(Defendant's name removed)

(Defendant's address removed)

Phone: (Defendant's number removed)

Email: (Defendant's email removed)

(Date removed)

MUNICIPAL COURT OF (REMOVED), COUNTY OF (REMOVED)

Defendant, charged with violation of N.J.S.A. 39:4-98 hereby moves to dismiss the charge. Defendant will show the Court that the Sixth and Fourteenth Amendments of the US Constitution guarantees of Due Process and Speedy Trial, further supported by Article 1, 10th Right and Privilege of the New Jersey State Constitution have been violated in this case.

I. LENGTH OF DELAY: 296 days as of the upcoming court date of 10/26/2016. When deciding the reasonableness of this delay, please consider other US States and the lengths of time for traffic infractions that violate Defendant’s right to a Speedy Trial including New York at 30 days (CPL 30.30), California at 45 days (PC 1382(a)(3)), and Florida at 180 days (TCR 6.325).

STATE OF NEW JERSEY Plaintiff

vs.

(DEFENDANT'S NAME REMOVED) Defendant

SUMMONS No.: (REMOVED)

ISSUED: (DATE REMOVED)

MOTION FOR DISMISSAL: SPEEDY TRIAL

II. REASON FOR DELAY: State has caused the majority of delay by failing to make timely disclosure of evidence, misleading the Court, waiting 2 months to follow a Court order, and hindering the Defendant’s Court ordered review of evidence. Also, the Municipal Court schedule itself has caused significant delay.

• The State broke NJ Court Rule 7:7-7(g) by taking 35 days to initially respond on 4/27/16 to the discovery request of 3/23/16.

NJ Court Rule 7:7-7(g): “The municipal prosecutor shall respond to the discovery request in accordance with paragraph (b) of this rule within 10 days after receiving the request.”

• On 5/25/16, the State, without authority or reason, misled the Court and caused considerable delay. Lt. (Removed) reported on record that the State could not release the radar operating manual PDF file to the Defendant because it is copyrighted material.

There can be no interpretation of copyright law that prevents the State from transferring the PDF file of the radar operating manual. The use of this copyrighted material is for nonprofit research to prepare an adequate defense.

17 U.S. Code § 107 - Limitations on Exclusive Rights: Fair Use - “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

PLEASE NOTE, the Rules Governing Practice in the Municipal Courts of New Jersey specifically provide for the transfer of this material:

NJ Court Rule 7:7-7(b)(6): “…[Defendant] shall be provided with copies of... electronically stored information…”

NJ Court Rule 7:7-7(g): “…the parties may provide discovery pursuant to paragraphs (a), (b), (c), and (h) of this rule through the use of CD, DVD, e-mail, internet or other electronic means. Documents provided through electronic means shall be in PDF format.”

• The State took an unreasonable amount of time to follow a Court order. On 5/25/16, Lt. (Removed) was ordered by the Court to email MPH Industries to gain permission for the release of the radar operating manual PDF file.

Over 2 months later, on 7/27/16, Lt. (Removed) finally confirmed with the Defendant that he contacted MPH Industries.

• The State has not shown due diligence in making government Discovery available to the Defendant in a timely manner. Lt. (Removed) did not return Defendant’s emails or phone calls from 5/23/16 to 7/12/16.

Lt. (Removed) suggested a course of action, which the Court was aware of, and which the Defendant followed in good faith to obtain Discovery from MPH Industries: MPH Industries was contacted on 5/23/16 in an effort to get the Radar Operating Manual PDF file, but (Removed) at MPH Industries said she wouldn’t release the file unless a police officer authorized it and to have Lt. (Removed) contact her.

Defendant emailed Lt. (Removed) multiple times for the purpose of asking him to contact MPH Industries regarding the release of the PDF file. Defendant emailed Lt. (Removed) on 5/23/16, 5/31/16, 6/9/16, 6/14/16, 6/20/16, 6/29/16, 7/2/16, and 7/10/16 without a single reply.

Defendant also made at least 6 unanswered phone calls to Lt. (Removed) from 5/23/16 to 7/10/16 in an effort to obtain the PDF file.

Defendant reported to the (Removed) Police Station on or about 7/9/16 to find out why Lt. (Removed) was not answering her calls or emails.

On 7/13/16, Lt. (Removed) finally called the Defendant back, apologized for not calling sooner, and said he would call the Defendant the following week with information concerning Discovery.

But Lt. (Removed) did not call the following week.

Lt. (Removed) finally emailed Defendant 7/27/16 saying he authorized MPH Industries to transfer the PDF file.

PLEASE NOTE, Defendant argues it is the Municipal prosecutor’s duty to provide access to evidence. The State has the burden of making Discovery available to the Defendant.

NJ Court Rule 7:7-7(a): “…[the municipal prosecutor] shall be responsible for making government discovery available to the defendant.”

• The State did not make a diligent effort to comply with an ordered and legally proper Discovery request, causing further delay. On 8/24/16, Lt. (Removed) was ordered by the Court to make the radar operating manual and training manual available to the Defendant for review at the Police Station on the day of 9/7/16.

The State limited, controlled, and made unreasonable the review of evidence to the Defendant on 9/7/16. Specifically, Lt. (Removed) scrolled through electronically stored manuals on his computer while Defendant was prevented from touching the computer and forced to view the material from the opposite side of the desk.

• The Municipal Court, having only 12 calendar dates a year, has limited scheduling opportunities and cannot reasonably cope with delays caused by opposing parties.

State Vs Farrell (1999): “As a general rule in applying the evaluative features of the fourpart 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."

III. ASSERTION: Defendant continues to assert her right to a speedy trial.

IV. PREJUDICE: Defendant has lost wages, arranged for babysitters, missed her daughter’s musical program, and felt a great stress because of this unresolved charge.

Moore Vs Arizona (1973): Prejudice can be found from a variety of factors including employment interruptions, anxieties concerning unresolved prosecution, and the drain on finances.

WHEREFORE, Defendant prays unto this Court that the Motion for Dismissal be granted.

I certify that a copy of this Motion has been mailed or delivered to the Municipal Court and also to the Prosecuting Attorney, within the deadlines specified by the Rules of Court.

I certify that the foregoing statements made by me are true. I am aware that if any of these statements made by me are not true, I am subject to punishment.

____________________________ __________

(Name Removed), Defendant Date

Section II Reason for Delay:

Ms. (Removed) claims that the State failed to make timely disclosure of evidence, misleading the Court, waiting two (2) months to follow a Court order, and hindering the defendant’s Court ordered review of evidence.

• Ms. (Removed) claims that it took 35 days to respond to her request for Discovery. The actual amount of days was 21 business days. Rule 7:7-7(2)(g) states that the prosecutor shall respond to the Discovery request in accordance with paragraph (b) of this rule within 10 days after receiving this request. The rule is not specific on whether days are actual or business days. The first email, with attachments, was sent April 21, 2016. Ms. (Removed) called the day of Court (April 27, 2016) and claimed that she did not receive the email. I again emailed her on April 27. While every effort was made to respond to Ms. (Removed) request in accordance to Rule 7:7- 7(2)(g) within the ten (10) days, it is not always possible to do so. We are a small department and this officer is assigned many different duties that may result in a Discovery request taking a little longer to fulfill. I made every effort to ensure that Ms. (Removed) received her Discovery in such a time that would allow her to properly prepare her defense for her April 27th Court appearance.

• Ms. (Removed) claims that on 5/25/2016, the State, without authority or reason, misled the Court and caused considerable delay, specifically by Lt. (Removed) reporting on record that the State could not release the radar operating manual PDF file to the defendant because it was copyrighted material. There was no attempt to mislead the Court. It is the practice of this Police Department, as well as others, to allow defendants, by appointment, to come in and review the manuals. This police department will not release copyrighted materials protected by Federal Copyright laws without written permission from the manufacturer. Attempts were made to contact MPH but our calls were never returned. Ms. (Removed) references 17 U.S. Code 107 and New Jersey Court Rules regarding the method of release of Discovery records. When possible, all records are emailed in PDF format.

• Ms. (Removed) claims that the State took an unreasonable amount of time to follow a Court order by not emailing MPH Industries to gain permission for the release of the radar operating PDF file. I don’t recall the Court issuing such an order in any of the Court proceedings. Rather, I volunteered to make the call after Ms. (Removed) stated that they would not release the manuals to her without speaking with me first. At least three calls were placed to MPH Industries but the calls were never returned.

• Ms. (Removed) claims that the State has not shown due diligence in making Discovery available to the Defendant in a timely manner by Lt. (Removed) not returning the Defendant’s emails or phone calls from 5/23/16 to 7/12/16. All relevant Discovery was emailed to Ms. (Removed) on April 21, 2016 and Ms. (Removed) was called and emailed and advised of the progress of the calls made to MPH Industries. Ms. (Removed) claims that she emailed Lt. (Removed) on 5/23/16, 5/31/16, 6/9/16, 6/14/16, 6/20/16, 6/29/16, 7/2/16, and 7/10/16. A review of the email account shows that Ms. (Removed) only sent two emails on 5/23/16 and 5/31/16.

• Ms. (Removed) claims that the State did not make a diligent effort to comply with an order and legally proper Discovery request causing further delay. On 8/24/16, Lt (Removed) was ordered by the Court to make the radar operating manual and training manual available to the Defendant for review at the police station on 9/7/16. On August 24, 2016, during the scheduled (Removed) Municipal Court session, Judge (Removed) ordered Lt. (Removed) and Ms. (Removed) to agree upon a date that Ms. (Removed) could come in and review the radar manuals. September 7, 2016 was agreed upon by both parties. Ms. (Removed) arrived at the station at approximately 11:00am and was brought into the squad room and sat at the patrol desk. I positioned the computer, which is quite large, monitor in such a manner that Ms. (Removed) was able to read the screen. Prior to reviewing the manuals, I asked Ms. (Removed) if she could see the screen and she said, “Yes”. Ms. (Removed) also came across the desk several times to get a closer look. I again offered to reposition the monitor and Ms. (Removed) said that she was fine. Ms. (Removed) asked several questions about the material in the manual and I answered them and Ms. (Removed) stated that she understood. It is true that Ms. (Removed) was not allowed to touch the monitor as there are confidential files stored on the computer but was not forced to view the manuals from the opposite side of the desk. At 11:30am and after having her questions answered and reviewing the radar manuals, Ms. (Removed) stated that she had to leave to pick up her daughter. Ms. (Removed) asked if I would be around and available later in the day and I advised her that I would be around to approximately 4:30pm. Ms. (Removed) never called or returned to the station that day. However, Ms. (Removed) did call on September 9, 2016 and requested that the manuals be emailed to her. I advised her again that I would not email them to her and reminded her that she reviewed them on Septemeber 7th and asked if she wanted to come back in to review the material and she declined.

It should be noted that Ms. (Removed) expressed to me during other Court sessions of her intent to carry this on until the Court just dismissed the matter and delayed the matter by not scheduling time earlier in the year to come in and review the radar training manuals as offered to her in the April 21, 2016 email.

STATE RESPONSE

(Defendant's name removed)

(Defendant's address removed)

Phone: (Defendant's number removed)

Email: (Defendant's email removed)

(Date removed)

MUNICIPAL COURT OF (REMOVED), COUNTY OF (REMOVED)

I. LENGTH OF DELAY: STATE DID NOT CHALLENGE

STATE OF NEW JERSEY Plaintiff

vs.

(DEFENDANT'S NAME REMOVED) Defendant

SUMMONS No.: (REMOVED)

ISSUED: (DATE REMOVED)

RESPONSE TO ANSWER MOTION FOR DISMISSAL: SPEEDY TRIAL

II. REASON FOR DELAY:

1. State admits to breaking Court Rule 7:7-7(g) – (Taking more than 10 days to respond to a Discovery Request).

A small or busy Police Department does not remove the Prosecutor's burden of following the Rules of Court.

By Court Rules, the State actually took 63 days (10 days maximum) to respond to the Discovery Request served 2/24/16.

Court Rule 1:3-1 specifies actual days, not business days.

In a related matter, the State took 34 days to answer this current Speedy Trial Motion, waiting until the Hearing Date of 11/16/16 to respond and unnecessarily delaying the case an additional month.

2. Lt. (Removed)’s admitted Police Department Policy misinterprets Federal Law and is in direct violation of New Jersey Rules of Court. 7:7-7(b)(6) – (Defendant shall be provided with copies of electronically stored information).

3. Lt. (Removed) has stated he does not recall being ordered to email MPH industries. The transcript of 5/25/16 will confirm the order.

4. STATE’S DUE DILIGENCE IN PROVIDING DISCOVERY: NO ADDITIONAL ARGUMENTS.

5. REASONABLE REVIEW OF EVIDENCE ON 9/7/16: NO ADDITIONAL ARGUMENTS.

6. STATE IS RESPONSIBLE FOR DELAYS BY THE COURT ITSELF: STATE DID NOT CHALLENGE.

III. ASSERTION: STATE DID NOT CHALLENGE.

IV. PREJUDICE: STATE DID NOT CHALLENGE.

CONCERNING DEFENDANT’S ALLEGED STATEMENTS TO LT. (Removed):

I don’t recall saying I would “Carry this on until the court dismisses the matter”, and I don’t see the relevance here. Respectfully, if the State followed the Rules of Court, the matter would be resolved by now. No answer to this document is requested but if the State wishes to respond in writing, please do so within 10 actual days from receipt. One copy delivered to Municipal Court and one copy delivered to Prosecutor 11/23/16.

Defense Answer