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State v. Brockington

Decided: December 2, 1965.


Kilkenny, Goldmann and Leonard. The opinion of the court was delivered by Goldmann, S.j.a.d.


[89 NJSuper Page 425] This is an indigent defendant's appeal, pursuant to leave granted, from a judgment of conviction

based on a jury verdict finding defendant guilty of larceny (N.J.S. 2A:119-2) of a 1961 Cadillac. We assigned counsel and granted a free transcript.

Defendant was apprehended in the City of Newark on March 30, 1962 on a charge of larceny and receiving the automobile. He was arraigned in the Newark Municipal Court on April 3, 1962 and released on $2,500 bail to await the action of the grand jury. Ten days later, on April 13, he was arrested on a narcotics possession charge by the federal authorities in Newark. He could not meet bail and was therefore remanded to custody under the federal charge. On April 16 the bail on the state charge was revoked and a detainer filed with the federal authorities by the County of Essex. Defendant was convicted on the narcotics charge in the United States District Court of New Jersey on August 16, 1962, and sentenced to a four-year term at Lewisburg Penitentiary, Pennsylvania. Thereafter, the Essex County grand jury on November 21, 1962 returned an indictment charging defendant with larceny and receiving of the Cadillac.

On January 16, 1963 defendant wrote the Essex County Prosecutor from Lewisburg, stating that his attorney had informed him that he had been indicted on four charges of false pretense and two charges of larceny; that he was serving a term for possession of narcotics, and that he hoped to be transferred to the Federal Narcotic Hospital in Lexington, Kentucky, upon being released in mid-1965 so that he could receive proper help with his narcotics problem. The letter continued:

"I am requesting at this time to have the charges that are brought against me to be dismissed and the detainer withdrawn, so that I may have a clean start when I am returned back to society. If not, I request to be brought before the Court as soon as possible for trial on these charges.

It is my sincerest wish that these charges be disposed of as soon as possible. Would appreciate a reply at your earliest convenience. I wish to take this time to thank you for any and all consideration you may give this matter."

(Although defendant alleges that he renewed this request in March 1963, neither the prosecutor, County Court, assigned counsel, nor this court has found any evidence of such letter being sent.) Defendant received no reply to his January letter.

An April 24, 1963 defendant filed an application of his own composition with the Essex County Court stating that he was aware of a detainer placed against him by the Essex County authorities charging him with four counts of obtaining money under false pretense and two charges of larceny. After referring to the fact that he had previously written the prosecutor requesting that he be tried on these charges or have them withdrawn, defendant prayed that he be brought to trial or that the detainer be withdrawn. The assignment judge acknowledged receipt of this petition by letter of April 30, 1963, informing defendant that the matter was being investigated. He again wrote defendant on May 24 advising that pursuant to R.R. 3:11-3(b) he was fixing the date of trial for the week of October 7, 1963. A third letter from the assignment judge, dated June 3, 1963, advised defendant to fill out an enclosed form and return it to the court so that counsel might be assigned. The county judge assigned counsel on June 27. Thereafter, at the request of the Essex County authorities, defendant was brought from Lewisburg to Essex County where, on September 23, he entered a plea of not guilty.

Court-assigned counsel then moved to dismiss the indictment in question, plus five other pending indictments, on the grounds that (a) the State had failed to comply with the provisions of the Interstate Agreement on Detainers (N.J.S. 2A:159A-1 et seq.) and (b) defendant had been denied the right to a speedy trial, in violation of the N.J. Constitution (1947), Art. I, par. 10. The motion was heard on October 18 and denied. Trial was set for October 28 and proceeded on that day after assigned trial counsel had, at defendant's request, called the court's attention to the motion that had been made to dismiss the indictments and denied on October

18. Defendant did not take the stand to testify in his own behalf, and in charging the jury the trial judge ...

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