Rimm, J.c.c. (temporarily assigned).
This matter is before the court on motion for dismissal of indictment No. 63-63-S on behalf of defendant Louis Joseph Lippolis. The State has made cross-motion for an extension of the time to permit it to proceed against defendant.
The parties are in accord as to the facts. On November 12, 1963 defendant was indicted for murder by the Atlantic County grand jury. Thereafter, defendant became a fugitive from justice and later was located as an inmate of the Pennsylvania State Correctional Institution of Huntingdon, Pennsylvania. On May 5, 1967 the Atlantic County Prosecutor received from the superintendent of this institution a letter and forms approved by the Council of State Governments under the Interstate Agreement on Detainers Act, N.J.S. 2 A:159 A -1 et seq. This letter notified the prosecutor that
defendant requested disposition of the pending indictment. The following forms were enclosed: Form No. 2, "Inmate's Notice of Place Imprisonment"; form No. 3, "Certificate of Inmate Status," and form No. 4, "Offer to Deliver Temporary Custody."
On June 2, 1967 the Atlantic County Prosecutor forwarded to the superintendent of the Pennsylvania State Correctional Institution Form No. 7, "Prosecutor's Acceptance of Temporary Custody," offered in connection with a "Prisoner's Request for Disposition of a Detainer," in which he advised the superintendent that he accepted temporary custody of the prisoner and that he proposed to bring defendant to trial within the time specified by the Interstate Agreement on Detainers.
Dorothy E. White, principal clerk-stenographer to the prosecutor, prepared form No. 6, "Agreement on Detainers, Evidence of Agents' Authority to Act for Receiving State," and also prepared a transmittal letter to be forwarded at the proper time with Form No. 6 to the Commissioner, Department of Institutions and Agencies. The date and approximate hour of return of defendant to New Jersey was left blank on form No. 6 because the necessary and requested information was not sent to the prosecutor. Therefore, before the date of trial could be inserted, the Atlantic County Prosecutor's office would have to ascertain if the prisoner was still an inmate of said institution and still available for trial. Accordingly, on September 8, 1967 Miss White had a telephone conversation with Curtis C. Carson, records officer of the Pennsylvania State Correctional Institution, and stated that she wanted to know if defendant was still available for trial so that she could complete form No. 6 by inserting the date and approximate hour of trial. This form was to be forwarded to New Jersey's administrator, Lloyd W. McCorkle, Commissioner of Department of Institutions and Agencies, (under the Interstate Agreement on Detainers Act) for his approval and designation to the warden of said institution of the two agents who were to return the accused
to this State for trial. This certification by the New Jersey administrator is found at the bottom of form No. 6.
Carson informed Miss White that the accused was scheduled for a hearing in Philadelphia on September 11, 1967 and thereafter would be returned to the institution. Carson stated that he could not determine the length of time that defendant would remain in Philadelphia, nor when he could be available to be returned to New Jersey for trial. Miss White stated that Carson promised to write a letter to her informing her when the accused would be available for trial. Carson said he does not recall promising that he would further advise Miss White when defendant would be available for trial, and also said that it is possible that he did so advise her.
Never having received notification as to defendant's availability, Miss White telephoned Carson on November 14, 1967 to ascertain if defendant was available. She was advised that the accused had been returned from Philadelphia to the institution and was available, but he offered no explanation for his failure to notify her as he had promised. The prosecutor took no further action until he was served December 12, 1967 by defendant with a notice of motion for an order dismissing the indictment. The next day the prosecutor filed a notice of cross-motion for a continuance of trial date. On December 22, 1967 the court ordered a continuance until briefs were received and the matter determined.
Defendant contends that the State failed to comply with N.J.S. 2 A:159 A -3(a) which requires that defendant "be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * * *." It is urged that noncompliance with this statute violates defendant's right to a speedy trial, guaranteed by N.J. Const., Art. I, par. 10. Defendant claims detriment resulting
from the detainer being placed against him, not being able to work except under maximum security, and not being able to earn proper credit for time served due to remaining under maximum security, thereby losing credit or time off from his eventual date of discharge from the Philadelphia prison system.
The State contends that (1) the 180-day period prescribed by N.J.S. 2 A:159 A -3(a) was tolled because defendant was unable to stand trial as provided by N.J.S. 2 A:159 A -6(a); (2) defendant is estopped from claiming benefit under the provision for running of the time period in N.J.S. 2 A:159 A -3(a), and (3) a strict interpretation of the limitation of the 180-day time period would be contrary ...