DE LA CARRERA TOOK 3 YEARS TO DECIDE A MOTION TO CHANGE VENUE!!! HE VIOLATED DEFENDANTS RIGHT TO SPEEDY TRIAL - HE THEN CLAIMS THAT THE DEFENDANT NEVER ASKED FOR SPEEDY TRIAL!!

ADVISORY COMMITTEE ON JUDICIAL CONDUCT REFERS LAZY JUDGE MIGUEL DE LA CARRERA TO ASSIGNMENT JUDGE ERNEST CAPOSELA, PURSUANT TO RULE 2:15-25.  

DE LA CARRERA TOOK 3 YEARS TO DECIDE A MOTION TO CHANGE VENUE!!!

HE VIOLATED DEFENDANTS RIGHT TO SPEEDY TRIAL -  HE THEN CLAIMS THAT THE DEFENDANT NEVER ASKED FOR SPEEDY TRIAL!! WHAT AN INCOMPETENT JUDGE!  

THE DEFENDANT DOES NOT HAVE TO ASK FOR SPEEDY TRIAL, YOU IDIOT JUDGE. JUST READ THE LAW!

THE INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE FOUR (4) PLUS YEAR CASE DELAY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO A SPEEDY TRIAL CAUSING HIM SEVERE ECONOMIC AND NON-ECONOMIC HARDSHIP, LOSS OF EMPLOYMENT AND PROFESSIONAL LICENSES, AND OTHER HARDSHIPS.  BARKER V. WINGO, 407 U.S. 514, 530, 92 S. CT. 2182, 2192, 33 L. ED. 101, 117 (1972), STATE V. CAHILL, 213 N.J. 253 (2013), STATE V. JONATHAN E. DOWNS, DOCKET NO. A-0, N.J. SUPERIOR COURT, APPELLATE DIVISION, FEBRUARY 14, 2014

A defendant has a right to a speedy trial.  U.S. Const., amend.VI; N.J. Const. art. I, ¶ 10.   New Jersey has adopted the four-prong test set forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether a defendant’s right to a speedy trial has been violated. See State v. Szima, 70 N.J. 196, 200-01 (1976).

Courts should assess “four non-exclusive factors” to determine if a defendant’s constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).  The four factors in Barker are (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right; and (4) prejudice to the defendant. See Cahill, supra, 213 N.J. at 270. Due to the lack of a specified time period, courts must engage in a balancing process, subject to the specific facts and circumstances of each case.

“There is no set length of time that fixes the point at which delay is excessive.” State v. Tsetsekas, 411 N.J. Super. at 12.  In Cahill, the Court instructed that a gauge to a “presumptively prejudicial” delay is “the amount of time customarily required to dispose of similar charges.”  State v. Cahill, 213 N.J. at 265.

 The Cahill Court referred to New Jersey Supreme Court Chief Justice Wilentz’s July 26, 1984 Directive #1-84 instructing that DWI charges be disposed of in 60 days. Id. at 269. The Court called the 60-day period a goal, not a “bright line rule.” Id. at 270.  However, the Court said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at 274. The Court further noted that a case that “approaches one year” is “presumptively prejudicial.” Id. at 265.  In Cahill, the Court called the 16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas, the Court found that 344 days, “more than five times the stated [Supreme Court] objective” … weighted heavily for the defense. State v. Tsetsekas, 411 N.J. Super. at 11.

In 2014, the New Jersey Joint Committee on Criminal Justice recommended that the Legislature enact a speedy trial act that sets forth time frames in which defendants must be indicted and brought to trial. If the defendant has been released pretrial, the complaint against that person would be dismissed without prejudice to it being refiled at a later time. After indictment, if a case is not tried within 180 days, an incarcerated defendant would be released. The indictment would be dismissed with prejudice after 365 days if the defendant is not in custody.  Source: Report of the Joint Committee on Criminal Justice, March 10, 2014.  Here, there is a more than 1,500 days delay since the indictment in September 2011.  Thus, the case must be dismissed with prejudice.

The Defendant first asserted his right to speedy trial before Judge Filko and Judge Reddin in 2012.  At the time, the defense lawyers indicated to the courts that they should not enforce the Defendant’s right to speedy trial.  In any event, a defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial. Id. at 266. Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.

A mere presence of court backlog or overcrowded case load is insufficient to justify delay by prosecution. United States v. Goeltz, 513 F. 2d 193, 197, (10th cir. 1975).  Here, this Court took almost 3 years to decide a Motion to Change Venue, instead of deciding it within 30 days or less.  These delays cannot possibly be attributed to the Defendant.  To the extent that the Defendant's counsel waived time or requested continuances, this would not be attributed to Defendant, due to counsel's actions contradicting the best interest of Defendant.  Regardless of Defendant being bound by counsel's actions, defense continuances don't excuse lengthy delays in the disposition of a case. United States v. Lam, 251 F. 3d 852 (9th Cir. 2001).

The court instructed in State v. Farrell, “prejudice to a defendant resulting from delay is no longer confined to inability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution and the like.” State v. Farrell, 320 N.J. Super. at 452.

Likewise, the Court in Tsetsakas recognized that “significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances. State v. Tsetsekas, 411 N.J. Super. at 13.

Here, defendant has suffered very significant losses of employment, as employers performed background checks and refused to hire defendant, even after they made employment offers.  In addition, defendant lost several professional licenses due to the outstanding charges, leading to further economic losses.  Defendant also has not been able to obtain state licenses (including the Licensed Site Remediation Professional license) to do professional work because of the pending, unresolved charges.  Several New Jersey licensing boards even denied defendant the application to sit for exams, causing defendant to lose very significant business and/or employment opportunities.  The net result of these prolonged delays is potentially multi-million dollars in economic damages.

As a professional expert engineer, defendant has also suffered irreparable reputation loss that essentially destroyed his career that he worked many decades to build. 

ORDER TO DISMISS

Having found that the State failed to bring the instant case to conclusion of trial within the time allowed by law and Judicial Rules, this Court acknowledges that the State denied Defendant's right to a speedy trial.  This Court therefore now orders the immediate dismissal with prejudice of all charges in the instant case against the Defendant, the immediate discharge and liberation of the Defendant from bail, the return of all of Defendant's property, the immediate repair at State’s expense of all damage done to Defendant and Defendant's property during or consequent to the arrest and incarceration, immediate payment by the Plaintiff of all storage, impound, and other fees for Defendant's business instruments and other property encumbered as a consequence of Defendant's arrest, the transportation of Defendant by Defendant's choice of public or private automobile, or other public conveyance to Defendant's dwelling place at State’s sole expense, the immediate writing and hand delivery to Defendant of a  formal apology by the prosecutor in the instant case for violating Defendant's Constitutionally guaranteed right to a speedy trial, for which let execution issue forthwith.

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Judge Miguel De la Carrera                                        Date Ordered