STATE OF NEW JERSEY VS. GEORGE v. KWEDER, JR. (13-03-0919, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2145-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE V. KWEDER, JR.,

Defendant-Appellant.
_____________________________

Argued January 7, 2019 – Decided March 26, 2019

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 13-03-0919.

Eric R. Breslin argued the cause for appellant (Duane
Morris, LLP, attorneys; Eric R. Breslin and Amanda L.
Bassen, of counsel and on the briefs; Jovalin Dedaj, on
the brief).

Linda A. Shashoua, Assistant Prosecutor, argued the
cause for respondent (Mary Eva Colalillo, Camden
County Prosecutor, attorney; Linda A. Shashoua, of
counsel and on the brief).

PER CURIAM
 On March 5, 2012, shortly after 5 p.m., defendant George Kweder was

driving his pick-up truck westbound on the Atlantic City Expressway.

Witnesses observed defendant's car darting in and out of traffic before veering

slowly from the left lane to the right shoulder, where it collided with a Lexus

parked on the shoulder with its flashers on. The collision pushed the Lexus

ninety-five feet, down an embankment, and into a tree. The driver of the Lexus

remained conscious for some time before succumbing to crush injuries.

Post-accident forensic investigation revealed that defendant's truck was

traveling at sixty-six miles per hour shortly before impact, and that defendant

never applied the brakes. Analysis of data from the Lexus revealed that the

impact caused the car to accelerate from zero to forty-two miles per hour in two-

hundredths of a second.

Defendant's truck flipped over several times before coming to a stop.

Witnesses, including an emergency medical technician (EMT) and the first New

Jersey State Police Trooper to arrive at the scene, Ricardo Delgado, all detected

the odor of alcohol on defendant's breath. Defendant told Trooper Delgado that

he did not know what happened, he was "out of it," and he was diabetic and had

not taken his medicine that day. Empty and near-empty beer cans and bottles

were found in the passenger compartment of defendant's truck. Defendant was

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taken for medical treatment at a nearby hospital, where he consented to a blood

draw; his blood alcohol concentration (BAC) level was .079.

A grand jury indicted defendant for one count of second-degree death by

auto, N.J.S.A. 2C:11-5. The jury convicted defendant at trial, and the judge

sentenced him to a seven-year term of imprisonment subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following issues for our consideration:

POINT I

DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.1

POINT II

THE TRIAL COURT IMPROPERLY PRECLUDED
[DEFENDANT] FROM INTRODUCING HIS
THEORY OF CAUSATION TO THE JURY.

POINT III

THE TRIAL COURT DENIED [DEFENDANT] HIS
CONSTITUTIONAL RIGHT TO CONFRONT THE
STATE'S EXPERT WITNESS THROUGH CROSS-
EXAMINATION.

POINT IV

THE TRIAL COURT ERRED IN ADMITTING
STATEMENTS MADE BY [DEFENDANT] TO

1
We have eliminated the sub-points of the arguments.
A-2145-16T3
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 HEALTHCARE PROFESSIONALS IN
CONNECTION WITH MEDICAL TREATMENT.

We have considered these arguments in light of the record and applicable legal

principles. We remand to the Law Division for a hearing to consider and

definitively rule on defendant's speedy trial argument raised in Point I. In all

other respects, we affirm defendant's conviction.

I.

We consider the substantive arguments regarding the trial in reverse order.

A.

The judge held N.J.R.E. 104 hearings outside the presence of the jury

regarding statements defendant made to EMT Cheryl Ehrman-Massey and Nurse

Stephanie Hazelton. EMT Ehrman-Massey arrived at the scene shortly after the

collision and spoke to defendant, who complained of head and arm pain. She

described defendant as cooperative and appropriately responsive, and she rode

with defendant to the hospital in an ambulance. EMT Ehrman-Massey detected

alcohol on defendant's breath and asked if he had any alcoholic beverages during

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the day. Defendant answered affirmatively, saying he had six beers prior to the

accident.2

Later at the hospital emergency room, Nurse Hazelton drew blood from

defendant after receiving a "kit" from Trooper Delgado. She recalled asking

defendant general questions, including, what happened. Defendant, who was

coherent and answered the nurse's questions appropriately, said "he didn’t

remember what happened and . . . th[ought] he fell asleep."

After the conclusion of each N.J.R.E. 104 hearing, defense counsel

objected to admission of the statements, asserting N.J.R.E. 506, the physician -

patient privilege, applied. Additionally, as to defendant's statement to Nurse

Hazelton, defendant argued the questioning took place while he was in custody.

The judge rejected these arguments, and both witnesses testified to the

2
During cross-examination of Trooper Delgado, defense counsel played the
recording from the trooper's motor vehicle recorder, which captured defendant
telling the trooper at the scene that he was returning from "[g]etting our boat
together," and he did not know what happened and was "completely out of it."
At the hospital, defendant told Trooper Delgado that he had three beers at a
tavern during lunch.

Defendant elected not to testify, but his brother told the jury that he and
defendant had three beers during lunch at the tavern after both had spent the
earlier part of the day cleaning their boat. Defendant's brother stated that the
beer cans and bottles found in defendant's truck were those removed from the
boat.
A-2145-16T3
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statements in front of the jury. Defendant essentially renews the arguments

before us.

"The admission or exclusion of evidence at trial rests in the sound

discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016) (citing State

v. Gillispie, 208 N.J. 59, 84 (2011)). "Because the invocation of privileges

results in the loss of relevant evidence, 'courts . . . have long construed them

narrowly in an attempt to promote, at once, the goals of the privilege and the

truth[-]seeking role of the courts.'" State v. L.J.P., 270 N.J. Super. 429, 440

(App. Div. 1994) (quoting State v. Schreiber, 122 N.J. 579, 582-83 (1991)).

The physician-patient privilege does not apply to statements defendant

made to EMT Ehrman-Massey. See N.J.R.E. 506(b) (preventing disclosure of a

"confidential communication between patient and physician") (emphasis

added); and N.J.R.E. 506(a) (defining "patient" and "physician"). Defendant

acknowledges this in his brief, but urges us to expand the privilege to include

all members of his "treatment team." See, e.g., State v. Smith, 307 N.J. Super.

1, 12-13 (App. Div. 1997) (suggesting physician-patient privilege may apply to

communications between hospital patient and "treatment team"); State v.

Phillips, 213 N.J. Super. 534, 543 n.5 (App. Div. 1986) (noting that the

physician-patient privilege "should also protect confidential statements made to

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a treating nurse, acting either as an agent under the supervision of a doctor or in

her professional capacity"). We decline the invitation, as did the trial judge,

because, as an intermediate court of appeal, such a significant expansion of the

privilege is more appropriately the province of our Supreme Court. Riley v.

Keenan, 406 N.J. Super. 281, 297 (App. Div. 2009).

As to defendant's statements to Nurse Hazelton, we have held that direct

communications by a patient to a nurse in a hospital emergency room (ER) do

not constitute a "confidential communication between patient and physician."

N.J.R.E. 506(b); see State v. Risden, 106 N.J. Super. 226, 237 (App. Div. 1969)

(holding physician-patient privilege did not apply to exclude testimony of nurse

in emergency room, who asked the defendant, "[h]ow did this happen?" and

noted the answers in a report), modified on other grounds, 56 N.J. 27 (1970). In

Phillips, we held that the privilege did not protect communications between the

defendant and attending physicians and a nurse drawing blood when overheard

by a police officer in attendance. 213 N.J. Super. at 541-43. Moreover, N.J.R.E.

506(a) defines a "patient" as one who "for the sole purpose of securing

preventative, palliative, or curative treatment, or a diagnosis preliminary to such

treatment, . . . consults a physician, or submits to an examination by a

physician[.]" Trooper Delgado specifically tasked Nurse Hazelton with drawing

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blood for a potential prosecution of defendant, so communications between her

and defendant were not within the scope of the privilege. Phillips, 213 N.J.

Super. at 542-43.

In sum, there was no error in admitting these statements for the jury's

consideration.

B.

Throughout several of the many pre-trial proceedings, the parties and the

judge discussed whether defendant intended to produce a medical expert who

would link his diabetic condition to the accident. Ultimately, defendant did not

retain a medical expert. During one of the pre-trial conferences, counsel said he

only intended to call the ER doctor as a witness. He expected the doctor to

testify that blood tests performed at the hospital revealed defendant was diabetic

and was suffering from hyperglycemia.

In anticipation of trial, defendant submitted proposed jury instructions on

causation that required the jury to consider whether defendant's reckless conduct

caused the accident, or whether it "was instead caused by an emergent medical

condition of [defendant] . . . ." Noting the lack of any defense expert report, the

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judge refused to give the charge until he conducted a N.J.R.E. 104 hearing to

evaluate the ER doctor's testimony. 3

The State's final witness at trial was Thomas Brettell, an expert in forensic

chemistry and forensic toxicology. Brettell opined that defendant's BAC ranged

from .07 to .09 at the time of the accident and would have been at its highest

point between 4:30 p.m. and 5:30 p.m. On cross-examination, Brettell stated

that some diseases might affect the rate of alcohol absorption, but diabetes does

not.

Defense counsel read a passage from a medical treatise that Brettell cited

in his expert report. The passage stated, "[a]ny medication that alters the rate of

metabolism can affect blood alcohol levels" and "any condition that causes 'extra

cellular' water retention (. . . diabetes, for example) will alter results." 4 The

prosecutor objected.

At side bar, defense counsel argued it was proper to ask Brettell about the

passage because, even though the expert knew from defendant's medical records

about the finding of hyperglycemia, Brettell failed to include it in his expert

3
Defendant never called the ER doctor as a witness either.
4
The treatise is not part of the appellate record. The trial transcript did not
contain quotation marks within counsel's question, but the context gives us
assurance it was a quote from the textbook.
A-2145-16T3
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report. Defense counsel indicated he had no other questions for Brettell in this

regard.

The judge reasoned, "the fact that [defendant is] a diabetic, there is

nothing in the record that establishes that has anything to do with this case at

all." The judge further explained, "even if [Brettell] saw in the records that

[defendant] was a diabetic, [Brettell] does not have the qualifications [of] a

medical doctor." The judge sustained the objection and did not permit further

questions or readings from the treatise. The following day, the judge told the

jury to disregard what defense counsel had read from the textbook.

Defendant argues that the judge's ruling denied his constitutional right to

cross-examination and requires reversal. We agree the ruling was a mistaken

exercise of discretion, but any error was harmless.

Cross-examination "should be limited to the subject matter of the direct

examination and matters affecting the credibility of the witness." N.J.R.E.

611(b). N.J.R.E. 705 specifically permits questioning of an expert regarding

"underlying facts or data" considered in forming his or her opinion. Our courts

have long recognized the ability to use learned treatises as tools for cross -

examining experts. See Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486-87

(1992).

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 Here, Brettell's expert opinion, i.e., that defendant's BAC was likely .09

at the time of the accident, was critical evidence. He apparently cited this

particular treatise in his expert report 5 and acknowledged that some diseases

could affect alcohol absorption rates. The learned treatise Brettell cited rebutted

his answer on cross-examination, that diabetes was not such a disease. The

proposed cross-examination was entirely proper.

Moreover, although defense counsel never sought to admit the statement

from the treatise as substantive evidence, the learned treatise exception to the

hearsay rule, N.J.R.E. 803(c)(18), provides:

To the extent called to the attention of an expert witness
upon cross-examination or relied upon by the expert in
direct examination, statements contained in published
treatises, . . . on a subject of . . . medicine, or other
science or art, established as a reliable authority by
testimony . . . . If admitted, the statements may not be
received as exhibits but may be read into evidence . . . .

Brettell himself recognized the authority of the treatise. Had counsel sought its

admission, the passage would have properly been in evidence.

Whether the erroneous limitation on cross-examination compels reversal

requires us to "decide whether the trial court's error was 'harmless beyond a

reasonable doubt.'" State v. Bass, 224 N.J. 285, 307-08 (2016) (quoting Del. v.

5
We say apparently because the report is not part of the appellate record.
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Van Arsdall, 475 U.S. 673, 684 (1986)). We disregard an error by the trial court

"unless it is of such a nature as to have been clearly capable of producing an

unjust result." Id. at 308 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).

"The possibility that the error led to an unjust result 'must be real, one sufficient

to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached.'" Ibid. (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

Here, preventing the jury from hearing Brettell acknowledge that the

treatise contradicted his earlier opinion was harmless beyond a reasonable doubt

because no evidence was presented that defendant's hyperglycemic condition

actually influenced the BAC reading or otherwise affected defendant's driving.

Without such evidence, permitting defense counsel to read from the textbook

and ask a follow-up question of Brettell would have had marginal impeachment

value. Especially since defendant called his own expert at trial, Dr. Richard

Saferstein, who directly contradicted Brettell's conclusion about defendant's

BAC at the time of the crash, but was never questioned about the effect of

diabetes on BAC.

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 Any error in foreclosing defense counsel's reading from the treatise does

not require reversal. 6

C.

The model jury charge on causation provides in relevant part:

Causation has a special meaning under the law.
To establish causation, the State must prove two
elements, each beyond a reasonable doubt:

First, but for the defendant's conduct, the result
in question would not have happened. In other words,
without defendant’s actions the result would not have
occurred.

....

Second, [for reckless conduct] that the actual
result must have been within the risk of which the
defendant was aware. If not, it must involve the same
kind of injury or harm as the probable result and must
also not be too remote, too accidental in its occurrence

6
Dr. Saferstein filed a supplemental report, included within the appellate
record, in support of defendant's earlier motion to dismiss the indictment. That
report noted defendant's diabetic condition. Dr. Saferstein opined, "The
symptoms associated with hyperglycemia can readily be mistaken with those
symptoms associated with alcohol-induced intoxication." The report, however,
did not address the effect of diabetes or hyperglycemia on
BAC levels. At trial, defense counsel limited his questioning of Dr. Saferstein,
who was not a medical doctor, to defendant's BAC at the time of the crash, and
why the jury should reject Brettell's opinion. The decision not to present
evidence connecting intoxication-like symptoms to defendant's diabetes was
consistent with defense counsel's closing argument, in which he contended
defendant's demeanor at the crash scene and hospital belied the State's assertion
that defendant was intoxicated and his driving impaired.
A-2145-16T3
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 or too dependent on another’s volitional act to have a
just bearing on the defendant's liability or on the gravity
of his/her offense.

[Model Jury Charges (Criminal), "Causation (N.J.S.A.
2C:2-3)" (approved June 10, 2013) (emphasis added).]

As already noted, defendant submitted a proposed jury charge on

causation before trial. The proposed charge anticipated the introduction of

evidence that the victim parked his car on the shoulder to answer a cellphone

call, not because of an emergency. Defense counsel argued this violated

N.J.A.C. 19:2-3.6, which generally prohibits "[p]arking . . . or stopping . . . on

the [Atlantic City] Expressway, except . . . in cases of emergency," defined as

"when the vehicle in question is physically inoperable or unable to be operated

safely, or when the driver of the vehicle is ill or fatigued . . . . " N.J.A.C. 19:2-

3.6(a) and (c). The proposed charge on causation asked the jury to consider

whether the victim's "volitional act," i.e., illegally parking on the shoulder, was

"an intervening cause of this accident that relieve[d] . . . defendant of criminal

liability . . . ."

The State objected, arguing generally that the position of the victim's car

and whether it was parked illegally was irrelevant to the issue of causation.

Relying primarily on State v. Buckley, 216 N.J. 249 (2013), the judge agreed

and entered an order memorializing his decision.

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 In his opening statement, the prosecutor said the victim parked his car

"safely" on the shoulder. Defendant sought reconsideration of the judge's prior

order, claiming the State "opened the door." The judge denied the request.

In his final instructions, the judge's charge on causation was limited to the

following: "In order to find that the defendant caused [the victim's] death, you

must find that [the victim] would not have died but for defendant's conduct."

The judge never provided the portion of the model charge emphasized above,

but, instead, immediately followed by charging the jury on recklessness. See

N.J.S.A. 2C:11-5(a) (defining the crime as "[c]riminal homicide . . . caused by

driving a vehicle . . . recklessly."). Although the judge noted before he began

defense counsel's continuing objection based on the court's refusal to provide

the proposed charge, there was no contemporaneous objection from defense

counsel to the charge as given.

Defendant argues it was error to exclude evidence of the victim's

regulatory violation, particularly after the prosecutor's opening statement. He

also contends the judge's charge erroneously removed from the jury's

consideration an essential element of causation when an element of the offense

is reckless conduct.

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 In Buckley, the defendant-driver was charged with death by auto after he

collided with a utility pole, causing the death of his passenger. 216 N.J. at 257 -

58. The issue before the Court, on interlocutory appeal, was whether the

defendant could introduce evidence of alleged intervening causes, i.e., the

victim was not wearing a seat belt and the placement of the utility pole, which

violated Department of Transportation standards. Id. at 259. The Court

considered whether this evidence was relevant to recklessness and causation.

Id. at 262.

The Court noted that "[w]hile '[c]ausation is a factual determination for

the jury to consider . . . the jury may consider only that which the law permits it

to consider.'" Id. at 263 (second alteration in original) (quoting State v. Pelham,

176 N.J. 448, 466 (2003)). The jury must first determine "whether the State has

established 'but for' causation . . . that the event would not have occurred absent

the defendant's conduct" of driving in the manner that he did. Ibid. (citing

N.J.S.A. 2C:2-3(a)). "In cases involving the mens rea of recklessness, the jury

then conducts a 'culpability assessment' under N.J.S.A. 2C:2-3(c)." Id. at 263-

64 (citing Pelham, 176 N.J. at 460).

N.J.S.A. 2C:2-3(c) provides in relevant part:

When the offense requires that the defendant
recklessly . . . cause a particular result, the actual result

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 must be within the risk of which the actor is aware . . .
or, if not, the actual result must involve the same kind
of injury or harm as the probable result and must not be
too remote, accidental in its occurrence, or dependent
on another’s volitional act to have a just bearing on the
actor’s liability or on the gravity of his offense.

[(Emphasis added).]

"As the drafters of the Code noted, N.J.S.A. 2C:2-3(c) 'deal[s] explicitly with

variations between the actual result' and the result risked in a recklessness case,

and 'stat[es] when the variation is not material.'" Buckley, 216 N.J. at 264

(quoting II The New Jersey Penal Code: Final Report of the New Jersey Criminal

Law Revision Commission, commentary to § 2C:2-3, at 50 (1971)).

When considering

the first component of N.J.S.A. 2C:2-3(c)'s two-
pronged test for causation: whether 'the actual result'
was 'within the risk of which the actor is aware[,]'. . .
the jury will determine whether [the] defendant was
aware that, by virtue of the manner in which he drove
the vehicle, he created a risk of a fatal collision. If the
jury determines that [the] defendant was aware that his
conduct gave rise to such a risk, it need not assess the
exact degree of that risk, or the variables that could
affect its magnitude.

[Id. at 267-68 (citations omitted).]

Under the second prong, "when permitted by the law, 'it is for the jury to

determine whether intervening causes or unforeseen conditions lead to the

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conclusion that it is unjust to find that the defendant's conduct is the cause of

the actual result.'" Id. at 265 (quoting Pelham, 176 N.J. at 461) (emphasis

added). "An 'intervening cause' occurs when an event 'comes between the initial

event in a sequence and the end result, thereby altering the natural course of

events that might have connected a wrongful act to an injury.'" Ibid. (quoting

Pelham, 176 N.J. at 461).

For our purposes, we focus on the Buckley Court's discussion of whether

the placement of the utility pole was relevant to the jury's consideration of the

defendant's recklessness or causation. In this case, defendant's argument is that

the victim's illegally parked car — similar to the improperly placed pole — was

an intervening cause. The Court first noted the placement of the pole was

irrelevant to the jury's "but for" determination under N.J.S.A. 2C:2-3(c). Id. at

269.

Second, under the first prong of N.J.S.A. 2C:2-3(c), the
jury's determination of whether a fatal accident was
"within the risk of which [defendant was] aware" does
not, as a matter of law, implicate a particular utility
pole's compliance with [Department of Transportation]
recommendations. The question of defendant's
awareness that his driving posed a risk of a fatal
accident bears no nexus to the precise placement of a
single utility pole, one among many structures and
other stationary objects located near the road on which
he drove on the day of the accident.

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 [Id. at 270.]

So, too, in this case, defendant's reckless driving posed the risk of accident to

all cars on the road, not only the victim's car parked on the shoulder. The cases

cited by defendant compel no different result. Therefore, the judge properly

denied admission of the evidence regarding regulatory violations.

Additionally, defendant's argument that the prosecutor's opening

statement "opened the door" to admit this evidence lacks sufficient merit to

warrant discussion. R. 2:11-3(e)(2). It follows that the judge did not err by

deciding not to provide defendant's proposed charge on causation.

We are troubled, however, by the judge's failure to provide the model jury

charge's causation instruction that explains the first prong of N.J.S.A. 2C:2-3(c),

i.e., "that the actual result must have been within the risk of which the defendant

was aware." Model Jury Charges, at 1. However, the judge followed his

truncated instruction on causation with a full and complete charge on

recklessness. The charge advised the jury that the State needed to prove beyond

a reasonable doubt that "defendant was aware that he was operating a vehicle in

such a manner or under such circumstances as to create a substantial and

unjustifiable risk of death to another." As noted, there was no objection to the

charge as given. Under these circumstances, we have no doubt the jury

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understood the essential principles of recklessness and causation. Any error did

not have the clear capacity to produce an unjust result. R. 2:10-2.

We affirm defendant's conviction.

II.

The State filed a complaint against defendant on August 23, 2012, more

than five months after the accident. A grand jury did not indict defendant until

March 2013, nearly seven months after that. At arraignment in June, the judge

set a discovery end date of August 15, 2013.

Motion practice by defendant and the State followed. Defendant moved

to dismiss the complaint, arguing the State had not provided access to the

vehicles to permit his expert's investigation, and the prosecutor failed to provide

the grand jurors with evidence of defendant's diabetes, which, according to

Saferstein's supplemental report, may have mimicked intoxication-like

behavior. By the time the motion was argued, in January 2014, defense coun sel

acknowledged his expert had inspected the vehicles. The judge denied the

motion to dismiss, as well as defendant' motion for reconsideration, by order in

March 2014.

During an April 2014 hearing, defendant moved to restore his driver's

license, which had been forfeited as a condition of bail. The judge granted that

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application. At the same hearing, the State sought a delay in trial to furnish its

expert report.7 Defendant objected, noting he had supplied the State with two

expert reports, "one on the topic of extrapolation, another on the topic of the

medical condition and hyperglycemia" as of December 2012. The prosecutor

argued the State's expert report was necessary, "given what came up in the

motion to dismiss." The judge noted the delay would not prejudice defendant,

since it was unlikely that the case could be tried for several months; he granted

the State's request to furnish its expert report in four weeks.

The parties were again before the judge in May, after the State had served

its expert report. Noting "the State ha[d] been dragging its legs in this . . .

matter" and "was lapsed [sic] in what they were doing[,]" the judge nevertheless

ruled the State could use the report at trial, noting a likely fall trial date.

Defendant asked for a two-week delay to address the State's expert report. The

judge noted that a short delay would not matter because defendant had filed an

interlocutory appeal of his decision to extend discovery and "until the Appellate

Division makes a ruling, we're in limbo. If they . . . determine I was incorrect,

7
The prosecutor never named the proposed expert nor did he identify the subject
of the report.
A-2145-16T3
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then it's going to dismiss the indictment. So, I really . . . have to wait for that ."

We ultimately denied defendant's interlocutory application.

The judge conducted a pre-trial conference on May 20, 2014, during

which defendant rejected the State's plea offer, and the judge set a trial date of

October 6, 2014. The trial did not start, and the record is silent as to any court

proceedings thereafter until June 19, 2015. The State had filed a motion to

reopen discovery and compel production of defendant's medical records, and

defendant had filed a motion to bar portions of Brettell's report. The judge

originally handling the case had retired, so a second judge heard argument on

the respective motions.

The judge queried why the State had delayed seeking to compel

production of defendant's medical records. The prosecutor conceded that the

motion should have been filed two years earlier, before he began handling the

matter, but argued that defendant had placed his medical condition — diabetes

— in issue by "hir[ing] an expert[,]" Dr. Saferstein.

Defense counsel opposed the motion, claiming defendant "has been

consistently asserting his right to a speedy trial." He also told the judge

"Saferstein is not an expert on diabetes, and Saferstein is not gonna be permitted

. . . to testify about diabetes. Saferstein's report was for the purpose of

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extrapolation." Defense counsel clarified that he planned to call the ER doctor

to discuss defendant's medical condition on the date of the accident. The judge

recognized defendant's "speedy trial" rights "are real at this point," and, although

he was "[n]ot suggesting that defendant's been denied that[,]" he chastised the

prosecutor for not acting sooner. The judge reserved on the motions and invited

the parties to file further submissions.

On July 10, 2015, the judge denied the State's motion to compel

production of defendant's medical records given defense counsel's

representation that defendant would not assert his medical condition as a

defense. The judge again reserved on defendant's motion to bar portions of

Brettell's report. In a subsequent order, the judge set October 26, 2015, as the

new trial date.

On October 26, 2015, the parties were again before the judge. Citing

defendant's witness list, which included the ER doctor, the prosecutor asked the

judge to reopen discovery to permit the State to retain and call an expert at trial

"to rebut . . . any diabetes defense that may come out during trial." Despite the

judge's earlier order, the State had obtained an order in September from the

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Criminal Presiding Judge permitting it to obtain defendant's medical records. 8

The State also hired an expert, whose report, according to the prosecutor,

asserted "diabetes doesn't really have anything . . . to do with this."

Obviously exasperated, the judge stated, "we've conferenced this matter

at least a couple of times and I've been told at least once that diabetes isn't in the

case." He asked defense counsel whether he planned to ask the ER doctor

whether hyperglycemia could mimic intoxication. Counsel responded, "[I]

could ask him that." Defense counsel asserted that if the court granted the State's

motion, he would also seek to retain an expert who would opine that defendant

passed out at the wheel because he was hyperglycemic.

Noting it was now thirteen months since the first judge had ruled on the

diabetes issue, the judge said, "we're still kicking this thing around," and again

expressed concern about speedy trial rights. He granted the State's request, gave

defendant sixty days to obtain another expert, and adjourned the trial to February

2016.

The record again fails to disclose what delayed the trial in February.

However, the second judge was reassigned to another division in the interim,

8
The circumstances that led to this order are unexplained in the record, and
there is no transcript from any proceedings before the Criminal Presiding Judge.
A-2145-16T3
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and, on July 22, 2016, the parties appeared before the trial judge for the first

time. The record only reflects the results of a conference held in chambers, with

the judge setting dates for the State's motions, a date for service of defendant's

expert's report and a firm trial date of September 19. 9

Again, for reasons unexplained by the record, the case did not proceed to

trial in September. On November 17, 2016, the trial judge entered an order

reaffirming the second judge's ruling of October 2015, i.e., that the State was

permitted to rebut by expert testimony "any [d]iabetes [d]efense raised at

[t]rial." As already noted, defense counsel never retained a medical expert, nor

did defendant call the ER doctor as a witness. Trial commenced on December

6, 2016.

Defendant argues the forty-five month delay between indictment and trial

violated his constitutional right to a speedy trial. 10 The State counters by

contending much of the delay, indeed the last fourteen months befo re the start

of trial, was solely attributable to defense counsel's obfuscation regarding what

role, if any, evidence of defendant's medical condition would play at trial.

9
The transcript does not identify the nature of the State's motions.
10
The right to a speedy trial "attaches upon defendant's arrest." State v.
Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009).
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 In State v. Cahill, the Court reiterated "that the four-factor balancing

analysis of Barker v. Wingo, 407 U.S. 514 (1972), remains the governing

standard to evaluate claims of a denial of the federal and state constitutional

right to a speedy trial . . . ." 213 N.J. 253, 258 (2013). 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, 407 U.S. at 530).

"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." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he factors

are interrelated, and each must be considered in light of the relevant

circumstances of each particular case." Tsetsekas, 411 N.J. Super. at 10 (citing

Barker, 407 U.S. at 533).

When a delay exceeds one year, the court presumptively should analyze

the remaining Barker factors, however, longer delays may be tolerated for

serious offenses or complex prosecutions. Cahill, 213 N.J. at 265-66. "Barker's

second prong examines the length of a delay in light of the culpability of the

parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407 U.S. at 529). Trial

courts, in reviewing "the chronology of the delay," should "divid[e] the time into

discrete periods of delay" and attribute each delay to the State, the defendant or

A-2145-16T3
26
the judiciary. State v. May, 362 N.J. Super. 572, 596 (App. Div. 2003). Of

course, purposeful delay tactics weigh heavily against the State, Tsetsekas, 411

N.J. Super. at 12, while "[d]elay caused or requested by the defendant is not

considered to weigh in favor of finding a speedy trial violation." State v. Farrell,

320 N.J. Super. 425, 446 (App. Div. 1999) (citing State v. Gallegan, 117 N.J.

345, 355 (1989)).

While a defendant is under no obligation to assert his speedy trial rights,

"'[w]hether and how a defendant asserts his right is closely related' to the length

of the delay, the reason for the delay, and any prejudice suffered by the

defendant." Cahill, 213 N.J. at 266 (quoting Barker, 407 U.S. at 531). A

defendant's assertion of his right to a speedy trial is "entitled to strong weight

when determining whether the [S]tate has violated the right[,]" ibid., and,

conversely, his delay or failure to assert the right weighs "against any

determination that the right was violated . . . ." May, 362 N.J. Super. at 598.

"The only remedy" for a violation of a defendant's right to a speedy trial

"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse

only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.

Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)).

A-2145-16T3
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 Here, although there was a lengthy delay between defendant's arrest and

trial, the reasons for the delay were innumerable and seemingly attributable to

both sides. As noted, both the first and second judges took note of the delays in

the context of defendant's right to a speedy trial, but neither engaged in the

analysis we outlined above or made a ruling on the issue. Indeed, the second

judge stated unequivocally that he was not making a finding that the State had

violated defendant's speedy trial rights. In short, having never made a ruling,

we have no ability to consider whether the judges exercised their discretion

appropriately, or in a clearly erroneous manner.

We are unable to review this record anew and exercise original

jurisdiction to decide the question ourselves. R. 2:10-5. As noted, the reasons

for vast chunks of time between proceedings prior to trial are unexplained by

the record.11 Defendant's appellate brief argues that he formally asserted his

right to a speedy trial, citing briefs apparently filed in the trial court. Although

Rule 2:6-1(a)(2) generally prohibits including those briefs in the appellant's

appendix, an exception is made where "the question of whether an issue was

11
Defendant's appendix contains Promis Gavel docket entries for numerous
dates that are not contained in any transcripts provided. Some of those entries
explain there was incomplete discovery or that a witness was missing, but we
have no ability to verify the reasons behind the entries.
A-2145-16T3
28
raised in the trial court is germane to the appeal . . . ." However, the appellate

record does not include those briefs. We acknowledge that defense counsel

orally referenced defendant's speedy trial rights during several of the transcribed

sessions, but none of the judges ever made a ruling if indeed a formal motion

had been made.

In short, "the difficult task of balancing all the relevant factors relating to

the respective interests of the State and the defendant[]," and applying the court's

"subjective reactions to the particular circumstances [to] arrive[] at a just

conclusion" is, in the first instance, best delegated to the trial judge. Merlino,

153 N.J. Super. at 17. We therefore remand the matter to the Law Division to

consider whether the delay in this case violated defendant's right to a speedy

trial. We leave it to the sound discretion of the trial court regarding the conduct

of those proceedings, including whether testimony is necessary.

Should the court conclude defendant's speedy trial rights were violated, it

shall vacate defendant's judgment of conviction and dismiss the indictment.

Should the court conclude otherwise, our judgment affirms defendant's

conviction.

Affirmed in part; remanded in part. We do not retain jurisdiction.

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