Weidenburner, J.c.c. (temporarily assigned).
[79 NJSuper Page 271] On April 7, 1958 the defendants Bernard Chirra, William Masselli and August Frank Mazzella, were indicted in this State for armed robbery, kidnapping and conspiracy to rob. At the time they were in custody in New York for offenses committed there. Detainers based on the New Jersey indictments were filed against them in New York on May 8, 1958. The defendants
remained in custody in New York until January 1963 when they were returned under the provisions of the Interstate Agreement on Detainers (N.J.S. 2A:159A-1 et seq.) for trial on the indictments pending in this State. They now move to dismiss the pending indictments on two grounds: (1) the State has failed to comply with the provisions of the Interstate Agreement on Detainers, and (2) they have been denied their right to a speedy trial, in violation of N.J. Const. Art. I, § 10.
Following the filing of the detainers against the defendants with the New York authorities on May 8, 1958, neither the county prosecutor nor any defendant took any action on the pending indictments or under the pertinent statute for almost two years. On January 14, 1960 the county prosecutor initiated action to secure the return of the defendants to this State for trial by obtaining an order of the Union County Court, which directed the appropriate authorities of the State of New York to deliver temporary custody of the defendants for trial on the stated indictments "in accordance with the terms and provisions of the laws of New York and New Jersey dealing with the Agreement on Detainers to which both States are parties." The affidavit of the assistant county prosecutor in support of the motion for said order recited that it was "necessary at this time to move" the indictments "for trial, inasmuch as the alleged offenses were committed on July 10, 1957 and there is a danger of the inability of the State to prove its case unless the indictments are moved immediately."
The order of the Union County Court was thereafter on January 26, 1960 forwarded to the Commissioner of Corrections of the State of New York and the wardens of the two New York prisons where the defendants were in custody, pursuant to the provisions of N.J.S. 2A:159A-4(a).
All the defendants were notified by the New York authorities of the request of this State for their custody for the purpose of trial on the pending indictments. The defendants Masselli and Mazzella each wrote to a judge of the Union County Court on February 10, 1960, requesting that the indictments
against them be dismissed because of the lengthy sentences already being served by them on convictions for crimes in New York. On January 31, 1960 the defendant Chirra wrote to the county prosecutor in this State acknowledging that he had been given notice of the request for his custody by this State.
The warden of the New York prison in which Masselli and Mazzella were in custody also advised the county prosecutor in this State by letter dated February 10, 1960 that those defendants would be received by the New Jersey authorities after the expiration of the 30-day waiting period required by the statute to permit a prisoner to contest his removal to the demanding State. N.J.S. 2A:159A-4(a).
During the 30 day waiting period, the judge of the Union County Court advised Masselli and Mazzella that the indictments against them could not be dismissed and "the case must go to trial." During the same period, the defendants' requests for relief from the New Jersey detainers were denied by the Governor of the State of New York. A request for the custody of the same defendants for trial on pending indictments in Bronx County, New York, was also denied by the New York prison authorities because of the pending request previously made by the county prosecutor of this State. See People v. Masselli , 234 N.Y.S. 2 d 929, 931-2 (App. Div. 1962).
On April 29, 1960 the county prosecutor informed the New York authorities that he would not take custody of the three defendants until the September 1960 court term because of the heavy court calendars for the balance of that court year and the imminent summer court recess. No further action was taken by the county prosecutor to obtain custody of the defendants until some 31 months later. On December 6, 1962 he instituted new proceedings under the statute which have resulted in the return of the defendants to this State and their present motions.
It should be observed that the defendants Masselli and Mazzella were unavailable during part of the ...