SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3443-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BASILIS STEPHANATOS,

Defendant-Appellant.

_______________________

Submitted November 15, 2021 – Decided February 23, 2022

Before Judges Sabatino, Rothstadt, and Natali.

On appeal from the Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 11-09-

0810.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David A. Gies, Designated Counsel, on the 

briefs).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, Assistant 

Prosecutor, of counsel and on the briefs).

Appellant filed pro se supplemental briefs.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3443-18

PER CURIAM

Defendant Basilis Stephanatos appeals from his 2019 conviction by a 

jury of having committed the fourth-degree offense of causing or risking 

widespread injury or damage, N.J.S.A. 2C:17-2(c), and from his sentence to 

three-years non-custodial probation. The conviction stems from the events of 

June 28, 2011, when, after Sheriff's officers attempted to execute a writ of 

possession, defendant locked himself inside his home with weapons for several 

hours before surrendering possession. 

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL JUDGE ERRED WHERE HE FOUND 

AS A MATTER OF LAW THAT DEFENDANT WAS 

A "PERSON" TO WHOM N.J.S.A. 2C:17-2 

APPLIED IN ITS DEFINITION OF THE NUMBER 

OF "PEOPLE" TO BE INJURED IN ORDER TO 

CAUSE "WIDESPREAD INJURY OR DAMAGE."

POINT II

THE TRIAL JUDGE ERRED WHERE HE 

REVOKED DEFENDANT'S RIGHT OF SELFREPRESENTATION.

POINT III

THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S 

SPEEDY TRIAL MOTION WAS CLEARLY 

ERRONEOUS.
3 A-3443-18

In a Pro Se Supplemental Brief he also argues the following points that 

we have renumbered for clarity: 

POINT [IV]

THE TRIAL COURT COMMITTED A HARMFUL 

ERROR BY RULING THAT THE VOID AB INITIO 

EX-PARTE WRIT WAS NOT ILLEGAL AND 

PREVENTED DEFENDANT FROM TESTIFYING 

ABOUT THE VOID WRIT. (RAISED BELOW).

1. DISCOVERY OF THE 

EXTRAORDINARY EVIDENCE THAT THE EXPARTE WRIT ENTERED ON MAY 13, 2011 . . . 

WAS VOID AB INITIO.

2. THE TRIAL COURT DID NOT MAKE 

SUFFICIENT FINDINGS IN SUPPORT OF ITS 

DECISION TO DENY THE OMNIBUS MOTIONS 

IN THEIR ENTIRETY.

POINT [V]

THE TRIAL COURT COMMITTED A HARMFUL 

ERROR BECAUSE IT PREVENTED DEFENDANT 

TO TESTIFY AT TRIAL ABOUT HIS STATE OF 

MIND, THUS USURPING THE JURY'S ROLE IN 

DECIDING THE ULTIMATE ISSUE OF THE 

RECKLESSNESS STATE OF MIND OF THE 

DEFENDANT THAT WAS ONE OF THE 

REQUIRED ELEMENTS UNDER N.J.S.A. 2C:17-

2C. (RAISED BELOW).

1. THE TRIAL COURT ABUSED ITS 

DISCRETION BY FAILING TO CONSIDER 

LARGER RELEVANCY CONCEPTS WHEN 
4 A-3443-18

EVALUATING THE PROFFERED TESTIMONY OF 

[DEFENDANT].

2. THE TRIAL COURT COMMITTED 

REVERSIBLE ERROR IN FAILING TO COMPARE 

"RECKLESS" WITH OTHER MENTAL STATES 

AFTER THE JURY REQUESTED 

CLARIFICATION.

3. VIOLATION OF THE PRESENTMENT 

CLAUSE, N.J. CONST. ART. I, PAR 8.

POINT [VI]

THE TRIAL COURT COMMITTED A HARMFUL 

ERROR BECAUSE IT DENIED THE DEFENSES OF 

MISTAKE OF LAW OR FACT. (RAISED BELOW).

1. THE TRIAL COURT ERRED BY 

PREVENTING THE DEFENDANT TO 

COLLATERALLY ATTACK THE JUDGMENT OF 

FORECLOSURE AND ASSOCIATED ORDERS.

2. THIS CASE FALLS WITHIN AN 

EXCEPTION TO THE COLLATERAL BAR RULE 

AND THE TRIAL COURT HAS ERRED BY 

FAILING TO CONSIDER THE EXCEPTIONS.

POINT [VII]

THE COURT ERRED BY STATING THAT NO 

WARRANT FOR REMOVAL FROM A 

RESIDENTIAL PROPERTY WAS REQUIRED 

UNDER THE TAX SALE LAW. AN LLC CANNOT 

TERMINATE A RESIDENTIAL OCCUPANCY 

UNDER NEW JERSEY'S TAX SALE LAW. 

(RAISED BELOW).
5 A-3443-18

POINT [VIII]

UNDER THE DOCTRINE OF CUMULATIVE 

ERRORS, A NEW GRAND JURY SHOULD HAVE 

BEEN BE [SIC] CONVENED PURSUANT TO 

STATE V. ORECCHIO, 16 N.J. 125, 129 (1954). 

(RAISED BELOW).

1. THE LAW ON PERJURY BEFORE A 

GRAND JURY.

POINT [IX]

THE TRIAL COURT ABUSED ITS DISCRETION 

DURING SENTENCING BY PRESENTING FACTS 

NOT PRESENTED AT TRIAL; BY WRONGFULLY 

STATING AND WITHOUT ANY FACTUAL BASIS 

THAT [DEFENDANT] HAD A DISDAIN FOR 

POLICE OFFICERS; THAT DEFENDANT HAD 

MADE "THREATS" TO PEOPLE; THIS WAS 

CONTRARY TO THE PRE-TRIAL RULINGS BY 

THE TRIAL COURT THAT NO THREATS WERE 

EVER MADE. (RAISED BELOW).

1. THE TRIAL COURT MADE 

ERRONEOUS STATEMENTS ABOUT THE 

PAYMENT OF TAXES THAT ARE NOT IN THE 

RECORD AND THEY ARE NOT TRUTHFUL OR 

ARE NOT BASED ON COMPETENT, CREDIBLE 

EVIDENCE.

2. THE TRIAL COURT FAILED TO 

CREDIT [DEFENDANT] FOR THE 68 DAYS 

SPENT IN THE BERGEN COUNTY JAIL. 

[ANOTHER] JUDGE . . . ALREADY HAS RULED 

THAT JAILING WAS IN VIOLATION OF 

[DEFENDANT'S] FIRST AMENDMENT RIGHTS.
6 A-3443-18

3. THE COURT FAILED TO CONSIDER 

MITIGATING FACTOR 1 AND MITIGATING 

FACTOR 2 DURING SENTENCING. STATE V. 

DALZIEL, 182 N.J. 494, 502 (2005) (HOLDING 

THAT TRIAL JUDGES DO NOT HAVE 

"DISCRETION TO REJECT A MITIGATING 

FACTOR ALTOGETHER" DESPITE "EVIDENCE 

IN THE RECORD").

4. DOUBLE COUNTING AND DOUBLE 

JEOPARDY PROHIBITED DURING SENTENCING. 

AN ELEMENT OF THE OFFENSE MAY NOT BE 

CITED AS AN AGGRAVATING FACTOR TO 

INCREASE PUNISHMENT. NO COMPETENT 

AND RELEVANT EVIDENCE WAS USED TO 

ANALYZE THE AGGRAVATING FACTORS.

5. MULTIPLE PUNISHMENTS FOR THE 

SAME OFFENSE ARE STRICTLY PROHIBITED.

6. IT IS ALSO APPARENT THAT THE 

TRIAL COURT MISTAKENLY FOUND 

AGGRAVATING FACTORS, 3, 8 AND 9 BY 

RELYING "HEAVILY ON THE FACTS OF THE 

VERY OFFENSES THAT DEFENDANT WAS 

ACQUITTED ON[.]" STATE V. ANTHONY, 

APPELLATE DIVISION (JANUARY 19, 2016).

POINT [X]

THE COURT COMMITTED HARMFUL ERROR BY 

FINDING THAT THE DEFENDANT HAD NO 

POSSESSORY RIGHTS AND REASONABLE 

EXPECTATION OF PRIVACY IN HIS FULLYOWNED PROPERTY. (RAISED BELOW).
7 A-3443-18

POINT [XI]

THE APPLICATION OF THE VAGUE AND 

OVERBROAD STATUTE N.J.S.A. 2C:17-2C TO 

THE PRESENT CASE REPRESENTS ARBITRARY 

ENFORCEMENT, VIOLATING THE DUE 

PROCESS CLAUSE BECAUSE THE STATE 

LEGISLATURE DID NOT INCLUDE IN THAT 

STATUTE REFUSAL TO VACATE A HOME AS A 

PUNISHABLE FELONY OFFENSE. (RAISED 

BELOW).

We are persuaded that the almost eight-year delay in bringing 

defendant's matter to trial violated his right to a speedy trial. For that reason, 

we reverse the denial of his 2018 motion to dismiss the indictment on that 

basis and vacate his conviction. 

I.

The facts leading to defendant's conviction are summarized as follows. 

By 2004 defendant had fallen into arrears in the payment of property taxes for 

his home in Wayne Township. In 2005, the township sold the associated tax 

sale certificate to a third party, which by 2008 began the process of foreclosing 

on the property. In the ensuing litigation, the then-Chancery judge stayed the 

proceedings to allow defendant to file an action against the township 

challenging the taxes owed. That action was ultimately dismissed with 

prejudice in 2010 and the Chancery action resumed. In April 2010, the 
8 A-3443-18

Chancery judge struck defendant's responsive pleading and directed that the 

matter proceed as uncontested. The matter proceeded to judgment after the 

Chancery judge gave defendant an additional opportunity to redeem, which he 

failed to do.

A writ of possession was issued in May 2011, which the Passaic County 

Sheriff scheduled for execution on June 28, 2011. The Sheriff's office knew 

that defendant had vigorously defended against the foreclosure and that he 

possessed several weapons. With that knowledge, four officers were sent to 

defendant's home to execute the writ. 

In response to the Sheriff officers' attempt to execute the writ, defendant 

approached them from inside his home with a rifle in his hand. In accordance 

with their office's protocols, the officers safely retreated from the home and 

retrieved their weapons from their cars where they remained. They then called 

for assistance from hostage negotiators, a special weapons and tactics (SWAT) 

team, and a bomb squad. The requested back-up responded within a half hour.

In the meantime, while inside the house, defendant called the Chancery 

judge, who took the call on the record. Defendant asked that the judge "stay 

the eviction." In response, the judge asked that he leave the house and speak 

to the officers. Defendant was displeased with her response and told her that 
9 A-3443-18

"the only way he was coming out of the house was dead" and that "there was 

going to be bloodshed." Defendant made these statements "[a] number of 

times." 

According to defendant, he "panicked" and told the judge "there's going 

to be bloodshed today" because he "thought [he was] going to be shot." He 

also stated, "You've got to be kidding me, as I said, only dead I will be coming 

out of this home," and later, "[T]his is not going to happen, okay? Only dead 

will I come out of this home." He explained that he made these statements 

because he "was afraid [that was] going to happen" since armed officers were 

outside. Defendant said he was not holding the rifle to frighten anyone, never 

pointed or displayed any weapon at anyone, or threatened anyone and did not 

intend to cause anyone harm.

After defendant spoke to the judge, a Sheriff's officer made telephone 

contact with defendant. The officer stayed on the phone with him for several 

hours, urging defendant to leave the house. During the call defendant was 

very emotional and angry. He expressed concern that he was going to get hurt, 

despite the officer's assurance that if he came out no harm would come to him. 

Eventually, defendant left the house and cooperated with the officers. He was 

placed under arrest and his weapons were removed from the house.
10 A-3443-18

In September 2011, defendant was charged in Passaic County with 

possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-

4(a) (count one); two counts of aggravated assault of a law enforcement officer 

by knowingly pointing a firearm, contrary to N.J.S.A. 2C:12-1(b)(9) (counts 

two and three); recklessly creating a risk of widespread injury or damage, 

contrary to N.J.S.A. 2C:17-2(c) (count four); and hindering apprehension, 

contrary to N.J.S.A. 2C:29-3(b)(2) (count five).

Shortly thereafter, defendant was briefly represented by one attorney but 

soon replaced him with another privately retained counsel. From 2011 through 

2017, defendant's criminal case was assigned to a series of seven different 

judges. During that period, defendant filed numerous motions seeking various 

relief. Many of his pro se submissions attacked the underlying judgment in the 

civil actions, individual members of the Sheriff's department, and judges 

involved in his case. At some point prior to 2016, a judge directed that his 

continued filing of pro se submissions would be considered a violation of the 

conditions of his bail.

Among those motions that defense counsel filed, was a 2013 motion for 

a change in venue. In addition, defense counsel made numerous successful 

requests for adjournments, many based on counsel's health issues and others 
11 A-3443-18

due to schedule conflicts. And, while the venue motion was still pending, in 

October 2015, defendant submitted a pro se "omnibus motion," seeking 

dismissal of the indictment and other relief on various grounds, including that 

his right to a speedy trial had been violated, which he supported with 

complaints about delays caused by his attorney and the court, not the State.

Four years after the change in venue motion was filed, one of the judges 

granted it on December 26, 2017, without deciding the still pending "omnibus 

motion," and transferred the matter to Bergen County. After the transfer, 

defendant refiled the "omnibus motion," and several other motions that were 

heard and decided by the trial judge in Bergen County before defendant's trial 

began in January 2019. On February 4, 2019, the jury found defendant guilty 

of the one count in the indictment but not guilty of the remaining counts. The 

trial judge later sentenced defendant to three years non-custodial probation and 

imposed a $7,500 fine. This appeal followed.

II.

Because the time between defendant's arrest and his trial was inordinate, 

we turn our attention first to defendant's arguments about the violation of his 

right to a speedy trial. Defendant argues in Point III of his brief that the trial 

judge, in denying his motion for dismissal on speedy trial grounds, improperly 
12 A-3443-18

relied upon the fact that defense counsel asked for many adjournments. 

According to defendant, the attorney's adjournment requests accounted for less 

than half of the adjournments in the case, and the State and the judges 

previously assigned to the case were responsible for the rest. Defendant 

further argues that he suffered "significant harm," because: 1) he "los[t]" his 

chosen attorney, who he argues could have represented him at trial if it had 

happened earlier; 2) his financial resources were "severely stretched" by legal 

fees; and 3) he lost income and experienced "anxiety and humiliation" due to 

the lingering charges against him. 

A.

According to defendant, he first addressed the issue of the delay of his 

trial in April 2014, when he wrote to the court "urging [it] to promptly proceed 

with the case."1

 He expressed concern that it had taken "more than a year to 

rule" on his still undecided February 20, 2013 motion to change venue, and 

stated that he "suffered significant economic and non-economic damages . . . 

every day this case [was] delayed." The letter did not prompt any action by 

the court.

1 The letter in which this was said is not included in the record, but is 

discussed by defendant in his later October 12, 2015 letter to the court. 
13 A-3443-18

As previously mentioned, on October 12, 2015, four years after the 

indictment was issued, and while the 2013 venue motion was still pending, 

defendant filed a forty-seven-page letter as a pro se "omnibus motion" 

complaining about his attorney causing delays in his case, raising questions 

about the veracity of the attorney's health issues, and asking that the 

indictment be dismissed on several grounds, including that his speedy trial 

rights had been violated. In his letter, defendant complained that there had 

been "no end to the lengthy and inexcusable case delays" caused by the court 

and by his counsel. He said his lawyer had been "attending other clients in 

federal court," and that he had made "numerous inquiries and complaints about 

these unacceptable delays" to the attorney. He concluded by stating, "since 

there is no end to the lengthy and inexcusable case delays caused by this court 

and by [my attorney] (in violation of my speedy trial rights), my family and I 

have decided to remove [my attorney] from representing me before this court." 

He also suggested that his venue motion, which had been pending for two 

years and eight months, was "simple" and should have been decided. None of 

the assigned judges entered any orders in response to the omnibus motion and, 

despite defendant's assertions, his attorney continued to represent him.2

 

2

 On March 18, 2016, during oral argument on the State's motion to revoke 
14 A-3443-18

As noted earlier, defendant's motion for change of venue was not granted 

until December 26, 2017, four years and ten months after it was filed. The 

order stated that the reason for the transfer to another vicinage was that since a 

retired, former judge—presumably the vicinage's Chancery judge—was going 

to be a witness in the case, there was a need to "ensure the absence of any 

appearance of impropriety." No other aspect of defendant's omnibus motion 

was addressed by the judge issuing the order. 

As also already noted, after the change in venue, in March 2018 

defendant refiled his omnibus motion, including his speedy trial claim. The 

trial judge in Bergen County denied defendant's omnibus motion on May 24, 

2018.3

 He also set a peremptory date of August 6, 2018, for the trial to begin. 

__________________________

bail based on defendant submitting pro se papers to the court in violation of a 

bail condition, one of the Passaic County judges stated that although he did not 

address defendant's motion for change of venue with an order, he had 

"informally advised [c]ounsel" that he "wasn't going to be granting that" and 

that defendant's filing of motions other than through counsel that had been 

drafted by defendant, who "tr[ied] to have them appear to be submissions of

[c]ounsel," violated the judge's directive from "two years ago" that he would 

not consider pro se submissions, and that defendant's continued attempts to 

represent himself and to obtain a change of venue were "only guaranteed to 

cause this litigation to last much longer." The result of the motion was that 

defendant's bail was revoked and he was referred for a psychiatric evaluation. 

3

 At a conference held by the trial judge in February 2018, defense counsel 

reviewed in detail his serious health issues that prevented him from continuing 
15 A-3443-18

In denying the portion of the omnibus motion concerning defendant's 

speedy trial claim, the judge "acknowledge[d]" that "this matter [had] been in 

the system for too long." He addressed the four Barker 4 factors for 

determining speedy trial issues in some detail. For the first factor, the judge 

found that there was "no doubt that the length of the delay [was] substantial," 

stating that it was "almost unconscionable[] that a matter in the State [c]ourt 

system [was] now in its seventh year or eighth year before being resolved." 

The court found that factor one "weigh[ed] heavily in favor of the defendant." 

Concerning the second factor, the reasons for the delay, the judge stated 

that he had accessed the judiciary's Promis/Gavel System to view a listing of 

all actions taken and proceedings scheduled in this matter. The judge 

determined that between 2012 and 2018, there had been "over 100 scheduled 

proceedings, including status conferences, pre-trial conferences, motions, and 

other matters," and that "at least 80 times" the matter was adjourned at defense 

counsel's request. While the judge acknowledged that the attorney "had health 

issues" and was "very busy" with "trials in many venues," the judge also stated 

__________________________

to represent defendant. Ultimately, defendant was initially allowed to 

represent himself with standby counsel and it was defendant appearing pro se 

with that counsel who argued before the trial judge on May 24, 2018. 

4

 Barker v. Wingo, 407 U.S. 514, 515 (1972).
16 A-3443-18

that defendant "could have had other [c]ounsel" and instead "chose to keep and 

retain" his attorney. Meanwhile, the judge found that "the State never 

requested an adjournment" and was "ready to proceed to trial, certainly within 

six months to a year after" the indictment was issued. The judge concluded 

that "the delay, over seven years, was primarily, if not solely, chargeable to the 

defendant." This factor weighed "if not more" than, "at least equally" to the 

length of the delay. 

As to the third factor, the judge found that defendant had asserted his 

right to a speedy trial and filed a motion concerning that right. For factor four, 

the judge found that the seven-year delay was "prejudicial" to defendant and 

noted that while defendant had not been incarcerated during that time period, 

his "life [had] been on hold for the past seven years." However, the judge 

found again that the fact that defendant was not tried more quickly "was due in 

large part to hi[m] or his . . . attorney." The judge concluded that after 

balancing the four factors, defendant was not "constitutionally denied a speedy 

trial." 

At the hearing on defendant's motion for reconsideration on June 4, 

2018, the judge again said that "seven years is an inordinate delay." Moreover, 

the judge admitted that he had made a mistake as to the number and source of 
17 A-3443-18

the adjournments in the case. The judge stated there were actually seventyfive postponements of the case, and that thirty-one came from defense counsel 

and "one or two, if that many," from the State. The judge found that the 

remainder of the adjournments "were either [c]ourt calendars or for reasons 

unknown." Based on this corrected record, the judge again found that "most of 

the delays were caused by, not the defendant personally, but through his 

counsel." The judge did not change his ruling on the speedy trial motion.

In a June 8, 2018 pro se filing, defendant continued to argue that his 

speedy trial right had been violated. Throughout the remainder of the pretrial 

period, the trial judge maintained that trial would commence on August 6, 

2018. However, on that date, defendant's new, appointed attorney 5 was 

unavailable, and the trial was postponed until January 22, 2019, when it in fact 

commenced. 

B.

It is well-settled that "[t]he right to a speedy trial is guaranteed by the 

Sixth Amendment to the United States Constitution and imposed on the states 

by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas, 

5

 At a July 3, 2018 hearing, the trial judge revoked his earlier order allowing 

defendant to proceed pro se. 
18 A-3443-18

411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386 

U.S. 213, 222-23 (1967)). "The constitutional right . . . attaches upon 

defendant's arrest." Ibid. (alteration in the original) (quoting State v. Fulford, 

349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to 

promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State 

must avoid "excessive delay in completing a prosecution[,]" or risk violating 

"defendant's constitutional right to speedy trial." Ibid. (citation omitted).

The right to a speedy trial is of a somewhat different character than 

others, because "deprivation of the right to speedy trial does not per se 

prejudice the accused's ability to defend himself." Barker, 407 U.S. at 521. 

Indeed, courts have recognized that "[d]elay is not an uncommon defense 

tactic." Ibid. 

The right to a speedy trial must be addressed with a careful analysis of 

the circumstances. Id. at 522. Ultimately, the trial court must weigh society's 

right to have the accused tried and punished against a defendant's right to be 

prosecuted fairly and without oppression. Tsetsekas, 411 N.J. Super. at 10.

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

"is dismissal of the charge." State v. Cahill, 213 N.J. 253, 276 (2013). On 

appeal, "we reverse only if the court's determination is clearly erroneous." 
19 A-3443-18

Tsetsekas, 411 N.J. Super. at 10; see also State v. Merlino, 153 N.J. Super. 12, 

17 (App. Div. 1977).

The four-part test to determine if a defendant's speedy-trial right has 

been violated was announced in Barker, 407 U.S. at 530-33, and adopted by 

our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).6 The test 

requires "[c]ourts [to] consider and balance the '[l]ength of delay, the reason 

for the delay, the defendant's assertion of his right, and prejudice to the 

defendant.'" Tsetsekas, 411 N.J. Super. at 8 (third alteration in original) 

(quoting Barker, 407 U.S. at 530). "No single factor is a necessary or 

sufficient condition to the finding of a deprivation of the right to a speedy 

trial." Id. at 10 (citing Barker, 407 U.S. at 533). Courts are required to 

analyze each interrelated factor "in light of the relevant circumstances of each 

particular case." Ibid.

The Barker factors to be applied by a court are "related," and "must be 

considered together with such other circumstances as may be relevant." 

Barker, 407 U.S. at 533. None of them standing alone is "either a necessary or 

6 We note that effective 2017, although not impacting defendant's claims, 

speedy trial claims are now subject to the considerations set forth in the 

Criminal Justice Reform Act, N.J.S.A. 2A:162-22(a)(2)(a).
20 A-3443-18

sufficient condition to the finding of a deprivation of the right of speedy trial," 

and a court must "engage in a difficult and sensitive balancing process." Ibid. 

Regarding the first factor, the Barker Court characterized the length of a 

delay between arrest and trial as a "triggering mechanism," stating that "[u]ntil 

there is some delay which is presumptively prejudicial," there is no need for a 

court to address the other three factors. Ibid. Here, it cannot be disputed that, 

as the trial judge found, the delay was unreasonable, especially in light of the 

simplicity of charges that arose from the June 28, 2011 near tragic events. See

id. at 530-31; Cahill, 213 N.J. at 265-66 (recognizing that "longer delays can 

be tolerated for serious offenses or complex prosecutions").

The trial judge therefore correctly considered the remaining factors. In 

doing so, the judge was required to recognize "[a]s a matter of logic and 

decency, given that the four factors of Barker call for a balancing of 

considerations, when the delay in concluding a trial is excessively long by any 

measure, as here, the burden upon defendant to satisfy the other factors is 

correspondingly diminished." State v. Farrell, 320 N.J. Super. 425, 453 (App. 

Div. 1999).

Turning to the second factor, the reason for the delay, "different weights 

should be assigned to different reasons." Barker, 407 U.S. at 531. "A 
21 A-3443-18

deliberate attempt to delay the trial in order to hamper the defense should be 

weighted heavily against the government," while "a valid reason, such as a 

missing witness, should serve to justify appropriate delay." Ibid. "A more 

neutral reason such as negligence or overcrowded courts should be weighted

less heavily" against the State. Ibid. However, such a reason may still support 

a finding of a speedy trial violation, "because it is the government's ultimate 

responsibility to prosecute cases in a timely fashion." Cahill, 213 N.J. at 266. 

In Barker, the Court found that seven months of delay by the prosecution 

due to the illness of a key witness were justifiable. Id. at 534. However, four 

years of continuances so that a co-defendant could be tried separately and then 

utilized as a witness were improper, because the prosecution repeatedly failed 

to try the co-defendant "under circumstances that comported with due 

process," lengthening the delay. Ibid. 

In Tsetsekas, 411 N.J. Super. at 12, we found that the prosecution's 

requests for several adjournments due to scheduling issues with witnesses and 

problems providing discovery "were not a deliberate attempt to hamper the 

defense," but nonetheless supported a conclusion that the defendant's speedy 

trial right was violated. We noted that "[a]djournments should generally be 
22 A-3443-18

granted to either party for legitimate reasons," but found that "every rule has 

its limits." Ibid. (emphasis added). 

Delays caused or requested by a defendant will weigh against finding a 

speedy trial violation. State v. Long, 119 N.J. 439, 471 (1990). In Long, the 

Court held that if the State was "entirely or in large part responsible" for the 

delay of 971 days between the defendant's arrest and his trial for murder, "such 

a time delay would violate [the] defendant's right to a speedy trial." Id. at 469. 

However, the defendant had "filed numerous pretrial motions that accounted 

for most of" that time, particularly a challenge to the jury-selection process 

that led to six months delay of the trial. Id. at 469-71. Because there was "no 

indication that the prosecution intentionally delayed the proceedings to gain an 

unfair, tactical advantage," the Court found no speedy trial violation. Id. at

471.

The United States Supreme Court has held that because an attorney acts 

as a defendant's agent, defense counsel's requests for adjournments can be 

generally attributed to defendant. Vermont v. Brillon, 556 U.S. 81, 90-91 

(2009). In Brillon, the Court held that "counsel's failure 'to move the case 

forward' does not warrant attribution of delay to the State," because "the 

individual counsel here acted only on behalf of [the defendant], not the State." 
23 A-3443-18

Id. at 92. The Court stated "[b]ecause 'the attorney is the [defendant's] agent 

when acting, or failing to act, in furtherance of the litigation,' delay caused by 

the defendant's counsel is also charged against the defendant." Id. at 90-91 

(second alteration in original) (quoting Coleman v. Thompson, 501 U.S. 722, 

753 (1991)). 

However, in Brillon, the Court made clear that although the defendant's 

attorneys made requests for adjournments, the primary cause for the delay in 

that case was the defendant's belligerent behavior and conflict with each of his 

consecutively assigned counsel. He repeatedly fired and even threatened his 

appointed counsel, which caused delay because replacement counsel had to be 

appointed several times. The Court summarized the situation as follows:

[Defendant's] strident, aggressive behavior with regard 

to [his first attorney] whom he threatened, further 

impeded prompt trial and likely made it more difficult 

for the Defender General's office to find replacement 

counsel. Even after the trial court's warning regarding 

delay, [defendant] sought dismissal of yet another 

attorney . . . . Just as a State's "deliberate attempt to 

delay the trial in order to hamper the defense should 

be weighted heavily against the [State]," Barker, 407 

U.S.[] at 531, . . . so too should a defendant's 

deliberate attempt to disrupt proceedings be weighted 

heavily against the defendant. Absent [defendant's] 

deliberate efforts to force the withdrawal of [two of 

his attorneys], no speedy-trial issue would have arisen. 

The effect of these earlier events should have been 

factored into the court's analysis of subsequent delay.
24 A-3443-18

[Brillon, 556 U.S. at 93-94 (fifth alteration in 

original).]

Based on the defendant's actions that prompted his various attorneys to 

seek delays, the Court reversed "[t]he Vermont Supreme Court[, which it 

found] erred in attributing to the State delays caused by 'the failure of several 

assigned counsel . . . to move his case forward, . . . and in failing adequately to 

take into account the role of [defendant's] disruptive behavior in the overall 

balance." Id. at 91-92 (citation omitted). Moreover, the primary danger that 

the Court sought to address in Brillon in the particular context of a speedy trial 

claim, was by attributing a public defender's delays to the State would provide 

a public defender with a perverse incentive to drag his or her feet and request 

frivolous continuances in the hopes of getting charges dismissed on speedy 

trial grounds. Neither the facts nor the policy implications that were key to the 

Court's decision in Brillon are present in the current case.

In contrast, before Brillon was decided, where delays were attributable 

to the court, we found in Farrell, 320 N.J. Super. at 449-50, that two 

postponement requests from defense counsel due to scheduling issues 

involving counsel's other cases were not "fairly chargeable to [the] defendant." 

Id. at 449. There, we stated that delays caused by the court itself may also be 
25 A-3443-18

weighed in the analysis. Id. at 450-51. "As a general rule in applying the 

evaluative features of the four-part test of Barker in fundamental fairness 

terms, delays 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." Id. at 451 (quoting Barker, 407 U.S. at 531). "When there is no 

reasonable explanation or justification for the excessive delay, speedy trial 

principles have been violated." Id. at 453.

For example, in Farrell, the municipal court adjourned the case for 

extended periods multiple times even after there had already been significant 

delays. Ibid. Though the matter involved simple charges of driving while 

intoxicated and failure to maintain a single lane, the court took 174 days to 

begin addressing the defendant's motions and did not begin the testimonial 

phase of the matter until it was 312 days old. Id. at 451. The court took nearly 

a year to complete the testimonial phase due largely to its own adjournments. 

Ibid. For example, when the matter was 635 days old, the court adjourned it 

"because of other, undefined 'administrative matters' that diverted [its] 

attention." Ibid. We concluded that the defendant's speedy trial right was 

violated because the delays were "plainly excessive" and largely due to "the 
26 A-3443-18

municipal court's patent failure to prepare itself to try the matter expeditiously 

and shepherd it to resolution efficiently." Id. at 452-53.

As to the third Barker factor, a defendant's assertion of the speedy trial 

right "is entitled to strong evidentiary weight in determining whether the 

defendant is being deprived of the right." Barker, 407 U.S. at 532-33. For 

example, if the record shows that a defendant not only failed to object to 

continuances requested by the government but "hoped to take advantage of the 

delay," denial of a speedy trial motion is appropriate. Id. at 535-36. However, 

there is no bright-line rule that a defendant who fails to demand a speedy trial 

has waived the right. Id. at 528-29. 

The fourth Barker factor, prejudice to the defendant, should be assessed 

in the light of the interests the speedy trial right was designed to protect. 

Barker, 407 U.S. at 532. These include "prevention of oppressive 

incarceration, minimization of anxiety attributable to unresolved charges, and 

limitation of the possibility of impairment of the defense." Cahill, 213 N.J. at 

266. The last of these is considered the most serious, as it goes "to the 

question of fundamental fairness." Szima, 70 N.J. at 201. However, 

"significant prejudice" may also be found if a delay causes a "loss of 

employment or other opportunities, humiliation, the anxiety in awaiting 
27 A-3443-18

disposition of the pending charges, the drain in finances incurred for payment 

of counsel or expert witness fees and the 'other costs and inconveniences far in 

excess of what would have been reasonable under more acceptable 

circumstances.'" Tsetsekas, 411 N.J. Super. at 13 (quoting Farrell, 320 N.J. 

Super. at 452).

Applying those factors here, as noted, the trial judge found the delay was 

inordinate, defendant asserted his speedy trial right and that he was prejudiced. 

However, the judge attributed the delays primarily to defense counsel and to 

the court, not the State or defendant individually. Yet the judge concluded that 

the delay would be weighed heavily against defendant because he could have 

pursued obtaining new counsel. That conclusion ignored the fact that 

defendant repeatedly raised the issue of delay, starting in at least 2014 and in 

2015 his need to secure new counsel, in submissions that no judge at that time 

ever addressed.

The trial judge's conclusion also glossed over the State's and the court's 

role in what happened here. We agree there is no record evidence that much of 

the delay was intentionally or directly caused by the prosecution. However, 

there is also no evidence in the record that the State attempted to move things 

along faster. As the Court stated in Barker, "[a] defendant has no duty to bring 
28 A-3443-18

himself to trial; the State has that duty as well as the duty of insuring that the 

trial is consistent with due process. Moreover . . . society has a particular 

interest in bringing swift prosecutions, and society's representatives are the 

ones who should protect that interest." Barker, 407 U.S. at 527 (footnotes 

omitted). And, the prosecution shares its "primary burden [with] the courts . . . 

to assure that cases are brought to trial." Id. at 529.

In People v. Williams, 315 P.3d 1 (Ca. 2013), cert. denied, 572 U.S. 

1140 (2014), the California Supreme Court concluded that a delay in bringing 

a matter to trial was not attributable to the trial court. But, it described a trial 

court's duty to shepherd a criminal case to trial as follows:

Thus, the trial court has an affirmative constitutional 

obligation to bring the defendant to trial in a timely 

manner. And to that end, it is entirely appropriate for 

the court to set deadlines and to hold the parties 

strictly to those deadlines unless a continuance is 

justified by a concrete showing of good cause for the 

delay. The trial judge is the captain of the ship; and it 

goes without saying that the ship will go in circles if 

the crew is running around the deck with no firm 

marching orders. 

We do not find the trial court directly responsible for 

the delay in this case. We caution, however, that trial 

courts must be vigilant in protecting the interests of 

the defendant, the prosecution, and the public in 

having a speedy trial.
29 A-3443-18

[Id. at 40 (emphasis added) (citation omitted) (quoting 

State v. Couture, 240 P.3d 987, 1009-10 (Mont. 

2010)).].

Here, there was very little shepherding of defendant's case to trial and 

the resulting delay was inordinate. Moreover, the delay ultimately resulted in 

his attorney of choice becoming unavailable to try the case because of 

counsel's progressing illness that by 2018 made it impossible for him to 

continue to represent defendant as he explained to the judge in detail at the 

March 2018 conference. 

Also, and significantly, it defies all reason as to why this matter 

remained in the original venue when it was clear from the start that a then 

sitting judge from the same vicinage would at the least be likely to be a 

witness. Defendant recognized this reality at least by 2013 and pursued a 

change of venue that was not addressed and granted until 2017. Moreover, in 

the intervening years, while defendant certainly did not behave as a model 

litigant, bombarding the court with various submissions in violation of his bail 

conditions and pursuing his own unsupported defenses, he clearly only sought 

a quick resolution of his case. Yet nothing happened, motions were left 

unresolved and no trial was ever scheduled, or if it was, it never took place 

until 2019.
30 A-3443-18

We are sympathetic to the judges in the Passaic vicinage who have to 

deal daily with a significant volume of complex criminal cases. The vicinage 

is home to highly populated areas giving rise to a high rate of serious crime. 

Moreover, we commend them for their compassion. They, like all judges, 

strive to deal with real-life problems confronting litigants and their attorneys, 

which often understandably require postponement of scheduled matters. 

People get sick. Lawyers have conflicts. 

Having said that, we can discern no reason why this matter languished so 

long, other than the various judges being (correctly) sympathetic to defendant's 

counsel's health issues and his need to otherwise seek accommodations. But 

where, as here, a defendant repeatedly asserts his right to a speedy trial, even 

those admirable considerations by the judges had to yield, especially 

considering the simple nature of this matter as compared to many of the more 

complex pending cases on the court's docket. As we said in Tsetsekas, every 

rule does have its limits and here none were recognized, which prevented the 

matter from being tried "expeditiously and shepherd[ed] . . . to resolution 

efficiently." Farrell, 320 N.J. Super. at 452-53.

We commend the trial judge for hitting the ground running when this 

matter reached his vicinage in 2018. However, we must part company with his 
31 A-3443-18

conclusion in this matter that defendant's right to a speedy trial was not 

violated. The delays caused by defense counsel's personal needs were 

certainly not the result of the attorney acting as his client's agent where the 

client made it clear, not always in the most appropriate terms, that all he 

wanted was for the matter to be brought to conclusion sooner than later, which 

was in everyone's best interest. 

Under these circumstances, we are constrained to vacate defendant's 

conviction and dismiss the indictment. For that reason, we need not address 

any of defendant's remaining arguments.

Reversed.