NOT FOR PUBLICATION WITHOUT THE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-2760-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAN CALDWELL a/k/a RASHAUN
CALDWELL, CHRIS CALDWELL,
RASHAWN CALDWELL, RASHAN
HICKENBOTTOM, RASHAN
HICKENBOTTON,
Defendant-Appellant.
______________________________________
Submitted November 30, 2016 – Decided September 1, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 13-06-0797.
Joseph E. Krakora, Public Defender, attorney
for appellant (Al Glimis, Assistant Deputy
Public Defender, of counsel and on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Rashan Caldwell appeals from a December 9, 2014
judgment of conviction for first-degree possession of a controlled
dangerous substance (CDS) with intent to distribute, N.J.S.A.
2C:35-5(b)(1), and second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-4(a)(1), charged in counts thirty-two and sixty-
six, respectively, of Indictment No. 13-06-0797. Pre-indictment,
pursuant to Rule 3:25-3, defendant moved to dismiss the complaints
containing the charges that were later subsumed into Indictment
No. 13-06-0797 for unreasonable delay in presenting the charges
to a grand jury. After his motion was denied and Indictment No.
13-06-0797 was returned, defendant entered a negotiated guilty
plea on September 10, 2014, and expressly reserved the right to
appeal the denial of his speedy trial motion. In exchange, the
State agreed to move the dismissal of the remaining fifty-three
counts of the indictment,1 as well as the dismissal of a second
1
The dismissed counts consisted of first-degree leader of a
narcotics trafficking network, N.J.S.A. 2C:35-3; ten counts of
second-degree conspiracy to possess CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(2) and N.J.S.A. 2C:5-2; ten
counts of second-degree conspiracy to distribute CDS, N.J.S.A.
2C:35-5(a)(1) and -5(b)(2) and N.J.S.A. 2C:5-2; four counts of
third-degree conspiracy to possess CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) and N.J.S.A. 2C:5-2; two
counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1);
third-degree conspiracy to possess CDS, N.J.S.A. 2C:35-10(a)(1)
and N.J.S.A. 2C:5-2; second-degree possession of CDS with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2); first-degree
maintaining/operating a CDS production facility, N.J.S.A. 2C:35-
4; four counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(2); four counts of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); four
counts of second-degree certain persons not to possess a firearm,
2 A-2760-14T4
indictment, Indictment No. 10-10-1148 (the 2010 indictment),2 in
its entirety. The State also agreed to recommend an eleven-year
term of imprisonment with a five-year period of parole
ineligibility on count thirty-two, and a concurrent eight-year
term of imprisonment with a four-year period of parole
ineligibility on count sixty-six. On November 21, 2014, defendant
was sentenced in accordance with the plea agreement. On appeal,
defendant argues the trial court erred in denying his speedy trial
motion and urges dismissal of Indictment No. 13-06-0797. We
disagree and affirm.
N.J.S.A. 2C:39-7(b); three counts of second-degree possession of
a firearm while in the course of committing or conspiring to commit
a CDS offense, N.J.S.A. 2C:35-5 and 2C:39-4.1(a); two counts of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two
counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and
2C:11-3; third degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2); fourth-degree conspiracy to unlawfully
transport a firearm, N.J.S.A. 2C:39-9(d) and 2C:5-2; second-degree
conspiracy to witness tamper, N.J.S.A. 2C:28-5(a) and 2C:5-2; and
third-degree bail jumping, N.J.S.A. 2C:29-7.
2
Indictment No. 10-10-1148 charged defendant with third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1); third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and -5(b)(3); third-degree distribution of CDS, N.J.S.A.
2C:35-5(a)(1) and -5(b)(3); third-degree conspiracy to possess
CDS, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:5-2; third-degree
conspiracy to possess CDS with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and -5(b)(3) and N.J.S.A. 2C:5-2; and third-degree
conspiracy to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3)
and N.J.S.A. 2C:5-2.
3 A-2760-14T4
On November 4, 2010, the 2010 indictment was returned against
defendant and a co-defendant. Defendant was arrested, posted bail
and was released. On June 1, 2012, while the 2010 indictment was
pending, defendant was arrested and held on multiple warrant-
complaints charging him with over thirty-two offenses, including
first and second-degree drugs and weapons related offenses
stemming from allegations that defendant was the leader of a
narcotics trafficking network and was involved in the 2011
attempted murder of two people. Twenty-eight others were also
arrested and charged by way of complaint in connection with the
allegations. Defendant's bail was set at $1 million but defendant
was unable to post bail and remained incarcerated.
On March 11, 2013, defendant moved to dismiss the complaints
pursuant to Rule 3:25-3. Although defense counsel acknowledged
that he had received "a substantial amount of discovery" amounting
to "well over 2,000, maybe 3,000, pages" of pre-indictment
discovery including "thousands of hours of . . . tapes, many, many
wiretaps, many applications for a wiretap," in a case that
"promises to be an extremely complicated and lengthy case[,]" he
urged the judge to dismiss the complaints based on the unreasonable
delay in presenting the case to a grand jury.
On June 10, 2013, following oral argument, Judge Mary Gibbons
Whipple denied defendant's motion in an oral opinion. Applying
4 A-2760-14T4
the four-factor test enunciated in Barker v. Wingo, 407 U.S. 514,
92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the judge first
acknowledged that the delay was substantial and that defendant did
not contribute to the delay. The judge noted that "a year and
nine days passed between the . . . arrest" and the date the motion
was heard. However, the judge pointed out that "there are cases
where . . . a significantly longer period of time has not been
found to be in violation of defendant's right to a speedy trial"
and while "the delay here . . . tips slightly to the defendant's
favor[, it] is not determinative . . . [a]nd the other three
factors have to be considered."
Next, the judge considered the reason for the delay, noting
that "[d]elays 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." However, the
judge concluded that there were no "purposeful delays . . . on the
part of the State[.]" While the judge acknowledged that "[a]
defendant has no duty to bring himself to trial" and considered
the fact that defendant was incarcerated while the charges were
pending, "the court recognize[d] that this [was] a complex case"
and "[did] not think that the State ha[d] been sitting on their
hands." Rather, according to the judge, in light of the fact that
there were "[t]wenty-nine people . . . charged, all facing various
5 A-2760-14T4
degrees of . . . charges with . . . offers . . . extended in every
single case[,]" the State had "been trying to get the matter
resolved." The judge was satisfied that the State had "been
actively litigating the case" and pointed out that "[t]he
investigation has been ongoing."
Next, considering defendant's assertion of his right, the
judge found that, while "[t]here's no requirement that a defendant
demand to be indicted[,]" defendant did not contribute "to the
delay here" and this was not "a factor that [could] be used against
the defendant in any way." However, since the State did not use
purposeful delay tactics, the judge considered this a "neutral"
factor.
Finally, as to prejudice to defendant, the judge explained:
[T]his is the most important factor. . . .
[Defendant] is incarcerated, has been
incarcerated for over a year . . . and that
is not insignificant.
Under Barker, the courts were advised to
consider whether there was oppressive pre-
trial incarceration, anxiety and concern over
the outcome, and whether his ability to defend
was impaired.
Certainly, he has been in jail. Bail was
set. It was high bail. He has had the
assistance of counsel from the very beginning.
He has not suffered a loss of an opportunity
. . . to defend the case.
6 A-2760-14T4
[W]hile he's indicated that he has some
impairments on his ability to do legal
research, he has had the ability to review
evidence. And while it may not be the most
accessible library, he does have some
accessibility to the library at the jail. And
he does have an ongoing ability to consult
with his counsel. And I do not find that
. . . the prejudice in his case is
overwhelming.
The judge resolved:
[S]o in conclusion, . . . I do not think
that [defendant] [has] been able to prevail.
There's been no indication by [defendant] that
. . . [his] ability to proceed to defend the
case has been compromised by the loss of
witnesses, faded memories.
I know it's been suggested, but no one's
really . . . given me anything to . . . make
a finding with regard to that.
It is a complex case, which everyone
acknowledges. I also note for the record
that, as I previously indicated, . . . I don't
expect the delay past indictment to be
extensive. They're going to the [g]rand
[j]ury, I believe, this week to seek
indictments. And the case will be proceeding
on a faster track after that.
Approximately one month later, on July 2, 2013, Indictment
No. 13-06-0797 was returned charging defendant and fourteen others
in a seventy-seven count indictment. The indictment incorporated
the offenses previously contained in the complaints. On appeal,
defendant raises a single argument for our consideration:
7 A-2760-14T4
POINT I
THE TRIAL JUDGE ERRED IN DENYING [DEFENDANT'S]
MOTION FOR DISMISSAL PURSUANT TO R. 3:25-3
BECAUSE THERE WAS AN UNREASONABLE DELAY IN
PRESENTING THIS MATTER TO THE GRAND JURY.
Defendant argues that the thirteen months he remained in jail
between his arrest and indictment prejudiced his ability to prepare
a defense because, although he was represented by counsel, he was
"unable to fully investigate his case and file appropriate
motions[,]" and had "limited access" to the law library and
difficulty contacting "family members." In addition, defendant
argues that the judge erred in finding "that the State's delay in
moving the case was not purposeful" because "[t]he State had no
compelling reason to explain the unreasonable delay of one year."
We disagree and affirm substantially for the reasons set forth by
Judge Gibbons Whipple in her well-reasoned oral opinion. We add
only the following brief comments.
Rule 3:25-3 permits a defendant to seek dismissal of an
indictment, and further permits the court to do so sua sponte,
when "there is an unreasonable delay in presenting the charge to
a grand jury[.]" Determination of what is an "unreasonable" delay
rests upon "an ad hoc balancing test" that evaluates the
idiosyncratic facts of each case. State v. Szima, 70 N.J. 196,
8 A-2760-14T4
201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180
(1976).
In State v. Cahill, 213 N.J. 253, 258 (2013), the Court
reiterated "that the four-factor balancing analysis of [Barker,
supra], remains the governing standard to evaluate claims of a
denial of the federal and state constitutional right to a speedy
trial . . . ." Those four factors are: "length of the delay,
reason for the delay, assertion of the right by a defendant, and
prejudice to the defendant." Id. at 264 (citing Barker, supra,
407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117).
In certain cases, the length of the delay may cross the
threshold between ordinary and "presumptively prejudicial" and
trigger the need to engage in the balancing test. Barker, supra,
407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Such
an inquiry is "dependent upon the peculiar circumstances of the
case." Ibid. Thus, a longer delay may be tolerated where it is
the result of "the complexity of the subject matter of the case"
and not the prosecution's attempt to impair the defendant's right
to defend. State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div.
2002) (holding that a seventeen-month delay due to the complexity
of the case was not unreasonable); see also Barker, supra, 407
U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 (noting, for
example, that "the delay that can be tolerated for an ordinary
9 A-2760-14T4
street crime is considerably less than for a serious, complex
conspiracy charge").
With regard to the second factor, "different weights should
be assigned to different reasons" for the State's delay. Barker,
supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.
Deliberate delays intended to prejudice the defendant will weigh
heavily against the State. Ibid. Neutral delays, such as
scheduling, are considered against the State but carry less weight
than intentional delays. Ibid.
The third factor considers if and when the defendant asserted
his right to a speedy trial. A defendant is under no obligation
to do so, as it is the State's "responsibility to prosecute cases
in a timely fashion." Cahill, supra, 213 N.J. at 266 (citation
omitted). However, in assessing the prejudice to defendant caused
by the delay, the court may consider whether he asserted his right
because "[t]he defendant's assertion of his speedy trial right
. . . is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right." Barker,
supra, 407 U.S. at 531-32, 92 S. Ct. at 2192-93, 33 L. Ed. 2d at
117-18.
The fourth and final factor, "prejudice[,] was said to include
oppressive pretrial incarceration, anxiety and concern of the
accused and impairment of the defense. Of these, impairment of
10 A-2760-14T4
the defense was considered the most serious since it went to the
question of fundamental fairness." Szima, supra, 70 N.J. at 201.
"None of the Barker factors is determinative, and the absence
of one or some of the factors is not conclusive of the ultimate
determination of whether the right has been violated." Cahill,
supra, 213 N.J. at 267 (citation omitted). "[T]he factors are
interrelated, and each must be considered in light of the relevant
circumstances of each particular case." State v. Tsetsekas, 411
N.J. Super. 1, 10 (App. Div. 2009) (citation omitted). "[W]e
reverse only if the court's determination is clearly erroneous."
Ibid. (citation omitted).
Applying those principles, we discern no error in the judge's
decision. The obvious complexity of the case is manifest from a
perusal of the indictment itself. This fact, together with the
absence of actual prejudice to defendant, undercuts defendant's
argument on appeal.
Affirmed.
11 A-2760-14T4