NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0900-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MILAN SHAH,
Defendant-Appellant. ______________________________
Argued November 6, 2019 – Decided November 26, 2019
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 18- 15.
Greggory M. Marootian argued the cause for appellant.
Natacha Despinos Peavey, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Natacha Despinos Peavey, of counsel and on the brief).
PER CURIAM Defendant Milan Shah appeals from his conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50. The court sentenced defendant to a ninety-
day license suspension, imposed applicable fines and costs, and required
defendant to spend twelve hours at the Intoxicated Driver Resource Center. For
the reasons that follow, we affirm.
I.
On October 9, 2016, New Jersey State Trooper Harris observed defendant
failing to maintain lanes on Interstate 78 westbound in Warren Township.
Trooper Harris effectuated a motor vehicle stop and detected the odor of alcohol
first emanating from the interior of the vehicle, then on defendant's breath.
Defendant admitted having a couple of beers that night. His speech was slow.
A series of field sobriety tests were conducted by Trooper Harris on defendant.
He swayed and was unable to perform the Walk and Turn Test or the One-Leg
Stand Test.
Trooper Harris noticed defendant's eyes were bloodshot. He was unable
to perform the Horizontal Gaze Nystagmus Test. Defendant was arrested for
DWI, N.J.S.A. 39:4-50, and brought to the processing area, where he was
informed of his Miranda rights,1 advised of his obligation to provide breath
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0900-18T3 2 samples, and read the Attorney General's Standard Statement For Motor Vehicle
Operators, N.J.S.A. 39:4-50.2(e).
When asked to submit samples of his breath for testing, he initially agreed
but later refused. An Alcotest was administered but defendant did not provide
the minimum volume of air necessary to perform the test.
Defendant was charged with DWI; failing to consent to provide breath
samples, N.J.S.A. 39:4-50.2; refusing to submit to a breath test, N.J.S.A. 39:4-
50.4(a); failing to maintain a lane of travel, N.J.S.A. 39:4-88(b); and careless
driving, N.J.S.A. 39:4-97.
On October 17, 2016, defendant pled not guilty, served an initial discovery
request, and demanded a speedy trial. The matter was scheduled for November
29, 2016, but adjourned until January 3, 2017 because defendant wanted to retain
an expert. A defense expert report was not served by January 3, 2017,
necessitating another adjournment to January 10, 2017.
By consent, the parties agreed to adjourn the trial until February 21, 2017,
to discuss a possible resolution. The February 21, 2017 trial date was postponed ,
at defendant's request, because he wanted to review the State's plea offer with
his immigration attorney and his expert report had not yet been served. The trial
was rescheduled to March 24, 2017.
A-0900-18T3 3 The March 24, 2017 trial date had to be adjourned because Trooper Harris
was involved in a car accident and was unable to appear. The matter was
tentatively rescheduled for May 16, 2017, but had to be adjourned because the
court had an older DWI case to try that day. Trooper Harris was unavailable
until September 2017. Defense counsel served a second medical expert report
on June 7, 2017. The first firm trial date assigned was September 5, 2017. Prior
to that date, the municipal prosecutor advised defense counsel that Trooper
Harris was deployed on assignment by the National Guard and was unavailable
to testify.
Defendant moved to dismiss on speedy trial grounds but the motion was
denied. The matter was rescheduled for September 29, 2017, and adjourned at
defendant's request because his experts were unavailable to testify that day. The
trial was relisted for October 31, 2017. Defendant renewed his motion to
dismiss, but no ruling was made at that time.
Prior thereto, the municipal prosecutor informed defense counsel that
Trooper Harris was on active deployment in Puerto Rico to assist with Hurricane
Maria relief efforts. The judge adjourned the trial, noting this was a justifiable
cause. Another trial date was not assigned for the next two months because the
presiding municipal judge was not reappointed. On February 6, 2018, the acting
A-0900-18T3 4 municipal judge rescheduled the matter for March 27, 2018, before the newly
appointed judge, who in turn assigned an April 10, 2018 trial date.
Defendant again moved to dismiss. The municipal court judge denied the
motion, noting delays were attributable to both defendant and the State, and
defendant was not prejudiced by the 545-day delay.2 Further, defendant's Visa
did not expire until the end of 2019, providing him with "over a year and a half
to address any Visa concerns." On April 10, 2018, defendant entered a
conditional plea of guilty to DWI, and the State agreed to dismiss the other
charges.
Thereafter, defendant appealed to the Law Division. Following a hearing
de novo, the Law Division judge found that length of the delay was only one
factor to consider and denial of defendant's motion to dismiss was proper. In
his written statement of reasons, the Law Division judge found "the delays were
ultimately explainable, attributable to both parties, and resulted in no prejudice
to . . . defendant." The judge also explained that:
[d]efense [counsel] requested two month long adjournments so that [he] could obtain expert witnesses and seek legal advice in regard to his immigration status. One adjournment was the result of the municipal court judge retiring. The adjournments requested by the State stem from the absence of Trooper Harris, a
2 Defendant asserts there was a 548-day delay. A-0900-18T3 5 key witness. Trooper Harris's absences were not the result of choice, as he was called to serve in the National Guard and was in a car accident. While [in] one instance his absence was the result of a scheduling mix-up, the delays and adjournments the State requested were not the result of the State delaying the process purposefully nor the result of the State being unprepared.
In addition, the judge found defendant had asserted his right to a speedy
trial throughout, but defendant failed to show he was prejudiced by the delay.
Defendant did not show the delay adversely affected his ability to defend the
charges. He also claimed the delay caused him to suffer adverse psychological
and financial impacts, but the judge observed "these are circumstances
experienced by all defendants when facing pending prosecution."
The judge concluded the denial of defendant's motion to dismiss was
proper. This appeal followed.
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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-0900-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MILAN SHAH,
Defendant-Appellant. ______________________________
Argued November 6, 2019 – Decided November 26, 2019
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 18- 15.
Greggory M. Marootian argued the cause for appellant.
Natacha Despinos Peavey, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Natacha Despinos Peavey, of counsel and on the brief).
PER CURIAM Defendant Milan Shah appeals from his conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50. The court sentenced defendant to a ninety-
day license suspension, imposed applicable fines and costs, and required
defendant to spend twelve hours at the Intoxicated Driver Resource Center. For
the reasons that follow, we affirm.
I.
On October 9, 2016, New Jersey State Trooper Harris observed defendant
failing to maintain lanes on Interstate 78 westbound in Warren Township.
Trooper Harris effectuated a motor vehicle stop and detected the odor of alcohol
first emanating from the interior of the vehicle, then on defendant's breath.
Defendant admitted having a couple of beers that night. His speech was slow.
A series of field sobriety tests were conducted by Trooper Harris on defendant.
He swayed and was unable to perform the Walk and Turn Test or the One-Leg
Stand Test.
Trooper Harris noticed defendant's eyes were bloodshot. He was unable
to perform the Horizontal Gaze Nystagmus Test. Defendant was arrested for
DWI, N.J.S.A. 39:4-50, and brought to the processing area, where he was
informed of his Miranda rights,1 advised of his obligation to provide breath
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0900-18T3 2 samples, and read the Attorney General's Standard Statement For Motor Vehicle
Operators, N.J.S.A. 39:4-50.2(e).
When asked to submit samples of his breath for testing, he initially agreed
but later refused. An Alcotest was administered but defendant did not provide
the minimum volume of air necessary to perform the test.
Defendant was charged with DWI; failing to consent to provide breath
samples, N.J.S.A. 39:4-50.2; refusing to submit to a breath test, N.J.S.A. 39:4-
50.4(a); failing to maintain a lane of travel, N.J.S.A. 39:4-88(b); and careless
driving, N.J.S.A. 39:4-97.
On October 17, 2016, defendant pled not guilty, served an initial discovery
request, and demanded a speedy trial. The matter was scheduled for November
29, 2016, but adjourned until January 3, 2017 because defendant wanted to retain
an expert. A defense expert report was not served by January 3, 2017,
necessitating another adjournment to January 10, 2017.
By consent, the parties agreed to adjourn the trial until February 21, 2017,
to discuss a possible resolution. The February 21, 2017 trial date was postponed ,
at defendant's request, because he wanted to review the State's plea offer with
his immigration attorney and his expert report had not yet been served. The trial
was rescheduled to March 24, 2017.
A-0900-18T3 3 The March 24, 2017 trial date had to be adjourned because Trooper Harris
was involved in a car accident and was unable to appear. The matter was
tentatively rescheduled for May 16, 2017, but had to be adjourned because the
court had an older DWI case to try that day. Trooper Harris was unavailable
until September 2017. Defense counsel served a second medical expert report
on June 7, 2017. The first firm trial date assigned was September 5, 2017. Prior
to that date, the municipal prosecutor advised defense counsel that Trooper
Harris was deployed on assignment by the National Guard and was unavailable
to testify.
Defendant moved to dismiss on speedy trial grounds but the motion was
denied. The matter was rescheduled for September 29, 2017, and adjourned at
defendant's request because his experts were unavailable to testify that day. The
trial was relisted for October 31, 2017. Defendant renewed his motion to
dismiss, but no ruling was made at that time.
Prior thereto, the municipal prosecutor informed defense counsel that
Trooper Harris was on active deployment in Puerto Rico to assist with Hurricane
Maria relief efforts. The judge adjourned the trial, noting this was a justifiable
cause. Another trial date was not assigned for the next two months because the
presiding municipal judge was not reappointed. On February 6, 2018, the acting
A-0900-18T3 4 municipal judge rescheduled the matter for March 27, 2018, before the newly
appointed judge, who in turn assigned an April 10, 2018 trial date.
Defendant again moved to dismiss. The municipal court judge denied the
motion, noting delays were attributable to both defendant and the State, and
defendant was not prejudiced by the 545-day delay.2 Further, defendant's Visa
did not expire until the end of 2019, providing him with "over a year and a half
to address any Visa concerns." On April 10, 2018, defendant entered a
conditional plea of guilty to DWI, and the State agreed to dismiss the other
charges.
Thereafter, defendant appealed to the Law Division. Following a hearing
de novo, the Law Division judge found that length of the delay was only one
factor to consider and denial of defendant's motion to dismiss was proper. In
his written statement of reasons, the Law Division judge found "the delays were
ultimately explainable, attributable to both parties, and resulted in no prejudice
to . . . defendant." The judge also explained that:
[d]efense [counsel] requested two month long adjournments so that [he] could obtain expert witnesses and seek legal advice in regard to his immigration status. One adjournment was the result of the municipal court judge retiring. The adjournments requested by the State stem from the absence of Trooper Harris, a
2 Defendant asserts there was a 548-day delay. A-0900-18T3 5 key witness. Trooper Harris's absences were not the result of choice, as he was called to serve in the National Guard and was in a car accident. While [in] one instance his absence was the result of a scheduling mix-up, the delays and adjournments the State requested were not the result of the State delaying the process purposefully nor the result of the State being unprepared.
In addition, the judge found defendant had asserted his right to a speedy
trial throughout, but defendant failed to show he was prejudiced by the delay.
Defendant did not show the delay adversely affected his ability to defend the
charges. He also claimed the delay caused him to suffer adverse psychological
and financial impacts, but the judge observed "these are circumstances
experienced by all defendants when facing pending prosecution."
The judge concluded the denial of defendant's motion to dismiss was
proper. This appeal followed.
On appeal, defendant raises the following point:
THE STAGGERING 548-DAY DELAY, FROM THE DATE THE COMPLAINTS WERE ISSUED, OCTOBER 9, 2016, TO THE MUNICIPAL COURT RESOLUTION, APRIL 10, 2018, VIOLATED SHAH'S CONSTITUTIONALLY GUARANTEED SPEEDY TRIAL RIGHTS, DELAYS LARGELY CREATED BECAUSE THE STATE'S WITNESS, THE ARRESTING [NEW JERSEY] STATE TROOPER, WOULD NOT APPEAR FOR TRIAL UNLESS HE WAS ON DUTY (BECAUSE THE STATE DID NOT WANT TO PAY OVERTIME), THE
A-0900-18T3 6 TROOPER FAILED TO TIMELY ADVISE THE COURT REGARDING HIS COMMITMENTS, AND THE COURT WAS UNABLE TO ACCOMMODATE A TRIAL, CONSITUTIONAL TRANSGRESSIONS COMPOUNDED BY THE COURT'S REFUSAL TO HONOR 'TRY OR DISMISS' TRIAL MARKINGS, VIOLATING SHAH'S DUE PROCESS RIGHTS TO A FUNDAMENTALLY FAIR PROCESS.
After reviewing the record in light of the contentions on appeal and the
applicable law, we reject defendant's speedy trial arguments, and further
conclude that the trial court's ruling on the speedy trial motion is supported by
sufficient, credible evidence in the trial record. Accordingly, we affirm.
II.
Our standard of review is well-settled. The trial judge's factual findings
will not be disturbed where they are supported by sufficient credible evidence
in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We defer to the trial
court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App.
Div. 2000). In an appeal from a de novo hearing on the record, we consider only
the action of the Law Division and not that of the municipal court. State v.
Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).
A determination by a trial judge regarding whether defendant was
deprived of his right to a speedy trial should not be overturned unless it was
clearly an abuse of discretion. State v. Tsetsekas, 411 N.J. Super. 1, 10 (App.
A-0900-18T3 7 Div. 2009); State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). This
standard is highly deferential to the trier of fact. We will only reverse if the
decision is shown to be so erroneous that no reasonable analysis could have
produced it.
The Sixth Amendment, by way of the Due Process Clause of the
Fourteenth Amendment, guarantees the accused the right to a speedy trial in
state prosecutions. Barker v. Wingo, 407 U.S. 514, 515 (1972) (citing Klopfer
v. North Carolina, 386 U.S. 213, 222 (1967)); see State v. Szima, 70 N.J. 196,
200-01 (1976) (discussing the speedy-trial right under Art. I, paragraph 10 of
the New Jersey Constitution and the federal Constitution).
The speedy-trial right protects a defendant's interest in minimizing
"pretrial incarceration," the accused's pretrial "anxiety and concern," and delay
that impairs the ability to present a defense. Barker, 407 U.S. at 532. Alleged
violations of the speedy-trial right are assessed by balancing four factors: "(1)
the length of the delay[;] (2) the reasons for the delay[;] (3) whether and how
defendant asserted his speedy[-]trial right[;] and (4) the prejudice to defendant
caused by the delay." State v. Townsend, 186 N.J. 473, 487 (2006).
In applying the four-part test, "[n]o single factor is a necessary or
sufficient condition to the finding of a deprivation of the right to a speedy trial."
A-0900-18T3 8 Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S. at 533). "Rather, the
factors are interrelated," and a fact-sensitive analysis is necessary so that each
factor is "considered in light of the relevant circumstances of each particular
case." Ibid. Each application for dismissal based on speedy trial principles is
fact-sensitive, and requires "a case-by-case analysis rather than a bright-line
time limitation . . . ." State v. Cahill, 213 N.J. 253, 270 (2013). Fairness calls
for varying timelines depending on individual circumstances—a delay of 344
days between arrest and resolution was unacceptable in one case, while in
another, a thirty-two-month delay was deemed justifiable. Id. at 271.
Regarding the first and second factors, the length and reasons for the
delay, we recognize the delays in Trooper Harris being unavailable resulted in
trial postponements. However, defendant was also responsible for some of the
delay. Defendant's service of expert reports and request to confer with his
immigration attorney about the State's plea offer contributed to the delay.
"[A]ny delay that defendant caused or requested would not weigh in favor of
finding a speedy trial violation." State v. Long, 119 N.J. 439, 470 (1990)
(quoting State v. Gallegan, 117 N.J. 345, 355 (1989)).
A-0900-18T3 9 There is no indication in the record that the State used adjournments to
gain a tactical advantage. Given these circumstances, the length of the delay
does not weigh against the State.
The third factor requires defendant to assert the right to a speedy trial.
Defendant first asserted that right on October 17, 2016. But he was not ready
to proceed to trial on that date until after service of his expert reports and after
he spoke with his immigration attorney. Under these circumstances, we decline
to weigh the third factor in defendant's favor.
Finally, as to the fourth factor, except for pre-verdict anxiety, stress, and
personal inconvenience, the lack of significant prejudice suffered by defendant
militates against dismissal of his case. As the trial court recognized, defendant
was not subject to pretrial incarceration, his driver's license was not suspended,
and he was free to handle his personal affairs. Accordingly, measured against
the four Barker factors, we conclude there was no violation of defendant's
constitutional speedy trial right.
We conclude that the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0900-18T3 10