STATE OF NEW JERSEY VS. LINO R. QUIZPHI-PATINO (2013-026, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2174-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LINO R. QUIZPHI-PATINO,

Defendant-Appellant.
_____________________________

Argued September 18, 2017 – Decided October 19, 2017

Before Judges Messano, Accurso and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Municipal
Appeal No. 2013-026.

Luke C. Kurzawa argued the cause for appellant
(Reisig & Associates, LLC, attorneys; Mr.
Kurzawa, on the brief).

Michael J. Mennuti, Assistant Prosecutor,
argued the cause for respondent (Angelo J.
Onofri, Mercer County Prosecutor, attorney;
Mr. Mennuti, on the brief).

PER CURIAM

Defendant Lino R. Quizphi-Patino appeals from a Law Division

order entered after a de novo hearing on the record before the
West Windsor municipal court denying his motion to dismiss motor

vehicle summonses on grounds he was denied his right to a speedy

trial. We affirm.

I.

On February 5, 2012, defendant was arrested and charged with

driving while intoxicated (DWI), N.J.S.A. 39:4-50, failure to

maintain in the driver's lane, N.J.S.A. 39:4-88, and reckless

driving, N.J.S.A. 39:4-96. At his first appearance on February

29, 2012, the municipal court judge ordered the State to supply

defendant with the data download history for the Alcotest device

used to obtain defendant's chemical breath test results, which

supported the DWI charge.1

The State provided discovery to defendant that included a

certificate from Dori L. Mansur Ratka, an attorney for Draeger

Safety Diagnostics, Inc., the Alcotest's manufacturer. The

certificate generally explained Draeger's putative repair records

for the Alcotest device.

Defendant's counsel issued a subpoena ad testificandum

compelling Ratka's testimony before the municipal court. On April

1
The chemical breath test yielded a blood alcohol content reading
of .26.

2 A-2174-15T4
2, 2012, Draeger filed a motion to quash the Ratka subpoena.2 On

May 2, 2012, the court adjourned defendant's matter with his

counsel's consent to May 8, 2012.

On May 8, 2012, the court heard argument and denied Draeger's

motion to quash the Ratka subpoena3 and ordered that Ratka appear

to testify. Draeger's counsel advised the court that Draeger

might seek leave to file an interlocutory appeal. The court ruled

that if a motion for leave to file an interlocutory appeal was

filed, defendant's matter would be stayed pending outcome of the

motion.4

In May 2012, Draeger filed a motion in the Law Division for

leave to appeal, a stay of the municipal court's order, and to

designate Draeger's counsel as the acting prosecutor for purposes

of pursuing the appeal. Eleven months later, and after hearing

2
We have not been provided with the motion papers and accept
defendant's counsel's undisputed representation that the motion
was filed on April 2, 2012. The record does not make clear whether
Draeger moved to quash a subpoena issued in defendant's case, the
case of another of defendant's counsel's clients, or in two other
cases involving other defendants. The distinction is immaterial,
however, because the municipal court subsequently addressed the
motion in all four matters in a single proceeding on May 8, 2012.
3
In the May 8, 2012 proceeding, the court denied the motion to
quash the subpoena in the two matters defendant's counsel had
pending before the court and in two other matters pending before
the court where the same subpoena had been served.
4
The court's stay of the municipal court proceeding applied to
the four cases that the court jointly considered on May 8, 2012.

3 A-2174-15T4
oral argument on two occasions, the Law Division issued an April

26, 2013 order denying Draeger's motion and remanding the matter

to the municipal court.

Following the remand, on May 15, 2013, a different municipal

court judge ruled that Ratka must testify in a single proceeding

in the four cases in which the court denied Draeger's motion to

quash. At the May 15, 2013 proceeding, defendant's counsel advised

for the first time that he intended to invoke defendant's right

to a speedy trial. Defendant's counsel then served the court with

a May 15, 2013 letter "invoking [defendant's] constitutional right

to a speedy trial."

The next court proceeding occurred on June 12, 2013, but

Ratka did not appear as ordered. Instead, Draeger's attorney

appeared and argued that Ratka was not required to appear because

she had never been properly served with the subpoena. Noting that

the identical argument was rejected when the court denied Draeger's

motion to quash, the court rejected the contention. Defendant's

counsel requested sanctions against Draeger's counsel and Ratka

based on her failure to appear. The court requested additional

written submissions on defendant's request for sanctions.

During the June 12, 2012 proceeding, the State requested that

the court set a trial date for defendant's matter. Defendant's

counsel objected, arguing he was not prepared for trial because

4 A-2174-15T4
he intended to file a speedy trial motion and had an outstanding

motion to compel production of Alcotest repair records. The court

did not set a trial date, and defendant subsequently filed a motion

to dismiss the summonses on speedy trial grounds.

Two months later on August 7, 2013, Ratka appeared and

testified in a proceeding jointly conducted in defendant's matter,

another case defendant's counsel had pending, and two other cases

involving separate defendants represented by other counsel. At

the conclusion of Ratka's testimony, the judge asked defendant's

counsel if he wanted to argue defendant's speedy trial motion.

Because it was very late in the evening, it was agreed that counsel

would return on another date to argue the motion. The court

suggested the dates of August 14, 21 and 28, but defendant's

counsel could not determine if he was available on those dates

because his office was closed. He stated he would advise the

court the following day as to his availability.

The court heard argument on defendant's speedy trial motion

on September 11, 2013. In a detailed oral opinion detailing the

history of the matter and the reasons for the delays, and applying

the principles set forth in Barker v. Wingo, 407 U.S. 514, 515,

92 S. Ct. 2182, 33 L.Ed. 2d 101 (1972), the court denied the

motion. In a proceeding on September 25, 2013, the court heard

5 A-2174-15T4
argument on defendant's motion to compel additional discovery, and

also denied the motion.

On October 9, 2013, defendant's counsel appeared before the

court for a scheduling conference and the trial was scheduled for

November 20, 2013. Defendant appeared on that date and entered a

conditional plea of guilty to DWI, with the agreement that the

State would dismiss the other summonses. Defendant's plea was

conditioned on his right to appeal the court's denial of his speedy

trial motion.5

Defendant provided a factual basis for his plea to DWI, and

the court accepted his plea and sentenced defendant as a third-

time offender to 180 days of incarceration of which ninety days

could be served in an inpatient program, a ten-year loss of

license, attendance at the intoxicated driver resource center,

installation of an ignition interlock device, and the appropriate

fines and penalties. The judge stayed the imposition of

defendant's jail sentence. Defendant filed an appeal of the

court's denial of his speedy trial motion with the Law Division.

5
Defendant's plea was also conditioned on his right to appeal the
court's denial of his motion to compel discovery and a motion for
recusal of the municipal court judge. The court's denials of
those motions are not challenged on appeal.

6 A-2174-15T4
 The record shows the Law Division hearing was scheduled for

"late May" 2014, but was adjourned at defendant's request until

August 20, 2014. At the commencement of the proceeding, the court

noted that defendant was not present. Defendant's counsel

acknowledged the matter had been adjourned from its original date

at defendant's request, and said his office sent defendant a

"written notice . . . to appear . . . before" the court on August

20, 2014. Counsel further advised that since sending the written

notice, his office unsuccessfully tried to reach defendant

telephonically.

Counsel asserted that during the municipal court proceedings

defendant had "never failed to appear" and he could not make any

representation as to why defendant was not present. Counsel

stated, however, that he was uncomfortable proceeding in

defendant's absence and did not wish to proceed without defendant

being "aware of what arguments were made on his behalf."

The judge reasoned that because defendant requested the

original adjournment and was provided with written notice by

counsel directing that he appear before the Law Division on August

20, 2014, defendant made a voluntary decision not to be present.

The court further noted that disposition of the motion did not

require any testimony from any witnesses, including defendant,

because the court was conducting a de novo review of the municipal

7 A-2174-15T4
court's denial of the speedy trial motion. The court determined

the matter would proceed as scheduled.

During oral argument, defendant's counsel requested an

opportunity to address in a "subsequent argument" the effect of

the eleven-month delay in the municipal court proceedings

resulting from the pendency of Draeger's motion for leave to file

an interlocutory appeal with the Law Division. The court granted

defendant's request, and offered defendant's counsel an

opportunity to file an additional written submission. The court

further stated that when the additional written submission was

made, the court would schedule "another hearing date and we'll

take it from there."

Defendant's counsel did not make any further written

submission to the court, and no further hearing was held. In a

written opinion, the court traced the procedural history of the

case, applied the Barker speedy trial standards, and denied

defendant's motion to dismiss the summonses on speedy trial

grounds. The court entered an order and remanded the matter to

the municipal court. On January 13, 2016, the municipal court

entered an order directing that defendant commence serving his

jail sentence. This appeal followed.

On appeal, defendant makes the following two arguments:

POINT I

8 A-2174-15T4
 THE DEFENDANT'S CONVICTION AFTER TRIAL DE NOVO
IN THE MERCER COUNTY SUPERIOR COURT SHOULD BE
VACATED DUE TO THE FACT THAT THE DEFENDANT WAS
NOT PRESENT FOR HIS TRIAL DE NOVO PROCEEDINGS
AND WAS NEVER ADVISED THAT THE TRIAL DE NOVO
WOULD PROCEED WITHOUT HIM. (Not Raised Below).

POINT II

THE WITHIN MATTER SHOULD HAVE BEEN DISMISSED
BY THE LAW DIVISION PREDICATED UPON THE
DEPRIVATION OF THE DEFENDANT'S RIGHT TO A
SPEEDY TRIAL PROVIDED FOR IN THE CONSTITUTIONS
OF THE UNITED STATES AND THE STATE OF NEW
JERSEY.

II.

We first address defendant's contention that the order

denying his motion to dismiss on speedy trial grounds should be

vacated because he was not present during the de novo proceeding

in the Law Division. The State does not dispute that defendant

had the right to be present at the Law Division proceeding, but

contends defendant impliedly waived his right to be present by his

unexplained absence.

It is well settled that the United States and New Jersey

Constitutions guarantee a defendant's right to be present for

every stage of a trial. State v. Luna, 193 N.J. 202, 209 (2007)

(citations omitted). A defendant's "right to be present at trial

is protected by the Sixth Amendment to the United States

Constitution as applied to the states through the Fourteenth

9 A-2174-15T4
Amendment, and by Article I, paragraph 10 of the New Jersey

Constitution[,]" and "[i]n some circumstances that do not involve

the confronting of witnesses or evidence against a defendant, the

right is protected by the due process clauses of the Fifth and

Fourteenth Amendments." State v. Dellisanti, 203 N.J. 444, 453

(2010) (citations omitted). "The right is so vital to the proper

and fair functioning of the criminal justice system that it is

protected by" Rule 3:16(b). Id. at 454.

A defendant may voluntarily waive the right to appear at a

trial proceeding. R. 3:16(b); State v. Hudson, 119 N.J. 165, 182

(1990). But a finding that a defendant voluntarily waived the

right to appear must be supported by evidence the defendant was

actually informed of the trial date and unjustifiably failed to

appear. State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995),

certif. denied, 145 N.J. 376 (1996). A determination that a

defendant voluntarily waived the right to be present for a trial

proceeding cannot be based solely on a failure to appear; the

"judge should attempt to learn where the defendant is and why [the

defendant] is absent and make appropriate findings." Ibid.

Here, it appears defendant was advised of the original May

2014 de novo hearing date before the Law Division, but that date

was adjourned to August 20, 2014. Although defense counsel advised

the court that his office sent defendant a letter about the new

10 A-2174-15T4
date, the letter was not presented to the court and the court

could not determine if it provided defendant with adequate notice

of the new hearing date. Moreover, there was no information or

evidence concerning the reason for defendant's absence. See ibid.

(finding decision that the defendant voluntarily waived his right

to appear required consideration of "why" a defendant is absent).

The record therefore does not support the court's finding that

defendant voluntarily waived his right to appear at the de novo

hearing.

A defendant's absence from a trial proceeding does not,

however, require a reversal of a conviction or a court's decision.

Dellisanti, supra, 203 N.J. at 457-59. Where, as here, it is

claimed the court erred by conducting a proceeding outside of

defendant's presence, we examine the record to determine if the

defendant suffered any prejudice. Id. at 458. Our Supreme Court

has "examined whether the absence was prejudicial to the

defendant's right to participate in the evidential proceedings and

confront the witnesses and evidence against him or to his ability

to assist with his own defense." Id. at 458-59; State v. A.R.,

213 N.J. 542, 557-58 (2013). "When the absence deprives a

defendant of confrontation rights, prejudice can be readily

assessed; when confrontational interests are not in play and

participation in one's defense is the issue, prejudice is more

11 A-2174-15T4
critically examined." Id. at 459; see A.R., supra, 213 N.J. at

558.

Defendant's absence from the de novo hearing did not prejudice

his confrontation rights. The judge determined the speedy trial

motion based solely on the written record presented to the

municipal court, and defendant does not contend there was a basis

on which the record could have been supplemented. See State v.

Taimanglo, 403 N.J. Super. 112, 122 (App. Div. 2008) (rejecting

the defendant's claim that his absence from a trial de novo on a

municipal court record required reversal, in part, because

defendant offered no basis to supplement the record), certif.

denied, 197 N.J. 477 (2009). There were no witnesses or evidence

presented to the Law Division judge, and defendant's confrontation

rights were not prejudiced by his absence. Compare State v. Byrd,

198 N.J. 319, 356-57 (2009) (finding defendant's confrontation

rights violated by the court's questioning of State's witness

outside of the defendant's presence). Defendant offers no argument

to the contrary.

Defendant argues his absence from the de novo hearing affected

his ability to participate in his defense. We are not persuaded.

Again, the de novo hearing was based solely on the record before

the municipal court and the briefs submitted by counsel, and the

court was required to decide a purely legal issue as to whether

12 A-2174-15T4
defendant's speedy trial rights were violated. See State v.

Morton, 155 N.J. 383, 445 (1998) (finding defendant's absence from

argument on pretrial motions did not prejudice his right to assist

counsel in his defense because the motions centered only on

questions of law), cert. denied, 532 U.S. 931, 121 S. Ct. 1380,

149 L. Ed. 2d 306 (2001).

Defendant fails to demonstrate he suffered any prejudice as

a result of his absence from the de novo hearing, and our review

of the record does not reveal any prejudice. Therefore, we reject

defendant's contention that we should vacate the Law Division's

order denying his motion to dismiss based on speedy trial grounds

because he was not present at the de novo hearing. See Dellisanti,

supra, 203 N.J. at 462; A.R., supra, 213 N.J. at 559.

Defendant next argues that the court erred by denying his

motion to dismiss the summonses based on speedy trial grounds.

The right to a speedy trial extends to quasi-criminal matters

pending in municipal courts. State v. Cahill, 213 N.J. 253, 267

(2013). The question whether defendant's constitutional right to

a speedy trial was violated presents a legal issue that is subject

to de novo review. See State v. Handy, 206 N.J. 39, 44-45 (2011).

Our Supreme Court has adopted the balancing test governing

the evaluation of claims of speedy trial violation established in

Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d

13 A-2174-15T4
at 117. Cahill, supra, 213 N.J. at 267. The Barker standard

requires an assessment of four factors: (1) the length of the

delay, (2) the reason for the delay, (3) the defendant's assertion

of his right, and (4) prejudice to the defendant. Barker, supra,

407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Under

the Barker standard none of the factors are "a necessary or

sufficient condition to the finding of a deprivation of the right

of speedy trial." Ibid. Rather, they are related factors that

must be considered together with such other circumstances as may

be relevant. Id. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.

The analysis is highly fact sensitive and requires "a case-by-case

analysis rather than a bright-line time limitation." Cahill,

supra, 213 N.J. at 270.

Defendant limits his speedy trial argument to the contention

that the 437-day delay between the April 2, 2012 filing of

Draeger's motion to quash the Ratka subpoena and the June 12, 2013

filing of defendant's speedy trial motion requires dismissal of

the summonses under the Barker standard.6 "The inquiry is" whether

6
In his brief, defendant states that he "is not asking the [c]ourt
to consider the entire age[] of [d]efendant's matter in the context
of the . . . [m]otion to [d]ismiss." Instead, defendant asked the
"[c]ourt to consider the delay that [he] experienced between April
2, 2012, . . . [and] June 12, 2013," the day he filed his speedy
trial motion. Defendant does not claim that the delay from the
date of his arrest, February 5, 2012, to the October 9, 2013

14 A-2174-15T4
the length of the delay "is reasonable or whether it violated

defendant's right to a speedy trial." Id. at 272-73. Depending

on the circumstances, the length of the delay may be presumptively

prejudicial and such a delay will trigger consideration of the

other factors, including the nature of the charges against the

defendant. Id. at 264. Typically, once the delay exceeds one

year, it is appropriate to engage in the analysis of the remaining

Barker factors. Cahill, supra, 213 N.J. at 266. However, there

is no bright-line test requiring dismissal after a specified period

of delay. Id. at 270.

Here, the 437-day delay about which defendant complains

exceeds one year. That period includes the thirty-seven days

between the April 2, 2012 filing of Draeger's motion to quash and

the May 8, 2012 municipal court hearing on the motion. We find

nothing unreasonable about the short period between the motion's

filing date and the court's disposition of the motion.

The 437-day delay also includes the forty-seven days between

the Law Division's April 26, 2013 order denying leave to appeal

setting of his trial date requires dismissal of the summonses on
speedy trial grounds. Thus, we consider only the 437-day period
upon which defendant relies in our determination as to whether his
trial rights were violated. Any claim that his speedy trial rights
were violated because delays before or after the 437-day period
is waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525
n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103
(App. Div. 2001).

15 A-2174-15T4
and the June 12, 2013 filing of defendant's speedy trial motion.

This delay was exclusively within defendant's control and we are

therefore convinced it does not support a claim of unreasonable

delay.

The remaining 353 days of the delay began with the April 2,

2012 filing of Draeger's motion to quash the subpoena. Following

the filing of the motion, the municipal court promptly heard

argument, denied the motion and ordered that Ratka appear.

Draeger's motion for leave to file an interlocutory appeal was

granted and the Law Division rendered a decision eleven months

later. During that time, the municipal court stayed its

proceedings without any objection from defendant.

The State did not join Draeger's appeal and there is no

evidence the proceedings on the motion to quash in the municipal

court and subsequent appeal in the Law Division were delayed by

any action or inaction of the State. Compare State v. Fulford,

349 N.J. Super. 183, 194-95 (App. Div. 2002) (concluding a thirty-

two month delay due to the State's voluntary pretrial intervention

term was not the basis for dismissal on speedy trial grounds)

State v. Tsetsekas, 411 N.J. Super. 1, 11-14 (App. Div. 2009)

(holding a 344 day delay was unacceptable because of the State's

lack of preparation); State v. Farrell, 320 N.J. Super. 425, 452-

453 (App. Div. 1999) (holding a 663 day delay and thirteen non-

16 A-2174-15T4
continuous widely-spaced court sessions as excessive, because of

prosecutorial inattention to trial responsibilities); and State

v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983) (finding a

seven and a half month delay was not a speedy trial violation

because the lapse in time was reasonably justified and explained

by a transfer between municipal courts and the unavoidable absence

of the prosecution's witness). There is also no support in the

record for defendant's contention that Ratka was an agent of the

State or the State's witness. The delay was not the fault of any

party, but instead was the result of active litigation between

defendant and Draeger over a contested issue concerning the

appearance of a witness. Under all of the circumstances presented,

we are satisfied the delay was not unreasonable.

We also consider the reason for the delay. See Cahill, supra,

213 N.J. at 273. Again, 353 days of the challenged delay was the

result of the motion practice and subsequent appeal related to the

dispute between defendant and Draeger over the validity of the

Ratka subpoena. The dispute over the subpoena complicated

defendant's case, and resulted in an attempted appeal that required

resolution before the case could continue in the municipal court.

Moreover, there is no reason for the delay that is attributable

17 A-2174-15T4
to the State.7 See, e.g., Tsetsekas, supra, 411 N.J. Super. at 14

(finding a 344 day delay was excessive because it was brought on

by the State's lack of preparation); Detrick, supra, 192 N.J.

Super. at 426 (rejecting a claimed speedy trial violation in a DWI

matter where the seven-month delay was caused by a change in venue

and the absence of witnesses). The reason for the delay factor

under Barker therefore weighs against defendant's speedy trial

claim.

Defendant asserted his right to a speedy trial for the first

time on May 15, 2013, in a proceeding before the municipal court

and in a letter to the court. Defendant filed his speedy trial

motion on June 12, 2013. Thus, the third Barker factor supports

defendant's speedy trial claim, but we give the factor little

weight because defendant did not assert the right until late in

the 437-day delay period about which he complains. We are mindful

that "[a] defendant does not . . . have the obligation to bring

himself to trial." Cahill, supra, 231 N.J. at 274. A failure to

timely assert the right, however, is a factor to be considered in

the assessment of an alleged speedy trial violation. Ibid.

7
On May 15, 2013, three weeks after the Law Division's order
denying Draeger's motion for leave to appeal, the State advised
the court it was ready to proceed to trial. At that time, defense
counsel advised that he could not proceed to trial because he
intended to file a speedy trial motion and had an outstanding
motion to compel discovery.

18 A-2174-15T4
 We last address the fourth Barker factor, prejudice to

defendant. See Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192,

33 L. Ed. 2d at 117. In addressing prejudice, we consider three

interests: prevention of oppressive pretrial incarceration,

minimization of defendant's anxiety concerns and whether the

defense has been impaired by the delay. See Barker, supra, 407

U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118; Cahill, supra,

213 N.J. at 266.

Defendant does not claim that he was subject to pretrial

incarceration or that his defense was impaired by the 437-day

delay. Instead, he generally contends the delay caused disruption

to his daily activities, the consumption of time and money, and

emotional anxiety. Although the record is devoid of any evidential

support for the claim, we recognize that defendant may have

suffered from the uncertainty caused by the delay. Hardship caused

by the uncertainty of awaiting disposition of his case, however,

"is insufficient to constitute meaningful prejudice." State v.

Misurella, 421 N.J. Super. 538, 546 (App. Div. 2011) (quoting

State v. Le Furge, 222 N.J. Super. 92, 99-100 (App. Div.), certif.

denied, 111 N.J. 568 (1988)).

In sum, the 437-day delay here was primarily the result of

the resolution of an issue litigated between Draeger and defendant.

The State did not contribute to the delay, and the delay did not

19 A-2174-15T4
cause defendant any appreciable prejudice. We therefore conclude

the court correctly denied defendant's motion to dismiss the

summonses on speedy trial grounds.

Affirmed.

20 A-2174-15T4