The Appellate Division continued in relevant part: Because defendant failed to satisfy the second Townsend prong, we need not address the State’s reasons for the delay in seeking an indictment under the first prong. We would be remiss, however, if we did not briefly comment on the State’s purported reasons for the seven-year delay. Those reasons changed substantially between the time the matter was presented to the trial court and this court.
Before the motion judge, the State asserted defendant failed to demonstrate “material harm.” According to the State’s trial brief: Defendant was in Pennsylvania serving a custodial sentence at the time the allegations in this case first came to light in 2013. He remained in custody there until 2020. We know what would have happened had East Orange filed charges in 2013 or 2014 because we saw what happened with Newark’s charges that were filed in September 2014. Those charges could not be prosecuted until 2020, when defendant was finally released from custody in Pennsylvania and extradited to New Jersey. Defendant was a wildcat on that complaint-warrant and the charges could not proceed until he came to New Jersey to answer for them.
On appeal, however, the State backpedals from its earlier position, claiming “the delay was strictly inadvertent,” due in large part to the resignation of the SVU assistant prosecutor, who had spoken with the lead EOPD detective in November 2013. Acknowledging those circumstances did not relieve the ECPO of its “obligation to follow up with the EOPD,” the State submits the charges were inadvertently “overlooked.” Notably, the State does not contend the investigation was ongoing during the seven-year interim. Nor is there any indication in the record that DNA or forensic evidence was submitted for evaluation.
This is a classic example of the prosecution using false pretenses in an effort to justify their actions and inaction. The prosecution likely did not research the state of the law nor did they anticipate appellate review when they gave their initial reasoning. Then, they took a different position that would withstand appellate review, even though it undermined their initial claims. In the end, the appellate division still let them get away with this. This is why prosecutors so often make false statements with impunity.
