NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0308-19T6

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT A. PALEY,

Defendant-Appellant.

__________________________

Argued October 21, 2019 – Decided 

Before Judges Sabatino, Sumners and Geiger.

On appeal from an interlocutory order the Superior 

Court of New Jersey, Law Division, Middlesex 

County, Indictment No. 18-11-1495.

Whitney Faith Flanagan, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Whitney Faith 

Flanagan, of counsel and on the brief).

Patrick F. Galdieri, II, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Christopher L.C. Kuberiet, Acting 

Middlesex County Prosecutor, attorney; Patrick F. 

Galdieri, II, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, J.A.D.

November 6, 2019

APPROVED FOR PUBLICATION

November 6, 2019

APPELLATE DIVISION
A-0308-19T6 2

In this interlocutory appeal, we are asked to determine whether the trial 

court's August 28, 2019 order violated N.J.S.A. 2A:162-22(a)(2)(a), the speedy 

trial requirements of the Criminal Justice Reform Act (CJRA), N.J.S.A. 

2A:162-15 to -26, and Rule 3:25-4(c)(1). The order excluded 137 days –

August 19, 2019 to January 2, 2020 – from the October 15, 2019 speedy trial 

deadline for defendant Vincent A. Paley. Defendant is consequently confined 

in jail until his scheduled January 2, 2020 trial date.1

In his single point merits brief, defendant argues: 

THE COURT ERRED IN ORDERING 137 DAYS OF 

EXCLUDABLE TIME OVER DEFENSE 

OBJECTION AND WITHOUT STATUTORY 

AUTHORITY.

Because the record does not support the court's excludable time order, we 

reverse and order defendant be released pending his trial. 

I.

Initially, we discuss three separate pretrial conferences – two in the 

morning session and one in the afternoon session – all occurring on August 19, 

which culminated in the order in question. We also discuss some other relevant 

court proceedings leading up to that order.

 

1

 For the sake of convenience, hereafter, we do not state the year of the 

pretrial conference, excludable time order, speedy trial date, and trial date. We 

mention just the dates. 
A-0308-19T6 3

Proceedings Prior to August 19

On November 7, 2018, defendant and his codefendant Edward F. 

Figueroa were indicted for second-degree conspiracy to commit robbery, firstdegree robbery, second-degree robbery, second-degree aggravated assault, and 

third-degree theft. At that time, defendant was not confined to county jail due 

to a previous pretrial release order. However, when he failed to appear for his 

arraignment on November 26, a bench warrant was issued for his arrest. 

On January 10, 2019, the bench warrant was executed upon defendant's 

arrest. The State's motion to revoke defendant's pretrial release and keep him 

confined pending his trial was granted on January 28. Three subsequent court 

orders, all reflecting defendant's consent, excluded a total of ninety-nine days 

from defendant's speedy trial date in accordance with N.J.S.A. 2A:162-

22(b)(1)(l), which allows delay for "good cause," and Rule 3:25-4(d)(2)(H), 

which allows delay resulting from "unreasonable acts or omissions of the 

defendant."

August 19 Proceedings

A. First morning appearance 

Defendant, who was in custody, appeared for his pretrial conference 

with counsel. After advising the court that a plea agreement could not be 

reached, counsel reminded the court she needed additional time to provide the 
A-0308-19T6 4

State with an expert report concerning cell phone records. The court expressed 

concern regarding the importance of an expert report, and asked defendant if 

he was going to sign the pretrial memorandum to go to trial. Defendant, who 

was being represented by the Public Defender, replied that his mother was 

going to hire private counsel after his court appearance and he would sign the 

pretrial memorandum thereafter. 

It was then mentioned that Figueroa, whose pretrial conference was also 

scheduled that morning, was not in the courtroom. Figueroa's counsel advised 

the court Figueroa was in a drug rehabilitation program, which had not yet 

transported him to court that morning, and he also wanted to go to trial. 

Noting defendant and Figueroa would be tried together, and Figueroa's 

counsel had to appear before another judge that morning, the court excused 

everyone with the direction to come back in the afternoon in order to finalize 

and execute pretrial memorandums. Before leaving, defendant's counsel 

indicated again that she needed more time to secure her expert's report and 

requested another conference to give her more time to do so. Remarking 

defendant was arraigned on "December [18]"2and wanted to go to trial, the 

court retorted that a trial date would be set irrespective of outstanding 

 

2

 It appears the court misspoke because, as noted above, defendants' 

arraignment occurred on November 28, 2018.
A-0308-19T6 5

discovery. The court stated, "[defendants] are yakking about a trial, let's get to 

a trial. All that cell phone stuff, [the attorneys] can resolve before trial. 

Exchange [d]iscovery, do what you got to do." No possible trial date was 

mentioned by the court during the colloquy.

B. Second morning appearance

At some point later that morning, Figueroa appeared in court. His 

counsel was present. After learning Figueroa would not accept the State's last 

plea offer and wanted to go to trial, which was expected to take five days to 

complete, the court stated the trial date would be January 2. The prosecutor 

promptly remarked that a January 2 trial date created an "issue" because 

defendant and his counsel were not in the courtroom at the time and defendant 

had an October 15 speedy trial date. The court replied, "[w]ell it's the only 

time we have to try this case." At which point the prosecutor interjected, 

"[w]ell then [j]udge[,] the State would then ask for excludable time, given the 

[c]ourt's calendar, as well as the outstanding expert report that the State has 

not received, and would need to evaluate and perhaps obtain its own expert 

witness. So I would ask for excludable time until January [2]." When 

codefendant's counsel mentioned defendant's counsel was not present, the 

court replied it would "deal with it."
A-0308-19T6 6

C. Afternoon session

The court advised defendant that Figueroa's trial was set for January 2, 

and that would be defendant's trial date as well, unless he reached a plea 

agreement. Defendant stated he wanted to review the pretrial memorandum 

with "another attorney." The court replied that defendant had the right to hire 

a new attorney, which is why it gave him a January 2 trial date, but he needed 

to sign the pretrial memorandum that day. When defendant objected to 

extending the trial date, the court declared it was excluding the time from his 

speedy trial date due to the possibility he would hire a new attorney and the 

outstanding cell phone expert discovery his current counsel wanted to provide 

the State.

Next, during a brief discussion clarifying the State's plea offer, 

defendant's counsel objected to the court making August 19, 2019 through 

January 2, 2020 excludable time. Counsel argued that since defendant was 

signing a pretrial memorandum, outstanding expert discovery should not be a 

reason for excludable time. The court reiterated that since defendant wanted to 

hire private counsel, the January 2 trial date would afford new counsel the time 

needed to be ready. Counsel responded that defendant had not begun the 

process of hiring a new attorney and that she would comply with discovery 
A-0308-19T6 7

rules. The Court was unpersuaded; defendant was required to execute the 

pretrial memorandum, which set trial for January 2. 

The court confirmed its oral decision on August 28, issuing an order 

excluding a total of 137 days from defendant's speedy trial date under N.J.S.A. 

2A:162-22(b)(1)(d), stating only that the excluded time was "[t]o allow time 

for def[endant] to hire [a private attorney] to prepare for trial." We thereafter 

granted defendant's motion for leave to appeal on an expedited basis. 

II.

A trial court "must consider both the speedy trial statute and the speedy 

trial rule" when "determining what time is excludable." State v. Washington, 

453 N.J. Super. 164, 195 (App. Div. 2018). The CJRA requires that a 

defendant "shall not remain detained in jail for more than 180 days" from an 

indictment's return – not counting excludable time – "before commencement of 

the trial." N.J.S.A. 2A:162-22(a)(2)(a). There are thirteen periods that "shall 

be excluded" under N.J.S.A. 2A:162-22(b)(1) when the trial court computes 

the date the trial must start:

(a) The time resulting from an examination and 

hearing on competency and the period during which 

the eligible defendant is incompetent to stand trial or 

incapacitated;

(b) The time from the filing to the disposition of an 

eligible defendant's application for supervisory 

treatment pursuant to N.J.S.2C:36A-1 or N.J.S.2C:43-
A-0308-19T6 8

12 et seq., special probation pursuant to N.J.S.2C:35-

14, drug or alcohol treatment as a condition of 

probation pursuant to N.J.S.2C:45-1, or other pretrial 

treatment or supervisory program;

(c) The time from the filing to the final disposition of 

a motion made before trial by the prosecutor or the 

eligible defendant;

(d) The time resulting from a continuance granted, in 

the court's discretion, at the eligible defendant's 

request or at the request of both the eligible defendant 

and the prosecutor;

(e) The time resulting from the detention of an eligible 

defendant in another jurisdiction provided the 

prosecutor has been diligent and has made reasonable 

efforts to obtain the eligible defendant's presence;

(f) The time resulting from exceptional circumstances 

including, but not limited to, a natural disaster, the 

unavoidable unavailability of an eligible defendant, 

material witness or other evidence, when there is a 

reasonable expectation that the eligible defendant, 

witness or evidence will become available in the near 

future;

(g) On motion of the prosecutor, the delay resulting 

when the court finds that the case is complex due to 

the number of defendants or the nature of the 

prosecution;

(h) The time resulting from a severance of 

codefendants when that severance permits only one 

trial to commence within the time period for trial set 

forth in this section;

(i) The time resulting from an eligible defendant's 

failure to appear for a court proceeding;
A-0308-19T6 9

(j) The time resulting from a disqualification or 

recusal of a judge;

(k) The time resulting from a failure by the eligible 

defendant to provide timely and complete discovery;

(l) The time for other periods of delay not specifically 

enumerated if the court finds good cause for the delay; 

and

(m) Any other time otherwise required by statute.

Our court rules mimic the CJRA. Rule 3:25-4(c)(1) similarly precludes 

detaining a defendant for more than 180 days between the return of an 

indictment and the start of trial, "not counting excludable time" for reasonable 

delays "as set forth in paragraph (i) of this rule." Rule 3:25-4(i) describes the 

trial court's authority to grant excludable time in words identical to N.J.S.A. 

2A:162-22(b)(1) except the rule also declares that the provision allowing for 

"other periods of delay not specifically enumerated" be narrowly construed. R.

3:25-4(i)(12).

In applying these principles to the factual circumstances surrounding the 

August 19 pretrial conference for defendant and his codefendant, we agree 

with defendant that the court should not have excluded 137 days from his 

speedy trial date and he should be released from confinement pending his trial. 

At the initial morning session for the pretrial conference, there were 

multiple competing concerns the court needed to address. Defendant could not 
A-0308-19T6 10

reach a plea agreement with the State. Defendant expressed an interest in 

hiring a private attorney to evaluate his trial prospects and did not want to 

execute his pretrial memorandum. Defendant's counsel was waiting for an 

expert report, which the court viewed as having minimal, if not insignificant, 

value at trial. The court wanted to schedule a trial date but could not do so 

because Figueroa, with whom defendant would be tried with, had not yet 

appeared for the conference. Thus, the conference, with all parties present, 

was continued to the afternoon. 

Figueroa, however, appeared later that morning session and the court 

conducted his pretrial conference without defendant. Figueroa also could not 

reach a plea agreement with the State, thus he executed a pretrial memorandum 

in which the court set a January 2 trial date, the earliest available trial date on 

the court's calendar. Aware that the trial date would result in defendant's 

release from jail due to his October 15 speedy trial date, for which the State 

sought an excludable time order, the court stated it would deal with the issue 

when defendant returned that afternoon for the continuation of his pretrial 

conference. 

That afternoon, the court directed defendant to execute the pretrial 

memorandum with a January 2 trial date. Over defendant's objection, the court 

advised defendant that the next 137 days prior to trial would be excludable 
A-0308-19T6 11

time, thereby keeping him confined pending trial. The court ruled this was 

because defendant wanted to go to trial, wanted to hire private counsel, and his 

current counsel needed to provide outstanding discovery. 

While we appreciate the court's need to schedule a two-defendant trial 

amidst what appears to be a full calendar, the record before us does not support 

the reasoning the court expressed on August 19, nor set forth in the confirming 

August 28 order, that defendant needed time to hire a new attorney. 

Defendant, like his counsel, was fully aware of his speedy trial date and never 

requested trial be delayed beyond his speedy trial date due to the need to hire 

or consult with a new attorney. Counsel likewise did not seek a trial date after 

October 15, to enable a new attorney to represent defendant. Only if 

defendant's mother had engaged private counsel should the court have 

considered its impact on a trial date. 

Turning to defendant's plan to provide a cell phone expert report to the 

State after the pretrial conference, the court's oral decision mentioned this 

outstanding discovery as a reason for the 137-days excludable time, but the 

court's order does not. Although the order does not conflict with the oral 

decision, we will consider the latter. See generally Taylor v. Int'l Maytex 

Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002) ("Where 
A-0308-19T6 12

there is a conflict between a judge's written or oral opinion and a subsequent 

written order, the former controls.").

Importantly, defense counsel argued her need to provide an expert report 

to the State, post conference, should not be considered in the excludable time 

determination because she would comply with the discovery rules. Our rules 

require a defendant to provide the State with expert information, including but 

not limited to any report, at least thirty days prior to trial. R. 3:13-3(b)(2)(E); 

see also, Washington, 453 N.J. Super. at 187 (holding when an issue of 

discovery arises, "courts should consider [it] separately from speedy trial 

issues" as it is "improper to impose a discovery sanction based on a perceived 

failure to comply with the speedy trial statute."). 

Based upon our review of the record, it appears the primary factor in 

determining the excludable time was revealed in the court's initial comment –

made without defendant or his counsel present in the courtroom – that the trial 

had to be scheduled for January 2 because "it's the only time we have to try 

this case." Thereafter, the possible hiring of a new defense attorney and 

pending discovery to the State were put forth by the court as issues affecting a 

trial date. However, applying those two reasons to order excludable time was 

premature. A new attorney had not been hired, nor was there any tangible 

indication it would occur, and a trial date beyond the October 15 speedy trial 
A-0308-19T6 13

date was not requested or claimed to be necessary to allow for additional trial 

preparation time. There was no indication that pending discovery would cause 

either party to be unprepared to try the case by the speedy trial date. Since 

neither issue had impacted the court's ability to start the trial, they did not 

support the court's excludable time rationale. 

We find it significant that the court's order cites N.J.S.A. 2A:162-

22(b)(1)(d), which allows for the exclusion of time at the defendant's or the 

joint parties' request for a granted continuance, so that defendant can hire 

private counsel. However, as defendant contends, he did not request a 

continuance. Further, in terms of the court's reliance upon its trial calendar 

until January 2, there were no findings of fact sufficient to establish excludable 

time under another subsection of N.J.S.A. 2A:162-22(b)(1) despite defendant's 

objection to the continuance. N.J.S.A. 2A:162-22(b)(1)(l) contains a catch-all 

provision designating as excludable time "[t]he time for other periods of delay 

not specifically enumerated if the court finds good cause for the delay." But, 

the accompanying rule, Rule 3:25-4(i)(12), adds "that this provision shall be 

narrowly construed." The record fails to indicate why defendant's trial could 

not preempt another case on the court's calendar, or why another court in the 

vicinage could not conduct defendant's trial prior to his speedy trial date. 
A-0308-19T6 14

Hence, based upon the record before us, we are constrained to agree with 

defendant that the 137-days excludable time is contrary to the CJRA and 

related court rules. Defendant shall be released pending trial, which is 

currently scheduled for January 2. Our decision does not preclude the State 

from making future applications to confine defendant or impose conditions of 

release that are consistent with the law. 

Our disposition is stayed for three business days, sua sponte, to enable 

the State to seek immediate relief from the Supreme Court if it so chooses.

Reversed.