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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27116
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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speedy trial nj municipal court

Customer Question

what do i need to win a law division reversal on sppedy trial ground in nj, stemming from a nj municipal court motor vehicle case?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Dwayne B. replied 6 years ago.
Speedy trial provisions are one of the most often asked about and least understood areas of the law. In order to trigger a "speedy trial" requirement a request for a speedy trial must be made and then not acted on. There are no specific rules as to when someone's speedy trial rights have been violated. There have been cases where as little as 4 months was sufficient and others where years were deemed to be okay. It usually keys on when the speedy trial right was requested, the reason for the delay, and the prejudice suffered due to the lack of a speedy trial.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.
Customer: replied 6 years ago.
not the rype of answer i was looking for. I am looking for a much more sophisticated answer about what i need. Intrestin. I know I need thousands of things ,,,,, i was hoping to get some things on here that are not a first year law student type answer. Matbe you can be more specific on som,e of the less obvious things I will need to take to the law division,..... I already have the basics down pat.
Expert:  Dwayne B. replied 6 years ago.
I'm not sure what you are asking for. To win a reversal you must present evidence as to when the speedy trial was requested, the delay before the trial, and the manner in whcih you were prejudiced. The burden then shifts to the state to prove that the delay was not unreasonable.

If you have a more specific question I'd be glad to answer it, but speedy trial cases are so fact sensitive that it is almost impossible to cover all angles on here.
Customer: replied 6 years ago.
Here are some facts..... I was arrested for a first offense dui in setember of 2005. On January 10, 2006 the NJ Supreme Court Ordered the prosecution to proceed to trial. Stopping right there, I do not see how it can be reasonable the prosecution and local court did not obey this order. I made 14 court appearances between Jan 10, 2006 and March 17, 2008, when the Order was vacated with the final decision in State V Chun. I have made 2 additional appearances- so, 16 appearances in 36 months. I thought the COURT ORDER was good enough to protect my rights,.....nevertheless i invoked my right to speedy trial in august 07, nov 07, and march 2008. I have been suffereing severe psycological distress because the ORDER was not obeyed, and have also suffered greatly by basically being held in NJ, and not being able to get on with my life. Some attorneys feel regardless of the speedy trial rights,. the local court can order me to appear every 8-10 for the course of my life, and never give me a trial, and there would be nothing i can do about it, because there is no recourse without a trial or even a hearing be allowed ever. The situation is this----- I have a 38 page motion to dismiss based on 6th amendment, nj constitution, nj 60 day rule, speedy trial/barker v wingo, the nj supreme court order, contempt of court, and obstruction of justice,.........I do not feel, after reading hundreds of appealate decisions, alll this is enough , i need more, is there anything else you can tell me that i could use,.......and how long can they get away with this?, do i have any recourse in this situation?
Customer: replied 6 years ago.

The following is what the NJ Law Division and Apellate Courts use to determine if Speedy Trial was violated--- this is from a current ruling, and is in every opinion written by the judges reviewing these cases. Only reversal I have found that held was Stae V Farrell, and that was a first offense dui, 13 appearances, 23 months.

 

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed.2d 1, 7-8 (1967). The test governing one's right to a speedy trial was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed.2d 101, 116-19 (1972), adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-02, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed.2d 180 (1976), and later reaffirmed in State v. Townsend, 186 N.J. 473, 487 (2006). This test applies to delays in municipal court prosecutions. See State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007); State v. Fulford, 349 N.J. Super. 183, 189 (App. Div. 2002); see also Pressler, Current N.J. Court Rules, comment on R. 7:8-5 (2008).

Expert:  Dwayne B. replied 6 years ago.
I agree that your case is unfair and that they were wrong. It is just nearly impossible to reverse a case based on a speedy trial violation, even when it is obvious.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27116
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 14 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.

i will accept that answer, but please answer this--------- should i file the contempt of court and obstruction of justice charges now, or wait til after i get a trial...........?......... and what if a i never get a trial? .......... i will be stuck here in nj for the rest of my life making court appearances every 8-10 weeks.......... if there any recourse i have in the nj justice sytstem to end this, other than pleading guilty?

Expert:  Dwayne B. replied 6 years ago.
I wouldn't file anything outside of the case right now.

The only thing I can think of to help you would be the Writ of Mandamus.
Customer: replied 6 years ago.

So I am basically screwed, having lost 3 years out of the middle of my life...... and winning the dui case will be the same odds as winning the speedy trial reversal,.... less than 0.1%,.. maybe less,..... every though there was no probable cause for the motor vehicle stop under the law......

so eventually, I should file the criminal charges against the judge and prosecutor --- for obstruction of justice and contempt of court,. ethics violation with the nj supreme court advisory committee, and a civil suit.

but you are saying do not do that until the case is over.........however, they know what i know, and assuming the feel i am getting advice not to file until the case is over, they may prolong the case til i die.

\i am going to look up this mandamus thing

Customer: replied 6 years ago.

OK, i looked up mandamus on wikipedia, and advised my attorney we need to do this if we do not get a trial next court appearance...... But even then, the court does not have to grant it,.... they can tell me to go to hell..... if that is at least a 50% possibility.

I would love to become an attorney, even now at age 42,... after all i have learned and my ability for meraning of words,.........however, experiencing and seeing what i have saw in the 3 years of my research, i feel i would be way too frustrated with the justice system,....... because the law means nothing within it,...........

 

you said "I agree that your case is unfair and that they were wrong" .......but it is what you didnt say that frustrats me,......you failed to say the law was violated against me,...... but it is clear it was, even more so than the dui they clain i did,.........and at least i am willing to go ahead with my charges against them, ....why arent threy willing to go ahead with their charges against me?

Expert:  Dwayne B. replied 6 years ago.
Unfortunately, the justice system is not always fair.

You are correct the court doesn't have to grant the mandamus and often don't. To get a mandamus it has to be a clear abuse of discretion on the judge's part.
Customer: replied 6 years ago.

what more clear abuse can theRE be in not following a direct ORDER FROM THE SUPREME COURT OF NEW JERSEY?

 

BELOW IS THE COURT ORDER

 

NJ SUPREME COURT ORDER OF JANUARY 1O, 2006


SUPREME COURT OF NEW JERSEY
September Term 2005
58,879


STATE OF NEW JERSEY,

Plaintiff-Appellant,


v. O R D E R


JANE H. CHUN, et al.,

Defendants-Respondents.


The Court having previously certified the within matter directly pursuant to Rule 2:12-1 and having contemporaneously appointed retired Appellate Division Presiding Judge Michael XXXXX XXXXX as Special Master,
And the Court having remanded the matter to Judge King to develop a record, conduct hearings, and report his findings and conclusions on an accelerated basis,
And the Court having concluded that it should expand on its prior Order by addressing issues that affect the prosecution of N.J.S.A. 39:4-50 offenses statewide,
And good cause appearing;
IT IS ORDERED that this Order shall apply to all N.J.S.A. 39:4-50 prosecutions in Municipal Courts and appeals in the Law Division and Appellate Division of Superior Court; and it is further
ORDERED that N.J.S.A. 39:4-50 prosecutions and appeals that do not involve the use of an Alcotest device are to proceed in the normal course; and it is further
ORDERED that the prosecution and appeal of cases involving repeat offenders under the statute shall proceed in the normal course, and sentences imposed on such defendants shall not be stayed unless the conviction is based solely on Alcotest device readings; and it is further
ORDERED that first offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as the relevant Alcotest readings; and it is further
ORDERED that at the conclusion of each such first offender trial, if the court determines that the defendant is guilty of an N.J.S.A. 39:4-50 offense, it shall include, whenever applicable, an articulation of the alternative bases for that finding when imposing a sentence pursuant to the statute, see State v. Sisti, 209 N.J.Super. 148, 151 (App.Div. 1986), State v. Kashi, 360 N.J.Super. 538, 544 (App.Div. 2003); and it is further
ORDERED that the execution of sentences imposed on first offenders shall be stayed pending disposition of the within appeal unless the court determines, after considering the severity of the incident and the prior record of the defendant, that the public interest requires the immediate execution of the sentence; and it is further
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; and it is further
ORDERED that any and all orders of municipal courts and the Superior Court, including but not limited to the December 12, 2005, orders of Judge Walter R. Barisonek, A.J.S.C., (State v. Casey L. Grogan) and Judge B. Theodore Bozonelis, A.J.S.C. (State v. Michael Dilger, et al.) are vacated to the extent that they conflict with this Court's Order of December 14, 2005, as modified and supplemented by the within Order; and it is further
ORDERED that consistent with the Court's prior reminder in its December 14, 2005, Order that
all Superior Court and Municipal Court judges before whom N.J.S.A. 39:4-50 proceedings are pending, or before whom such proceedings are brought during the pendency of this appeal, must ensure that the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey are strictly enforced,

a defendant who challenges the use of Alcotest-related evidence may enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court result in a determination that the Alcotest devices are not reliable; and it is further
ORDERED that the Acting Administrative Director of the Courts shall circulate this Order forthwith to all judges of the municipal courts and the Superior Court, Law Division and Appellate Division.

WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 10th day of January, 2006.

/s/ Stephen W. Townsend
Clerk of the Supreme Court

CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in the Court's Order.

Customer: replied 6 years ago.
MY RIGHTS WERE VIOLATED BECAUSE my rights in conjunction with this order, were never executed by the local judge and prosecutor. This Order stood as is from jan 10, 2006 to march 17, 2008,........my case started when i was arrested in sept of 2005, and is ongoing to this day, without the trial, or even a miranda hearing requested on oct 3, 2005. For whatever reason, logistical, personal beliefs, .... it doesnt matter, i never was afforded my rights under this COURT ORDER! and i have to believe it was due to personal beliefs by the local judge and prosecutor, because they proceeded to trial in no 39 4 50 prosecution, 1st, 2nd,, 3rd offense, or higher, where the alcotest was involved. holding up 92 cases in nearly 3 years, as told by the court administrator to the newspaper , the star ledger, which since remover the article from its website because i wrote the paper asking them to hold all; correspondance in case of a civil suit to be brought against the judge and prosecutor. in other words, many overt acts were committed in the obstruction of justice by both the judge and prosecutor,... even if they requested the article with quotes to be remo9ved, it was an overt act in the consipracy
Customer: replied 6 years ago.

take m y word for this, i have researched this everyday for nearly 3 years....... all nj attorneys, law sites , everything available to me from a internet connection..... this was the ORDER, AND ALTHOUGH ONE OF THE 4 DEFENSE ATTORNEYS IN STATE V CHUN CHALLANGED IT, THAT CHALLANGE WAS NOT WON, THE ORDER aalways stood, from jan 10, 2006 to match 17, 2008, .... and even we can see it in appealate decisions during this time which referenced it by people claiming they deserved a stay on sentencing, even 2nd or 3rd offenders,.... in which the courts ruled correctly, they do not, under the ORDER. now, as the appealate courts have ruled many times during the life of the order, the order stands, how can they rule it wouldnt stand in my case? .... they cant DO THIS AND NOT HAVE EGG ON THEIR FACE...and quite frankly, why wouldnt the prosecutor and court just have followed the order and trialed m y case? ordering my to appear 14 times during the life of the order. all the while, no probable cause , and i cant get a miranda hearing

 

Expert:  Dwayne B. replied 6 years ago.
I certainly wish you the best. it is unfortunate that the court system doesn't work the way it should.
Customer: replied 6 years ago.

wishing me the best really does me no good, i need an attorney that is going to bring this all out and fight like hell for the rights of all us citizens in regards XXXXX XXXXX supreme court orders, that need tio be follwed and obeyed whether we agree with them or not.

 

why dont you fly up here from texas, and take my case pro bono, and argue the law......why wont anyone ARGUE THE LAW, LET ALONE YOU, NO ONE IS DOING IT, AND IT ISNT RIGHT, ESPECIALLY , AND MOST IMPORTANTLY, THE NJ SUPREME COURT ORDERED MY RIGHTS TO BE EXECUTED, YOU RIGHTS, EVERYONES RIGHTS,......... ALL OF OUR RIGHTS ARE BEING VIOLATED

Customer: replied 6 years ago.

if i was an attorney, i would fight like hell, win or lose in every case, for the law to be followed,.... every statute to the letter, like scelia would, every court rulew, every court order, every case law argument,........ everything, ..... and my record would indicate i am for the law,......... and because this is what i would do, i expect all attorneys to do this,..... the law is a wonderful thing, to be cherished,...... to many peoplew have given their lives for it, .. for the right of every citizen to have a state supreme court,.... and for the orders from that cxourt be followed and upheld,........

 

i have say here for nearly 3 years, on a 24/7 basis, saying to myself the quote from the order " proceed to trial" and in front of a jury, with my over 6000 pages of time stamp date writtings, i dam well can prove it.

Customer: replied 6 years ago.
CAN THERE BE ANY REAL LEGITIMAT REASON AT ALL FOR THE LOCAL JUDGE AND PROSECUTOR TO NOT HAVE AFFORDED ME IN TRIAL IN 3 YEARS AND 16 APPEARANCES? THINK ABOUT IT, ... NJ MUNICIPAL COURT GOT(NNN) NNN-NNNNCASES A WEEK RUNNING THROUGH EACH OF 500 PLUS MUNICIPALITIES......,.....WHY AM I BEING TREATED LIOKE I WAS A PRISONER IN GUTMIMO BAY CUBA? I REALLY WANT ANSWERS
Expert:  Dwayne B. replied 6 years ago.
I can't think of any reason they wouldn't have provided you a trial but that is really a question for your lawyer. There may be a perfectly valid reason, although that seems unlikely.
Customer: replied 6 years ago.

What valid reason could there have been? To call me into court 16 times over 3 years. The State's prosecutor had the burden to proceed to trial, not the defense. The order was directed at the court and state, not at the defense. It was their reesponsibility to execute the court order, no matter what, to protect everyone's rights.

Customer: replied 6 years ago.

I asked the Judge in Nov of 07 why I havnt had a trial yet, and the judge said she has no idea why. Then I said the NJ Supreme Court Order of Jan 10, 2006 ordered the prosecution to proceed to trial, and the judge said nothing to that.......

Then in March of 2008 the JUdge said e"veryone has to wait, so do you". I have talked to hundred attorneysa cross the State, asnd most agree with me, and even have been trialing the cases in other municipal courts. The fact is , even without the court order I should have been trialed within 60 days of arrest,... but with the court order, there can no no excuse at all,......... It is contempt of court and obstruction of justice to not have obeyed that order,........I have made every court appearance, with attorney, on timer, in a good manner, and every time after 3-4 hours, I have been sent home - 16 appearances nd 3 years! I am not a trerrorist or a criminal,......I am just an ordinary law abiding citizen who deserved to have been treated better by government!

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