NJ DWI-DUI defendant wins on technicality!
Nov 10th, 2008 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)Last week a New Jersey driver actually won his DWI-DUI appeal in the NJ Appellate Division. This defendant was charged with DWI-DUI in NJ along with a slew of other related NJ traffic violations after a single vehicle NJ car accident. This defendant was convicted of the DWI-DWI charge in both the NJ Municipal Court and the NJ Law Division.
The NJ Appellate Division agreed with the defendant’s argument that the NJ police officer failed to properly charge him with the NJ DWI-DUI refusal charge. The charge on the traffic ticket stated: “refusal to submit blood,” instead of “failure to submit to a Breathalyzer test.”
The NJ Appellate Division ruled that this was a violation of due process. What was this NJ police officer thinking? It is very unusual for NJ Police officers to take blood after an NJ DWI-DUI.
Do you think that that court made a good decision? Do you really think that the NJ DWI-DUI suspect did not understand that he was being charged with a DWI-DUI refusal?
this goes against all of my research, that says an error on a summons is correctable by a judge, and does not warrant a dismissal,…wow, this is perplexing, cause the appellate division has knocked down every an arguement on this coming from several attorneys.
however, it is the right decision,. no?
it makes me wonder, that if a dui charged driver can win his case based on a police officer making a kmistake on a ticket— which is totally suppose to be correctable by the judge,….. to ammend the charge, ….. that i should have my case won because of up to 100 counts of criminal contempt of court.
and what ius the prosecutor thinking, certainly the refusal was not the only charge…..
certainly the defendant was also charged with dui, ….. why didnt the prosecutor trial the case on observations to get the dui conviction?
i bet this case was arrested, went to court, tried or whatever, went to the law division, and to the appellate division, — an d the entire think took less than 18 months….
as you know my case is over 38 months and i cant even get any kind of a hearing or trial or anything, through 18 court appearances
what about the million of defendants in the past that have had summones issued with wrong information on them, and the judge corrected it in court?….
why does it continue to appear the courts make up the law as they go?
BELOW IS CASE LAW OF STATVE V MASCULINE, 2005, IN NJ, concerning court orders …. then below that is a court order from the nj supreme court, directed to the municipal court judge and prosecutor in my case,….
not only wasnt the order to ” proceed to trial” obeyed in my case, but it wasnt obeyed in any case in this municipal court in regards to the order, …. they held no trials during the 26 month life of the court order to do so, delaying as many as 100 cases, …. which would make it as many as 100 counts of CRIMINAL CONTEMPT.
“An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the act under which the order is issued. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished. Violations of an order are punishable as criminal contempt even though the order is set aside on appeal, or though the basic action has become moot.” STATE v. MASCULIN, 355 N.J. Super. 250
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
MEMORANDUM TO: Municipal Court Judges
FROM: Philip S. Carchman, J.A.D.
SUBJECT: State v. Chun — Status
DATE: February 14, 2007
This memorandum is to update you on the status of State v. Chun. As you know,
the Supreme Court in Chun appointed retired Appellate Division Presiding Judge Michael
Patrick King as Special Master to develop a record, conduct hearings and report his
findings and conclusions to the Supreme Court regarding the reliability of the Alcotest
device. Judge King submitted his report to the Supreme Court on February 13, 2007. The
Court has arranged for an expedited briefing and oral argument schedule.
The question has been raised as to how the municipal courts are to proceed with
Alcotest cases now that Judge King has submitted his report to the Supreme Court. The
answer to that question is plainly stated in the Court’s January 10, 2006 order in the Chun
case (emphasis added):
Ordered that any and all requests for a reliability hearing in
respect of Alcotest devices are stayed pending the filing of
the Court’s final decision herein, at which time all pending
challenges to an Alcotest device’s reliability shall be decided
consistent with the Court’s disposition; . . .
Accordingly, the municipal courts should take no action based on submission of the
King report to the Court, either in pending cases or in any post-conviction relief
applications. Rather, the courts should wait until the Supreme Court renders its final
decision and act in accordance with that decision.
P.S.C.
c: Chief Justice James R. Zazzali Criminal Division Managers
Assignment Judges Municipal Division Managers
Criminal Presiding Judges Municipal Court Directors/Administrators
Presiding Judges—Municipal Courts AOC Directors and Assistant Directors
Trial Court Administrators Steven D. Bonville, Special Assistant
Stephen W. Townsend, Supreme Ct Clerk Francis W. Hoeber Special Assistant
Theodore J. Fetter, Deputy Admin. Director
read the entire farrell case, and undertand, that thse two lines are what happened in my case, and my case far exceedeed farrell.”We reverse because of the inexcusably extensive delay in prosecuting the charges to completion: 663 days from the issuance of the summonses through thirteen non-continuous, widely-spaced court sessions..”
“The failures of the process in this matter so far surpassed those previously described in the cases we have analyzed as to mandate a different result. We conclude that, here, 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.”
HERE IS THE COPY OF STATE V FARREL, NJ APPEALATE COURT, THAT OVERTURNED A FIRST OFFENSE DUI CONVICTION IN MUNCIPAL COURT, AND OVER TURNED RTHE LAW DIVISION, ….FOR SPEEDY TRIAL VIOLATION….
Law Division Opinion State V Farrell
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION A-6842-96T2
1. STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DUNCAN H. FARRELL,
Defendant-Appellant.
___________________________________
Argued: November 10, 1998 – Decided: April 22, 1999
Before Judges Kestin, Wefing and Carchman.
On appeal from the Superior Court of New Jersey,
Law Division, Criminal Part, Essex County.
Bartholomew Baffuto argued the cause for appellant
(John Menzel, attorney; Mr. Menzel, on the brief).
Robert L. Cerefice, Assistant Essex County
Prosecutor, argued the cause for respondent
(Patricia A. Hurt, Essex County Prosecutor, attorney;
Mr. Cerefice, of counsel and on the brief).
The opinion of the court was delivered by
KESTIN, J.A.D.
Defendant appeals from a judgment of conviction entered in the Law Division on de novo on the record appeal, R. 3:23-8(a), from the East Orange Municipal Court. The convictions were for driving while under the influence of intoxicants (DWI), N.J.S.A. 39:4-50, and failure to maintain a single lane, N.J.S.A. 39:4-88b. As in the Municipal Court, fines of $250 and $55 and court costs of $30 and $31, respectively, were imposed; and statutory assessments were ordered: $100 Alcohol Rehabilitation and Enforcement Fund, $50 V.C.C.B., and $75 Safe Neighborhood Fund. Enrollment in the I.D.R.C. was ordered and defendant’s driver’s license was suspended for 180 days. The sentence was stayed pending appeal.
On appeal, defendant raises the following issues:
POINT I THE MUNICIPAL COURT SHOULD HAVE DISMISSED COMPLAINTS AGAINST DEFENDANT BECAUSE THE STATE’S BAD FAITH IN CONDUCTING THE PROSECUTION AND ITS GROSS NEGLECT AND FAILURE TO TIMELY PROSECUTE VIOLATED SUPREME COURT DIRECTIVES, DEFENDANT’S SPEEDY TRIAL AND DOUBLE JEOPARDY RIGHTS, AND JUDICIAL INTEGRITY.
A. CONTINUATION OF PROCEEDINGS VIOLATED THE “60-DAY RULE.”
B. ADJOURNMENTS VIOLATED SPEEDY TRIAL PRINCIPLES.
1. DELAY WELL EXCEEDED 60 DAYS.
2. THE STATE CAUSED ALL BUT ONE ADJOURNMENT.
3. FARRELL REPEATEDLY ASSERTED HIS RIGHT TO A SPEEDY TRIAL.
4. FARRELL’S PREJUDICE IS BEYOND QUESTION.
C. ADJOURNMENTS VIOLATED DOUBLE JEOPARDY PRINCIPLES.
D. ADJOURNMENTS COMPROMISED JUDICIAL INTEGRITY AND DISCREDITED RELIANCE ON COURT ORDERS.POINT II EVIDENCE BASED ON THE TROOPER’S OBSERVATIONS OF DEFENDANT FAILED TO PROVE BEYOND REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE OF INTOXICATING LIQUOR.
POINT III CONVICTION OF BOTH DWI AND WEAVING VIOLATED DEFENDANT’S RIGHT TO BE FREE OF DOUBLE JEOPARDY IN THAT SUCH A RESULT FRACTIONALIZED CONDUCT COMMON TO BOTH CHARGES AND RESULTED IN MULTIPLE PUNISHMENTS FOR A SINGLE ACT.
POINT IV DEFENDANT WAS ENTITLED TO A JURY TRIAL.
We reverse because of the inexcusably extensive delay in prosecuting the charges to completion: 663 days from the issuance of the summonses through thirteen non-continuous, widely-spaced court sessions.
Defendant was charged on January 21, 1995 by New Jersey State Trooper Michael A. Mattia. An arraignment originally scheduled for February 2, 1995, was cancelled without court appearance. By letter dated February 3, 1995, defendant’s counsel, inter alia, entered his appearance and a not-guilty plea, filed notice of several pretrial motions, made discovery requests and proffers, and asserted defendant’s constitutional right to a speedy trial. On February 24, 1995, defense counsel acknowledged receipt of some discovery and requested other, missing, matter; and on February 25, he filed and served a brief in support of his motions, including those addressed to the breathalyzer procedures which had been employed and the admissibility of the results. An inordinate number of continuances and lengthy adjournments then ensued.
The parties first appeared for trial before Judge Watson of the East Orange Municipal Court on April 27, 1995, more than three months after the summonses were issued. The municipal prosecutor, Mr. Hodge, who had not yet responded to defendant’s motions and brief, sought additional time to meet the motions. Defense counsel consented, and the matter was carried to May 26, 1995, with the judge noting “we’re way past the deadline already on it.”
On May 26, 1995, the matter came on for trial before Judge Stephens. The municipal prosecutor’s office still had not responded to defendant’s motions, and State Trooper Mattia had not been notified to appear. Defendant was ready to proceed and again raised the issue of speedy trial, noting “we’re well past the 60-day guidelines.” Ms. Holmes was the municipal prosecutor assigned to the matter that day and in all the ensuing proceedings but one. She had not seen defendant’s motions and supporting brief, and was unprepared to address the issues raised. The trial judge adjourned the matter, noting “the duty upon our prosecutors . . . that they have to work their coordination out a little bit better.” Defense counsel requested “a deadline with regard to the response [to his motions and brief] and obviously, if there is no brief received by that deadline, I take it the motions would have to be entertained as unopposed.” The prosecutor agreed to a thirty-day deadline and the judge ordered it. The matter was continued for forty-nine days, until July 14, 1995.
On July 14, the matter was before Judge Booker. The State’s brief in response to defendant’s had been received by both defense counsel and the court that very day notwithstanding the thirty-day response period established by the court on May 26. A recently decided Appellate Division case bore upon an argument made by the State responding to defendant’s contention that the breathalyzer results were inadmissible, and the court offered defendant additional time to respond, until September 15.
On de novo on the record appeal to the Law Division, defendant argued the delay issue based on speedy trial and double jeopardy considerations, and the infirmity of the DWI verdict based on observational evidence alone. He also contended that convictions for both DWI and weaving violated defendant’s right to be free of double jeopardy, and that defendant had a right to a jury trial.
The speedy trial/double jeopardy issues were addressed first. After characterizing the delay as “exorbitant,” Judge Casale summarized the procedural history of the case and concluded that there had been no bad faith on the State’s part. He depicted the matter as beset by “unfortunate scheduling problems” attributable to the “court system itself,” which led to “extraordinary delay.” He concluded, based upon his view of the reasons for delay, however, that “defendant’s right to a speedy trial was not violated,” and that the adjournments ordered, especially those caused by the State’s problems in discharging its discovery obligations, “did not violate double jeopardy principles.”
Judge Casale then reviewed the evidence and found that the State had proved, through the evidence of Trooper Mattia’s observations, that defendant had been intoxicated at the time he was stopped and that he had failed to maintain a single lane. The judge held defendant’s right against double jeopardy not to be violated by separate convictions for both offenses; and he ruled that defendant had no right to a jury trial.
We disagree with the trial court’s reasoning and conclusion on the speedy trial/fundamental fairness aspects of the delay issue. See State v. Gallegan, 117 N.J. 345, 354-58 (1989). Because we conclude on that basis that the charges should have been dismissed, it is not necessary to determine whether the delay also impinged on defendant’s double jeopardy interests, see id. at 351-54, or whether there is any merit to the other arguments defendant has advanced to impugn the convictions.Excessive delay in completing a prosecution can potentially violate a defendant’s constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55. In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 h1972). Gallegan, supra, 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990). Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation. Gallegan, supra, 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff’d o.b., 70 N.J. 213 (1976). In a related vein, the defendant’s demonstration of prejudice is not strictly limited to a “lessened ability to defend on the merits.” Ibid. Rather, prejudice can be found from a variety of factors including “employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like.” Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)).
The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987). In Gallegan, supra, the Supreme Court suggested that some of the difficulties in concluding municipal court cases with appropriate dispatch arise from “an unavoidable tension between our current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases.” 117 N.J. at 347. In Prickett, supra, 240 N.J. Super. at 144, we discussed the failure of good management practices in many of the municipal courts. Nevertheless, “in the administration of justice dismissal must be a recourse of last resort.” Id. at 147. Generally, to the extent appropriate in the circumstances, the assessment of costs as a sanction is deemed to be a more fitting response. Ibid.
We have been loath to sponsor the more severe sanction of dismissal because the demands of justice require adjudications on the merits to the greatest extent possible, see Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994); Yancsek v. Hull Corp., 204 N.J. Super. 429, 433 (App. Div. 1985); but see, State v. Slobiski, 100 N.J. Super. 590, 594 (App. Div. 1968), and because of concerns for the integrity of our statutory scheme governing the operation of motor vehicles. In Prickett, supra, for example, defendant was charged with DWI on December 8, 1988, and trial was set for April 6, 1989. 240 N.J. Super. at 141. For reasons not disclosed in the record, the trial was rescheduled for June 22, 1989, the notice stating “No Adjournments Will Be Allowed.” On the designated trial date, defendant, his attorney and expert witness appeared and answered the calendar call at 10:00 a.m. They waited through the disposition of other cases until 3:30 p.m., when they learned that the arresting police officer had, a month earlier, been excused from his subpoena obligations by the municipal court clerk. Id. at 142. The municipal court denied defendant’s motion to dismiss, and the Law Division affirmed. Ibid.
On appeal, we held that the Law Division had properly balanced the speedy trial factors, noting that defendant had made no showing of prejudice except loss of time and money for the appearances of his attorney and expert on the one aborted trial date. Id. at 143-44. We concluded, “[c]onsidering defendant is charged with driving while under the influence of alcohol, dismissal should not result here.” Id. at 147 (citing Administrative Office of the Courts Municipal Court Bulletin Letter #9/10-85, September/October 1985, for the proposition that “a municipal court judge should not automatically dismiss a drunk-driving complaint when the police officer fails to appear”). We remanded for a determination and imposition of appropriate costs against the State or municipality. Id. at 142-43, 148.
In State v. Detrick, 192 N.J. Super. 424 (App. Div. 1983), defendant was charged with DWI on November 25, 1981, and trial was set for December 14, 1981. Id. at 425. For reasons not apparent from the record, the proceedings were rescheduled for April 1, 1982. Ibid. On April 1, the State was unable to proceed because the arresting officer was on National Guard duty; the court continued the matter until July 12, 1982, at which point the municipal court heard testimony and found defendant guilty. Ibid. On de novo on the record appeal, the Law Division dismissed the complaint, citing State v. Potts, 185 N.J. Super. 607 (Law Div. 1982), as authority.
We reversed, noting that the length of the delay alone was not dispositive in determining whether defendant was denied his right to speedy trial. Detrick, supra, 192 N.J. Super. at 426. Further, while nearly eight months had elapsed between the issuance of the summons and the resolution of the matter at trial, not all of the time could be charged as “delay.” Rather, a significant portion of the time could be “reasonably explained and justified” by a transfer between municipal courts because defendant was a former public official in the charging municipality, and because of the unavoidable absence of the arresting officer. Ibid. Finally, as to the other Barker factors, defendant had made no showing of prejudice and had not asserted his right to speedy trial until the final trial date. Ibid.In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant’s motion to dismiss. Id. at 123-24.
On appeal, the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court’s sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that “[a] court’s promise is sacrosanct” and must be honored. Id. at 125. Accordingly, the municipal court’s denial of defendant’s motion to dismiss was evaluated as “an arbitrary, and therefore improper” exercise of discretion. Ibid. The municipal court’s promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State’s case could not justify the second adjournment. Ibid.
In considering how the foregoing principles and applications bear upon the case at hand we begin with some observations. First, notwithstanding the municipal prosecutor’s protestations to the contrary on at least two occasions, none of the delays in this matter were fairly chargeable to defendant. Only two instances are even remotely eligible for such treatment, and neither, on analysis, qualifies. The first was the postponement of trial scheduled for 11:00 a.m. on February 27, 1996, when defense counsel had not appeared by 11:15. The record discloses that defense counsel had telephoned ahead to report that he was detained by an older case elsewhere, and he appeared at 11:24. The municipal court judge’s statement on the record in adjourning the case so quickly, rather than carrying it and attending to other matters a little while longer, evinces too little flexibility in accommodating defense counsel’s announced scheduling conflict, and bespeaks a practice of using any disruption of schedule as an excuse for postponing the trial of the matter. Especially considering that this event occurred when the case was already 404 days old, the adjournment was intolerable. The second instance of delay not attributable to the court or the State arose from defense counsel’s responsibility, on October 1, 1996, to attend to an emergent matter in the Appellate Division. There is no way that can be considered an instance of delay chargeable to defendant.
Next, the remaining twelve postponements must be evaluated by the standard employed in Detrick, supra, 192 N.J. Super. at 426, i.e., whether they were “reasonably explained and justified.” By this measure, those that can be excused in evaluating defendant’s speedy trial entitlement are few and far between.
Only two of the seven adjournments chargeable to the State can be seen as “reasonably explained and justified”: those required when Trooper Mattia was unavailable because of an injury and when he was assigned to a special security detail. The others were based on the State’s unreadiness to proceed or its failure to discharge its discovery obligations in a timely manner.
And then there are the inordinate delays attributable to the municipal court itself. Even though Judge Booker had begun to try the case with arguments on defendant’s motions on July 14, 1995, fully 174 days after the summonses had issued, the matter was adjourned before it could be completed; and it was further postponed on three subsequent listings….after a series of extended continuances, including peremptory-type listings, see Perkins, supra, 219 N.J. Super. at 125….for it had been erroneously listed before other judges, who were required to defer to Judge Booker because he had already commenced the trial. Even after the testimonial phase of the matter began on November 27, 1995, when the case was 312 days old, it took another 351 days to complete. And once, on October 16, 1996, when the matter was already 635 days old, Judge Booker himself adjourned it because of other, undefined “administrative matters” that diverted his attention.
The numerous adjournments must be considered together with the extensive intervals between proceedings, a manifest responsibility of the municipal court. The first court proceeding was held on April 27, 1995, ninety-six days after the summonses were issued. This was followed by serial hiatuses until the testimonial phase of the trial began of: thirty-one days, forty-nine days, sixty-five days, forty-two days, and thirty-one days. After testimony commenced, there followed a series of further adjournments until trial resumed for its last two days for: ninety-two days, thirty-four days, ninety-nine days, sixty-three days, twenty days, fifteen days, and ten days. It seems fair to conclude that the municipal court was impelled by no adequate sense of urgency or responsibility to conclude the matter expeditiously.
As a general rule in applying the evaluative features of the four-part test of Barker in fundamental fairness terms, 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. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 (“A more neutral reason [than the State's delay of trial in order to hamper the defense] such as negligence or overcrowded courts should be weighed less heavily [against the State] but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”). See also Gallegan, supra, 117 N.J. at 351-58; Prickett, supra, 240 N.J. Super. at 144-47; Perkins, supra, 219 N.J. Super. at 124-27.
The delays here were excessive, far greater than those in Gallegan, Prickett, Detrick, and Perkins. Defendant continually invoked his right to speedy trial, at the outset and on eight ensuing occasions. Except for reasons bearing upon the State’s failure to discharge its discovery obligations in a timely fashion, as well as the State’s unreadiness to respond to defendant’s motions, defendant was, at all times, prepared to proceed; and, at appropriate times, he moved formally for dismissal on the ground that speedy trial principles had been violated. See State v. Smith, supra, 131 N.J. Super. at 363-64.
As for the prejudice to defendant, while it does not appear that the delay hampered his ability to defend the case on the merits, the number of adjournments undoubtedly caused defendant to incur counsel or expert witness fees and other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances, considerably more than occurred in Prickett, where a single aborted appearance by counsel and an expert witness on a “peremptory” trial date was deemed to be remediable by the assessment of costs against the State. 240 N.J. Super. at 147-48. Effects on the ability to defend and monetary costs to defendant are only some elements of recognizable prejudice, however. Even so, as we have already noted:
Although prejudice resulting from a delay is a factor mentioned by Barker to be considered in determining speedy trial claims, an affirmative showing thereof is not a necessary element in the proof of denial of the constitutional right to a speedy trial. In short, a violation of an accused’s right to a speedy trial can be proven even in the absence of a showing of prejudice.
Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra.
[Smith, supra, 131 N.J. Super. at 368 n. 2.]
In balancing and applying the four factors of Barker, we conclude that the delay in completing this case, far beyond what was reasonable, was plainly excessive; and that the reasons for the delay were the prosecution’s clear inattention to its responsibilities along with the municipal court’s patent failure to prepare itself to try the matter expediously and shepherd it to resolution efficiently. These shortcomings 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. Ibid. As a matter of logic and decency, given that the four factors of Barker call for a balancing of considerations, when the delay in concluding a trial is excessively long by any measure, as here, the burden upon defendant to satisfy the other factors is correspondingly diminished. When there is no reasonable explanation or justification for the excessive delay, speedy trial principles have been violated.
The failures of the process in this matter so far surpassed those previously described in the cases we have analyzed as to mandate a different result. We conclude that, here, 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.
Reversed.