Patrick J. McGann, Jr., J.s.c.
This is an extradition matter. In it an appeal has been taken from an order of this court dated May 29, 1975, based on an oral determination made May 12, 1975. This opinion is filed pursuant to R. 2:5-1(b). The precise issue is not easily stated without a review of the procedural history of the matter.
On March 6, 1973 a warrant of arrest was issued in the State of Nevada for Neil J. Lucas, a/k/a Dr. Julius B. Hoffman, a/k/a Dr. Antonio R. Luciano, a/k/a Carl Del Ventiselti. He was charged with two counts of obtaining money under false pretenses, in violation of Nevada law. The offenses allegedly had occurred on November 24 and November 27, 1972. The warrant and complaint were forwarded to the Monmouth County Prosecutor's Office by the Sheriff of Clark County, Nevada, on April 30, 1973, and received May 4, 1973. Lucas was arrested on May 8, 1973. N.J.S.A. 2A:160-21.
The Grand Jury of Monmouth County had previously, on February 6, 1973, returned Indictment No. 584-72 against Lucas, charging him with three counts of obtaining money under false pretenses, in violation of New Jersey law based on incidents occurring October 11, November 3 and November 16, 1972. On those charges he had, through counsel, entered a not guilty plea by mail on April 27, 1973. He was represented then and throughout all proceedings to the present by the same firm of attorneys. Under Indictment No. 584-72 defendant actively pursued all pretrial procedures and remedies, including discovery applications and a motion to suppress evidence.
His arrest, on May 8, 1973, was a technical one since he had arranged through counsel to appear before the court.
He indicated then that he would oppose any extradition to Nevada and simultaneously moved before the assignment judge that bail be set. It was in the amount of $10,000. Bail was posted. N.J.S.A. 2A:160-23 and 24.
Thereafter, on May 21, 1973 the Governor of Nevada issued his requisition warrant N.J.S.A. 2A:160-11. It was duly received and processed, and on May 31, 1973 Governor Cahill issued his arrest and rendition warrant (N.J.S.A. 2A:160-15 and 16) and forwarded it to the Monmouth County Prosecutor. At that point defendant was aware that formal extradition had been initiated; the State was aware that he intended to contest it; defendant was free on bail.*fn1 Although defendant did not formally apply for a writ of habeas corpus to test the validity of the extradition, the assignment judge nevertheless entered an order fixing a hearing date for August 7, 1973. That date passed without a hearing and neither defendant nor the State took any affirmative action to bring the extradition hearing on, although the prosecutor, on August 20, 1973, wrote to defense counsel noting the lack of a hearing on August 7. At that point the fact that both sides tacitly agreed to allow the extradition matter to be quiescent was understandable since both were girding for the upcoming trial on the New Jersey charges. That trial took place from October 1 through 3, 1973. Lucas was found guilty and sentenced on October 26, 1973 to the Youth Correctional Institution Complex. He was paroled on September 6, 1974.
The extradition hearing which had been held in abeyance was conducted by this court on November 1, 14, 15 and 25, 1974. On November 26, 1974 an order was entered directing that Lucas be turned over to the custody of the proper Nevada authorities and returned forthwith to Nevada. Defendant promptly applied for continuation of his release
on bail pending his appeal of that rendition order. This court denied the bail application. Lucas surrendered to the custody of the Sheriff of Monmouth County as directed by this court, pending the outcome of his appeal. Bail was denied based on the determination that there was no provision in the law for the same; that the Uniform Extradition Act and the interstate rendition clause of U.S. Const. , Art. IV, § 2, par. 2, required immediate surrender to the demanding state; that if bail were to be set it should be done by the courts of Nevada -- the state whose laws defendant had allegedly offended. In re DeGina , 94 N.J. Super. 267 (App. Div. 1967).
Lucas filed his notice of appeal with the Appellate Division and sought from that court the setting of bail pending his appeal. His motion was denied. He moved for the setting of bail before our Supreme Court. His motion was denied. He then petitioned for writ of habeas corpus to the United States District Court for the District of New Jersey. That application was denied on February 28, 1975, together with his motion for bail.
Curiously enough, concomitant with the appellate relief he sought on bail pending review of the rendition order, Lucas' counsel was in contact with Governor Byrne's office and furnished the Governor's special counsel with copies of all appellate briefs and proceedings.
Governor Byrne apparently determined that he would set bail. His special counsel spoke with the Monmouth County Prosecutor's Office, and communicated that intent. The prosecutor voiced opposition to that procedure, but faced with the executive determination agreed that $20,000 would be an adequate amount of bail security. The document (a copy of which is appended hereto as Exhibit J-1) then was signed by the Governor and Secretary of State and delivered to Lucas' counsel. He, in turn, presented it to the county clerk and demanded that Lucas be allowed to post the bail. The clerk sought judicial instruction from the
court. The matter was listed for hearing as to the efficacy of the "Amended Arrest Warrant"; the participation of Governor's special counsel was solicited, and the county prosecutor and the Attorney General were asked to appear amicus curiae.
Three related questions are involved:
1. Does the Chief Executive, in issuing an arrest warrant, have the right to provide therein that when the accused is arrested he shall be immediately bailed on terms set by the Chief Executive?
2. After an arrest warrant in the usual form has been issued by the Chief Executive may he, after the arrest of the accused, exercise a bail-setting determination?
3. May a successor Governor to the one originally issuing the arrest warrant, after the execution of the warrant, act to "amend" the original warrant and set bail -- after the bail application has been denied by the Supreme Court of this State?
There is no right to bail pending appeal of an extradition proceeding
At the outset it should be noted that the authority for extradition is our Federal Constitution. U.S. Const. , Art. IV, § 2, cl. 2. See State v. Phillips , 62 N.J. Super. 70 (App. Div. 1960); In re Cohen , 23 N.J. Super. 209 (App. Div. 1952).
A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime. [ U.S. Const. , Art. IV, § 2, cl. 2]
The constitutional mandate imposes "an absolute obligation on each state to surrender criminals fleeing from the justice of another state". In re Peter Voorhees , 32 N.J.L. 141, 145 (Sup. Ct. 1867), cited with approval ...