Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D. Kolovsky, J.A.D. (dissenting).
[107 NJSuper Page 139] The State appeals from the dismissal by the Superior Court, Law Division, of an indictment for murder against defendant, pursuant to the act
effectuating the Interstate Agreement on Detainers, L. 1958, c. 12 (N.J.S.A. 2A:159A-1 to 15). The dismissal was by reason of the State's failure to bring defendant to trial within 180 days of his formal request therefor, as required by the act failing grant by the court of a continuance for good cause or tolling of the 180-day period for inability of defendant to stand trial.
The facts and circumstances, as well as the reasoning of the Law Division in support of its action, are fully set forth in Judge Rimm's opinion, State v. Lippolis , 101 N.J. Super. 435 (1968), to which we herewith refer.
The factual statement of the Law Division may be amplified to the following extent. (1) Defendant was apparently unable to stand trial in New Jersey from September 11 to September 21, 1967, having been in attendance at a hearing in Philadelphia during that period. (2) While the Pennsylvania prison official to whom Miss White, principal clerk-stenographer in the Atlantic County Prosecutor's office, spoke on September 8, 1967 concerning defendant's availability for trial, admitted it was possible he told her that he would inform her in writing when defendant was available for trial, he averred that it was unlikely that he so advised her, since it was the practice of the office not to do so but to put other states having detainers on prisoners on continual inquiry for such information, the number of such detainers at any given time being too numerous to afford such service.
The crux of the case is whether the prosecutor's motion for "continuance" of the 180-day period (N.J.S.A. 2A:159A-3(a)) was out of time. On a straight calendar basis, that period expired November 1, 1967. Adding the ten days in September 1967 when defendant was presumably unable to be tried in New Jersey because of the Philadelphia engagement (N.J.S.A. 2A:159A-6(a)) would cause the 180-day period to expire November 11, 1967. The prosecutor sought no continuance until December 13, 1967, that action having been triggered by defendant's motion for dismissal noticed the day before.
The State has not, below or here, challenged the principle we laid down in State v. Mason , 90 N.J. Super. 464, 474 (1966), that a prosecutor may not defeat a motion for dismissal by letting the 180-day period expire and seeking a continuance subsequently, after the motion for dismissal has been filed. It argues, instead, that the prisoner should be deemed to have been "unable to stand trial," within N.J.S.A. 2A:159A-6(a), and the statutory period therefore tolled, between September 8, 1967, when Miss White had her first conversation with the Pennsylvania prison official, and November 14, 1967, when, on her renewed inquiry, she was informed by him that defendant was available for trial. In addition to the trial court's reasons for rejecting this contention (101 N.J. Super. , at 444-445) we point out, as noted above, that the record herein indicates that defendant was actually unable to stand trial in New Jersey, if at all, only from September 11 to September 21, 1967.
The State's real position in reference to this point is that defendant should be deemed to have been constructively unable to stand trial during the 67-day period claimed because the Atlantic County Prosecutor could justifiably rely on the absence of notice by the Pennsylvania authorities after September 8 of defendant's availability. It is our view, however, that nothing but defendant's actual inability to stand trial can toll the statute under the section cited. The prisoner cannot be saddled with the consequences of misunderstandings between the representatives of the two states. To the cases interpreting the legislative enjoinder of liberal construction of the act (N.J.S.A. 2A:159A-9) as calling for absolving prisoners from defaults of officers, cited in State v. Mason, supra (90 N.J. Super. , at 470), add People v. Masselli , 17 A.D. 2 d 367, 234 N.Y.S. 2 d 929, 934 (App. Div. 1962). Defendant satisfied the statutory prerequisite of action on his part by causing notice of demand for disposition of the indictment to be served on both the prosecutor and the County Court. The Pennsylvania officials were not his agents in the sense that any fault by
them in communication with the prosecutor's office could operate to sacrifice his rights, particularly in circumstances like these, where the prosecutor's office simply let the 180-day period go by without at least one final renewal of inquiry, which, if made, would have revealed the defendant's availability for trial before expiration of the period. See also 101 N.J. Super. , at 445-446.
The State argues, finally (it does not appear to have made this contention below), that since there is no statute of limitations for the crime of murder, the interstate detainer act should not be read to comprehend dismissals of indictments for that offense. We cannot agree. The pertinent section deals with the pendency of "any untried indictment * * * on the basis of which a detainer has been lodged against the prisoner" (Art. III). There is no exception for murder indictments. The general public policy for trial of all criminal indictments -- murder and otherwise -- bows to the express legislative determination, reflected by the enactment of the interstate agreement on detainers, that the strong public policy against neglecting indefinitely the disposition of indictments against persons incarcerated out-of-state shall be implemented by effective sanctions such as dismissals with prejudice to the extent specified by the statute. Indeed, the length of a prison term for murder potentially confronting a prisoner indicted therefor but presently serving a sentence for another crime makes the objectives of the act (N.J.S.A. 2A:159A-1) peculiarly apposite in such case. Unless this is to be another instance of "hard cases making bad law," the matter should be treated just as though any run-of-the-mill indictment were involved.
The foregoing would suffice to dispose of this appeal were it not for the position taken in the dissent (not argued by the State) that State v. Mason, supra , should be overruled to the extent that it precludes the grant of continuances not sought by the State until after the ...