Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
[90 NJSuper Page 466] This is an appeal from denial by the Union County Court of defendant's application for post-conviction relief sought under R.R. 3:10A, adopted by the Supreme Court effective January 2, 1964. Basically, defendant seeks to void his 1960 conviction for armed robbery because of the denial of his motion pending trial to dismiss the indictment on grounds of violation by the State of the Interstate Agreement on Detainers ("Interstate Agreement," hereinafter) to which New Jersey became a party April 18, 1958 by act of the Legislature. L. 1958, c. 12 (N.J.S. 2A:159A-1
et seq.). Apart from the merits of defendant's position in that regard, he urges that post-conviction relief under R.R. 3:10A is an appropriate remedy because his earlier efforts to obtain appellate review of the 1960 decision against him were improperly rebuffed by this court as untimely and a 1962 attempt to secure post-conviction relief by means of habeas corpus was rejected on procedural grounds.
Defendant was indicted in Union County for armed robbery on July 2, 1958. While serving a term of imprisonment at the Green Haven State Prison at Stormville, New York, defendant received a letter dated January 7, 1959 from an assistant prosecutor of Union County requesting advisement as to whether he would "voluntarily consent to return to Union County for the purpose of arraignment and trial only in reference to Indictment No. 415 M-57 in which you and -- are charged with armed robbery * * *." It should be here noted that it is not claimed by the State that written request was made at that time to any authorities of the State of New York for temporary custody or availability of the defendant, or that any New Jersey court "approved, recorded or transmitted" any such request, both of which are required for the inception of a proceeding by a receiving jurisdiction under Article IV of the Interstate Agreement. (The significance of these observations will appear infra.)
On January 22, 1959 there was received in the office of the Union County Prosecutor a form document obviously prepared by the correctional authorities of New York State for use in proceedings under the Interstate Agreement. This was entitled "Inmate's Notice and request," subtitled "(Pursuant to the provisions of the Code of Criminal Procedure, Section 669b*fn1)," addressed to the "District Attorney" of Union County and the Superior Court "of Union County," dated January 20, 1959, signed by defendant, and it requested "that a final disposition be made of the following Indictment * * * now pending against him * * *," designating the then pending
indictment for armed robbery. Along with the described notice was enclosed a "Certificate of Inmate Status," signed by the warden of the New York prison and specifying six items of information concerning defendant (such as term of commitment under which prisoner is being held, time already served, etc.), all required to be so certified by Article III of the Interstate Agreement, that Article specifying the procedure to be followed when the provisions of the act are invoked by a prisoner.
On February 20, 1959 the prosecutor wrote to the warden of Green Haven Prison acknowledging receipt of an original and copy of the Inmate's Notice and Request and of the Certificate of Inmate Status "pursuant to provisions of Code of Criminal Procedure, Section 669-b," and advising that the originals of each had been filed in the office of the Clerk of Union County. The letter stated that the prosecutor would accept the offer of the defendant to voluntarily return for trial of the indictment provided he "expressly waives his extradition rights and consents to accompany an authorized agent of this State * * *." It closed with a request that such consent and waiver be forwarded pursuant to Article V of the Interstate Agreement. Respecting this communication, it is noteworthy that paragraph (e) of Article III provides that any request for final disposition by a prisoner under that article shall also be deemed to be a waiver of extradition with respect to any charge contemplated thereby; also that Article V of the act provides that in response to a request made under Article III or Article IV the appropriate authority in the sending state "shall offer to deliver temporary custody" of the prisoner to the appropriate authority in the receiving state.
On May 7, 1959 the warden of Green Haven Prison sent the prosecutor a formal offer to deliver temporary custody of the prisoner for purposes of "speedy and efficient" trial of the indictment "as requested by the prisoner in his notice forwarded to you January 20, 1959" and "pursuant to Article V" of the Interstate Agreement. There was also enclosed another
"Certificate of Inmate Status" dated May 6, 1959 and a waiver of extradition signed by the defendant.
On May 13, 1959 the prosecutor wrote to the warden of Green Haven Prison that he would accept temporary custody of the prisoner on or about June 18, 1959. On May 14, 1959 he inquired as to the earliest date the prisoner would be available. After receiving a response dated May 18, 1959 that the prisoner could be picked up any weekday, the prosecutor wrote the warden May 27, 1959 to the effect that "because of the crowded condition of our court calendar we could not conceivably accommodate Mr. Mason before the September Session of the court." On August 14, 1959 the chief Union County detective wrote the warden that defendant's case had been set for trial September 14, 1959 and that custody of him would be taken September 2, 1959. The warden was asked to ascertain from defendant whether he desired the New Jersey court to assign him counsel.
On August 28, 1959 defendant wrote the prosecutor that he no longer consented to extradition because of the lapse of 180 days from the date (January 20, 1959) of his request for disposition of the indictment. He was thereby apparently relying upon the same provisions of the Interstate Agreement he urges on this appeal. N.J.S. 2A:159A-3(a); 159A-5(c). Nevertheless, the New York authorities delivered custody to the prosecutor's representatives on October 10, 1959 at the prosecutor's request.
On October 23, 1959 defendant was arraigned and pleaded not guilty, and counsel was assigned to represent him. Defendant thereupon made a motion returnable January 18, 1960 to dismiss the indictment with prejudice by reason of failure of the State to try him within 180 days after his request under the Interstate Agreement in January 1959 that final disposition of the indictment be made. The record does not show what, if any, steps were taken by the State to set a trial date between October 23, 1959 and the filing of defendant's motion.
For the better understanding of the basis for the denial by the Union County Court of defendant's motion and of the procedural steps in the matter thereafter, we now fill in the outline of the Interstate Agreement, portions of which have already been adverted to. This legislation has been the subject of discussion in previous decisions in this State, none of which are determinative of the meritorious questions now presented for adjudication. See State v. Masselli, 43 N.J. 1 (1964); State v. West, 79 N.J. Super. 379 (App. Div. 1963); State v. Chirra, 79 N.J. Super. 270 (Law Div. 1963); Carrion v. Pinto, 79 N.J. Super. 13 (App. Div. 1963). See also the comprehensive analysis of the background of the act in People v. Esposito, 201 N.Y.S. 2 d 83 (Cty. Ct. 1960).
Article I of the Interstate Agreement (N.J.S. 2A:159A-1) states its purpose and object as follows:
"The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures."
It has been properly held that since the purpose of this statute is remedial, it should be accorded liberal construction in favor of prisoners within its purview. State v. West, supra, 79 N.J. Super., at p. 384; State v. Chirra, supra, 79 N.J. Super., at p. 277; People v. Esposito, supra, 201 N.Y.S. 2 d, at pp. 88-89. And Article IX states that: "This agreement shall be liberally construed so as to effectuate its purposes." But note the ...