State of New Hampshire v. Michael Kukuruza

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0021, State of New Hampshire v. Michael
Kukuruza, the court on December 16, 2020, issued the following
order:

Having considered the defendant’s brief, the State’s memorandum of law,
and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The defendant, Michael
Kukuruza, appeals his conviction, following a jury trial in Superior Court
(Ignatius, J.), on a charge of theft by unauthorized taking. See RSA 637:3
(2016). On appeal, he argues that the trial court erred by denying his pretrial
motion to dismiss the charge on the basis that the State had not timely notified
the trial court, in accordance with a court order, of its intent to retry the
defendant following an earlier trial of the matter that had ended with a hung
jury. He further argues that the trial court erred by denying his post-
conviction motion for bail pending appeal. We affirm.

The trial court generally has broad authority “to control every aspect of
the proceeding before it,” State v. Fecteau, 140 N.H. 498, 504 (1995), including
the enforcement of court-ordered deadlines, see State v. Knight, 161 N.H. 338,
341 (2011). We review a trial court’s ruling concerning the conduct of trial for
an unsustainable exercise of discretion. See Knight, 161 N.H. at 341; Fecteau,
140 N.H. at 504. Although the trial court has authority to dismiss a charge
based on a prosecutor’s failure to comply with a scheduling deadline, we have
held that the trial court may impose such an extreme sanction only when the
State’s conduct has actually prejudiced the defendant. See State v. Chace, 151
N.H. 310, 314 (2004); State v. Bain, 145 N.H. 367, 372 (2000); State v. Cotell, 143 N.H. 275, 279 (1998), superseded on other grounds by rule as recognized
in State v. Mottola, 166 N.H. 173, 176 (2014).

In this case, following the conclusion of the defendant’s first trial by
hung jury, the trial court issued an order on February 11, 2019, stating that it
had held the case open “to allow the [State] to notify the court if it intends to
retry the case,” and that the State had not yet notified the trial court of its
intent. Thus, the trial court ordered the State to notify it “within 20 days if it
intends to proceed with the charge,” or “the file [would] be closed.” The parties
do not dispute that the State did not notify the trial court of its intent within
twenty days.

On April 2, 2019, the trial court issued a new trial schedule. On July 25,
2019, the defendant moved to dismiss on the basis that the State had failed to
timely comply with the February 11 order. The State objected, asserting that it
never received the February 11 order, that it did, in fact, notify the trial court of
its intent to retry the defendant on March 15, 2019, and that the defendant
had made no showing of prejudice. In denying the motion, the trial court
reasoned, “There being no prejudice shown, the court will not take the
extraordinary step of dismissing the charge.”

Upon this record, we cannot conclude that the trial court’s denial of the
motion was an unsustainable exercise of discretion. Fecteau, 140 N.H. at 504.
In his motion, the defendant articulated no actual prejudice caused by the
State’s delay in notifying the trial court of its intent to retry him. Nor does the
record on appeal establish any prejudice arising from the State’s failure to
timely notify the trial court of its intent, and we reject the defendant’s assertion
that he should not be required to show prejudice under the circumstances of
this case. See Chace, 151 N.H. at 314 (reversing dismissal for prosecutorial
misconduct when defendant could not demonstrate any prejudice); Bain, 145
N.H. at 372 (holding that trial court erred by dismissing case for prosecutorial
malfeasance because the record could not support a finding of prejudice);
Cotell, 143 N.H. at 280 (reversing dismissal based upon prosecutor’s failure to
timely provide discovery because the record revealed no plausible basis for a
finding of actual prejudice). Indeed, we note that the State did, in fact, notify
the trial court of its intent to retry the defendant shortly after the twenty-day
deadline had expired.

Because the defendant has not established reversible error as to the
merits of his appeal, his argument that the trial court erred by denying bail
pending appeal is moot.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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