Michels, Morgan and Milmed. The opinion of the court was delivered by Michels, J.A.D.
Defendants appeal from a judgment of the Law Division vacating its prior restraint against the transfer of temporary custody of defendants to New York in accordance with the provisions of the Interstate Agreement on Detainers adopted by both New York and New Jersey. Execution of the judgment was stayed pending appeal.
Defendants were convicted in Camden County on an indictment charging assault and battery upon a police officer, assault with intent to kill a police officer and possession of a weapon, and on June 18, 1971 were sentenced to State Prison terms totalling 15 to 19 years. Since that date defendants have been, and presently are, in the custody of New Jersey.
On June 15, 1972 an indictment was returned in Kings County, New York, charging defendants and five others with attempted murder, assault in the first degree, assault in the second degree and possession of weapons in Kings County on or about August 14, 1970. On June 20, 1972 warrants for the arrest of defendants were issued in Kings County and on December 3, 1973 they were lodged with the warden of the State Prison as detainers against both defendants.
While, presumably, defendants were notified of these detainers pursuant to N.J.S.A. 2A:159A-3(c), neither one made a request for final disposition of the indictment on which the detainers were based. See N.J.S.A. 2A:159A-3(a).
Thereafter, on or about April 11, 1974, the District Attorney of Kings County requested temporary custody of both defendants under Article IV of the Interstate Agreement on Detainers (N.J.S.A. 2A:159A-4). Letters dated April 11, 1974 containing copies of requests for temporary custody (Form 5) of each defendant were sent to the Commissioner of Institutions and Agencies and the Superintendent of the State Prison. By letters dated June 4, 1974 the Acting Superintendent of the State Prison informed the District Attorney of Kings County that, with respect to each defendant, "We, as well as the prisoner, are in receipt of your Request For Temporary Custody," and that he was notifying the Governor of the State of New Jersey of the requests. He further informed the District Attorney that the Governor would have 30 days to approve or disapprove the request, and that he would advise of any further action, enclosing certificates of inmate status (Form 3) for each defendant. At the same time the Acting Superintendent sent to the Governor of the State of New Jersey letters dated June 4, 1974 in which he informed the Governor of the receipt of the requests for temporary custody for each defendant and indicated that each had also received his copy. The Acting Superintendent advised the Governor that the request was being referred to his office in accordance with Article IV, paragraph (a), of the Interstate Agreement (N.J.S.A. 2A:159A-4) and requested the Governor's advice.
On June 24, 1974, before the Governor took any action on the request, defendant Christopher X. Thompson applied for and obtained an ex parte order in the Law Division restraining his transfer to New York for its temporary custody under the provisions of the Interstate Agreement. Defendant
alleged that he never requested New York to obtain custody of him for the purpose of disposing of the detainer and requested a formal hearing to contest the legality of his transfer, pursuant to the provisions of N.J.S.A. 2A:159A-4(d). The ex parte order had the effect of also staying the transfer for temporary custody of defendant Lawrence X. Thompson.
On July 3, 1974 Assistant Counsel to the Governor acknowledged receipt of the request for temporary transfer of both defendants to New York and informed the Superintendent that the Governor had the right to disapprove the requests within 30 days of their receipt, and that the Governor "will not exercise his right in this instance as no grounds have been advanced for not honoring New York's request."
On October 25, 1974 the prosecutor moved to vacate the restraints. The Law Division judge held that Article IV of the Interstate Agreement on Detainers did not require an extradition type hearing and vacated the prior restraint against the transfer for temporary custody of defendants by New York. Defendants appeal, contending that such interpretation of Article IV violated their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, and seek a stay of their delivery to New York until they have been brought before a judge of a criminal court of record and notified of their right to petition the Governor ...