Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant appeals his conviction of armed robbery of a Paterson restaurant on the evening of January 29, 1956. We have concluded there must be a reversal principally because of the prejudicial effect of remarks in summation by the assistant prosecutor (not counsel who argued this appeal). However, we also discuss other points of appeal involving questions which may arise at the retrial, as well as the contention that defendant was entitled to a dismissal of the indictment because he was denied a speedy trial contrary to his constitutional rights.
Defendant contends that in view of his repeated requests for an immediate trial soon after return of the indictment filed February 9, 1956, the delay in trying him until May 1959 warranted dismissal of the indictment because of the denial of "the right to a speedy * * * trial" ordained by Article 1, paragraph 10 of the Constitution.
Defendant was apprehended and prosecuted in Virginia for a crime committed there the day after the alleged occurrence in New Jersey for which the present indictment was returned. He was confined in Virginia continuously under sentence for the offense noted until and after the instant trial, having been rendered by Virginia to the New Jersey authorities for the temporary purpose of this trial by request of the Governor of New Jersey, pursuant to N.J.S. 2A:160-33. However, defendant had written to the Acting Prosecutor of Passaic County from his place of detention in the spring of 1956 requesting a "speedy trial" on this and other indictments, but without result. He also applied for habeas corpus in the summer of 1956, one of the grounds asserted being that he had not been accorded a speedy trial on this and other indictments. This was denied by the Passaic County Court on the ground that the grievance was not reviewable on habeas corpus. (This decision was never appealed.) Defendant in 1958 filed a motion with the court addressed to other indictments, but not to that here involved. We are told that only after the institution by defendant of federal court proceedings in 1958 did the State set in motion the extradition proceedings that culminated in the trial.
The facts stated indicate that the office of the Prosecutor may well have been remiss in not bringing the defendant to trial earlier than three and one-third years after return of the indictment. The important policy underlying the constitutional directive for a speedy trial should always be served by prosecuting officials. The defendant's incarceration in another state was no excuse to delay his trial since the extradition procedure ultimately followed to bring defendant to New Jersey was always available, had the Governor been requested to employ it. See Rau v. McCorkle , 47 N.J. Super. 36 (App. Div. 1957). See also State v. Patton , 76 N.J. Super. 353, 358 (App. Div. 1962). To concede this much, however, is not to concede error in the denial of the motion to dismiss the indictment. State v. Smith , 10 N.J. 84 (1952). Under that leading case there is no absolute right of dismissal for delay
but only a right by defendant to apply for the setting of a specified date for trial under R.R. 3:11-3(b). Upon failure of the Prosecutor to go to trial on the date set, the Assignment Judge may dismiss, with the effect of an acquittal. Ibid. Cf. State v. Chirra , 79 N.J. Super. 270 (Law Div. 1963), applying against the State the sanctions of N.J.S. 2A:159A-1 et seq. ("Interstate Agreement on Detainers," L. 1958, c. 12), which was not here invoked by defendant.
The court not having at any time set a day certain for trial in this matter other than that on which the case was actually tried, and the Prosecutor therefore not having been in violation of an order of that nature, the Smith case precluded dismissal of the indictment on the ground asserted.
It may be noted, in passing, that while defendant asserts he was prejudiced by the unavailability at trial of witnesses who were available earlier, yet when he was permitted at the trial in another connection to develop that subject he failed to particularize the witnesses and the materiality or relevance to his defense of the testimony they would purportedly have adduced if available. In any event, since there is to be a retrial, defendant will have another opportunity to obtain any necessary witnesses.
On direct examination defendant testified to a number of convictions of crime entered against him at various times, including several in January 1945. At that time he was 17 years of age. The testimony was that the 1945 crimes involved were burglary, breaking and entering, and larceny. It is not contended that these were prosecuted as juvenile offenses, the statute at that time fixing the age of persons precluded from prosecution for crime at "under 16 years of age." However, the statutory age was raised to 18 by L. 1946, c. 77, N.J.S. 2A:4-14, N.J.S.A. ...