexplained absence.
It is well settled that the United States and New Jersey
Constitutions guarantee a defendant's right to be present for
every stage of a trial. State v. Luna, 193 N.J. 202, 209 (2007)
(citations omitted). A defendant's "right to be present at trial
is protected by the Sixth Amendment to the United States
Constitution as applied to the states through the Fourteenth
9 A-2174-15T4 Amendment, and by Article I, paragraph 10 of the New Jersey
Constitution[,]" and "[i]n some circumstances that do not involve
the confronting of witnesses or evidence against a defendant, the
right is protected by the due process clauses of the Fifth and
Fourteenth Amendments." State v. Dellisanti, 203 N.J. 444, 453
(2010) (citations omitted). "The right is so vital to the proper
and fair functioning of the criminal justice system that it is
protected by" Rule 3:16(b). Id. at 454.
A defendant may voluntarily waive the right to appear at a
trial proceeding. R. 3:16(b); State v. Hudson, 119 N.J. 165, 182
(1990). But a finding that a defendant voluntarily waived the
right to appear must be supported by evidence the defendant was
actually informed of the trial date and unjustifiably failed to
appear. State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995),
certif. denied, 145 N.J. 376 (1996). A determination that a
defendant voluntarily waived the right to be present for a trial
proceeding cannot be based solely on a failure to appear; the
"judge should attempt to learn where the defendant is and why [the
defendant] is absent and make appropriate findings." Ibid.
Here, it appears defendant was advised of the original May
2014 de novo hearing date before the Law Division, but that date
was adjourned to August 20, 2014. Although defense counsel advised
the court that his office sent defendant a letter about the new
10 A-2174-15T4 date, the letter was not presented to the court and the court
could not determine if it provided defendant with adequate notice
of the new hearing date. Moreover, there was no information or
evidence concerning the reason for defendant's absence. See ibid.
(finding decision that the defendant voluntarily waived his right
to appear required consideration of "why" a defendant is absent).
The record therefore does not support the court's finding that
defendant voluntarily waived his right to appear at the de novo
hearing.
A defendant's absence from a trial proceeding does not,
however, require a reversal of a conviction or a court's decision.
Dellisanti, supra, 203 N.J. at 457-59. Where, as here, it is
claimed the court erred by conducting a proceeding outside of
defendant's presence, we examine the record to determine if the
defendant suffered any prejudice. Id. at 458. Our Supreme Court
has "examined whether the absence was prejudicial to the
defendant's right to participate in the evidential proceedings and
confront the witnesses and evidence against him or to his ability
to assist with his own defense." Id. at 458-59; State v. A.R.,
213 N.J. 542, 557-58 (2013). "When the absence deprives a
defendant of confrontation rights, prejudice can be readily
assessed; when confrontational interests are not in play and
participation in one's defense is the issue, prejudice is more
11 A-2174-15T4 critically examined." Id. at 459; see A.R., supra, 213 N.J. at
558.
Defendant's absence from the de novo hearing did not prejudice
his confrontation rights. The judge determined the speedy trial
motion based solely on the written record presented to the
municipal court, and defendant does not contend there was a basis
on which the record could have been supplemented. See State v.
Taimanglo, 403 N.J. Super. 112, 122 (App. Div. 2008) (rejecting
the defendant's claim that his absence from a trial de novo on a
municipal court record required reversal, in part, because
defendant offered no basis to supplement the record), certif.
denied, 197 N.J. 477 (2009). There were no witnesses or evidence
presented to the Law Division judge, and defendant's confrontation
rights were not prejudiced by his absence. Compare State v. Byrd,
198 N.J. 319, 356-57 (2009) (finding defendant's confrontation
rights violated by the court's questioning of State's witness
outside of the defendant's presence). Defendant offers no argument
to the contrary.
Defendant argues his absence from the de novo hearing affected
his ability to participate in his defense. We are not persuaded.
Again, the de novo hearing was based solely on the record before
the municipal court and the briefs submitted by counsel, and the
court was required to decide a purely legal issue as to whether
12 A-2174-15T4 defendant's speedy trial rights were violated. See State v.
Morton, 155 N.J. 383, 445 (1998) (finding defendant's absence from
argument on pretrial motions did not prejudice his right to assist
counsel in his defense because the motions centered only on
questions of law), cert. denied, 532 U.S. 931, 121 S. Ct. 1380,
149 L. Ed. 2d 306 (2001).
Defendant fails to demonstrate he suffered any prejudice as
a result of his absence from the de novo hearing, and our review
of the record does not reveal any prejudice. Therefore, we reject
defendant's contention that we should vacate the Law Division's
order denying his motion to dismiss based on speedy trial grounds
because he was not present at the de novo hearing. See Dellisanti,
supra, 203 N.J. at 462; A.R., supra, 213 N.J. at 559.
Defendant next argues that the court erred by denying his
motion to dismiss the summonses based on speedy trial grounds.
The right to a speedy trial extends to quasi-criminal matters
pending in municipal courts. State v. Cahill, 213 N.J. 253, 267
(2013). The question whether defendant's constitutional right to
a speedy trial was violated presents a legal issue that is subject
to de novo review. See State v. Handy, 206 N.J. 39, 44-45 (2011).
Our Supreme Court has adopted the balancing test governing
the evaluation of claims of speedy trial violation established in
Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d
13 A-2174-15T4 at 117. Cahill, supra, 213 N.J. at 267. The Barker standard
requires an assessment of four factors: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant's assertion
of his right, and (4) prejudice to the defendant. Barker, supra,
407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Under
the Barker standard none of the factors are "a necessary or
sufficient condition to the finding of a deprivation of the right
of speedy trial." Ibid. Rather, they are related factors that
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.
The analysis is highly fact sensitive and requires "a case-by-case
analysis rather than a bright-line time limitation." Cahill,
supra, 213 N.J. at 270.
Defendant limits his speedy trial argument to the contention
that the 437-day delay between the April 2, 2012 filing of
Draeger's motion to quash the Ratka subpoena and the June 12, 2013
filing of defendant's speedy trial motion requires dismissal of
the summonses under the Barker standard.6 "The inquiry is" whether
6 In his brief, defendant states that he "is not asking the [c]ourt to consider the entire age[] of [d]efendant's matter in the context of the . . . [m]otion to [d]ismiss." Instead, defendant asked the "[c]ourt to consider the delay that [he] experienced between April 2, 2012, . . . [and] June 12, 2013," the day he filed his speedy trial motion. Defendant does not claim that the delay from the date of his arrest, February 5, 2012, to the October 9, 2013
14 A-2174-15T4 the length of the delay "is reasonable or whether it violated
defendant's right to a speedy trial." Id. at 272-73. Depending
on the circumstances, the length of the delay may be presumptively
prejudicial and such a delay will trigger consideration of the
other factors, including the nature of the charges against the
defendant. Id. at 264. Typically, once the delay exceeds one
year, it is appropriate to engage in the analysis of the remaining
Barker factors. Cahill, supra, 213 N.J. at 266. However, there
is no bright-line test requiring dismissal after a specified period
of delay. Id. at 270.
Here, the 437-day delay about which defendant complains
exceeds one year. That period includes the thirty-seven days
between the April 2, 2012 filing of Draeger's motion to quash and
the May 8, 2012 municipal court hearing on the motion. We find
nothing unreasonable about the short period between the motion's
filing date and the court's disposition of the motion.
The 437-day delay also includes the forty-seven days between
the Law Division's April 26, 2013 order denying leave to appeal
setting of his trial date requires dismissal of the summonses on speedy trial grounds. Thus, we consider only the 437-day period upon which defendant relies in our determination as to whether his trial rights were violated. Any claim that his speedy trial rights were violated because delays before or after the 437-day period is waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
15 A-2174-15T4 and the June 12, 2013 filing of defendant's speedy trial motion.
This delay was exclusively within defendant's control and we are
therefore convinced it does not support a claim of unreasonable
delay.
The remaining 353 days of the delay began with the April 2,
2012 filing of Draeger's motion to quash the subpoena. Following
the filing of the motion, the municipal court promptly heard
argument, denied the motion and ordered that Ratka appear.
Draeger's motion for leave to file an interlocutory appeal was
granted and the Law Division rendered a decision eleven months
later. During that time, the municipal court stayed its
proceedings without any objection from defendant.
The State did not join Draeger's appeal and there is no
evidence the proceedings on the motion to quash in the municipal
court and subsequent appeal in the Law Division were delayed by
any action or inaction of the State. Compare State v. Fulford,
349 N.J. Super. 183, 194-95 (App. Div. 2002) (concluding a thirty-
two month delay due to the State's voluntary pretrial intervention
term was not the basis for dismissal on speedy trial grounds)
State v. Tsetsekas, 411 N.J. Super. 1, 11-14 (App. Div. 2009)
(holding a 344 day delay was unacceptable because of the State's
lack of preparation); State v. Farrell, 320 N.J. Super. 425, 452-
453 (App. Div. 1999) (holding a 663 day delay and thirteen non-
16 A-2174-15T4 continuous widely-spaced court sessions as excessive, because of
prosecutorial inattention to trial responsibilities); and State
v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983) (finding a
seven and a half month delay was not a speedy trial violation
because the lapse in time was reasonably justified and explained
by a transfer between municipal courts and the unavoidable absence
of the prosecution's witness). There is also no support in the
record for defendant's contention that Ratka was an agent of the
State or the State's witness. The delay was not the fault of any
party, but instead was the result of active litigation between
defendant and Draeger over a contested issue concerning the
appearance of a witness. Under all of the circumstances presented,
we are satisfied the delay was not unreasonable.
We also consider the reason for the delay. See Cahill, supra,
213 N.J. at 273. Again, 353 days of the challenged delay was the
result of the motion practice and subsequent appeal related to the
dispute between defendant and Draeger over the validity of the
Ratka subpoena. The dispute over the subpoena complicated
defendant's case, and resulted in an attempted appeal that required
resolution before the case could continue in the municipal court.
Moreover, there is no reason for the delay that is attributable
17 A-2174-15T4 to the State.7 See, e.g., Tsetsekas, supra, 411 N.J. Super. at 14
(finding a 344 day delay was excessive because it was brought on
by the State's lack of preparation); Detrick, supra, 192 N.J.
Super. at 426 (rejecting a claimed speedy trial violation in a DWI
matter where the seven-month delay was caused by a change in venue
and the absence of witnesses). The reason for the delay factor
under Barker therefore weighs against defendant's speedy trial
claim.
Defendant asserted his right to a speedy trial for the first
time on May 15, 2013, in a proceeding before the municipal court
and in a letter to the court. Defendant filed his speedy trial
motion on June 12, 2013. Thus, the third Barker factor supports
defendant's speedy trial claim, but we give the factor little
weight because defendant did not assert the right until late in
the 437-day delay period about which he complains. We are mindful
that "[a] defendant does not . . . have the obligation to bring
himself to trial." Cahill, supra, 231 N.J. at 274. A failure to
timely assert the right, however, is a factor to be considered in
the assessment of an alleged speedy trial violation. Ibid.
7 On May 15, 2013, three weeks after the Law Division's order denying Draeger's motion for leave to appeal, the State advised the court it was ready to proceed to trial. At that time, defense counsel advised that he could not proceed to trial because he intended to file a speedy trial motion and had an outstanding motion to compel discovery.
18 A-2174-15T4 We last address the fourth Barker factor, prejudice to
defendant. See Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192,
33 L. Ed. 2d at 117. In addressing prejudice, we consider three
interests: prevention of oppressive pretrial incarceration,
minimization of defendant's anxiety concerns and whether the
defense has been impaired by the delay. See Barker, supra, 407
U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118; Cahill, supra,
213 N.J. at 266.
Defendant does not claim that he was subject to pretrial
incarceration or that his defense was impaired by the 437-day
delay. Instead, he generally contends the delay caused disruption
to his daily activities, the consumption of time and money, and
emotional anxiety. Although the record is devoid of any evidential
support for the claim, we recognize that defendant may have
suffered from the uncertainty caused by the delay. Hardship caused
by the uncertainty of awaiting disposition of his case, however,
"is insufficient to constitute meaningful prejudice." State v.
Misurella, 421 N.J. Super. 538, 546 (App. Div. 2011) (quoting
State v. Le Furge, 222 N.J. Super. 92, 99-100 (App. Div.), certif.
denied, 111 N.J. 568 (1988)).
In sum, the 437-day delay here was primarily the result of
the resolution of an issue litigated between Draeger and defendant.
The State did not contribute to the delay, and the delay did not
19 A-2174-15T4 cause defendant any appreciable prejudice. We therefore conclude
the court correctly denied defendant's motion to dismiss the
summonses on speedy trial grounds.
Affirmed.
20 A-2174-15T4