[151 NJSuper Page 109] By this motion defendant seeks to correct an allegedly illegal sentence to the end of obtaining credit for time spent in out-of-state custody while resisting extradition efforts. The essential history is this. On March 27, 1972 the bodies of Kathleen Miley and Robert Fraser were found in a rural area of Holmdel Township. Each had been shot in the head. They were from Long Island. Investigation pointed to Sinacore as the culprit. On April 27, 1972 he was indicted by the Monmouth County Grand Jury on the charge of committing the two murders. On the same day he was taken into custody by the Nassau County Police Department, New York, on a complaint charging him as a fugitive from justice in New Jersey on the murder indictment. Later that day he was brought before a magistrate in Nassau County, admitted being the person named as a fugitive in the complaint, and refused to waive extradition. An extradition hearing was set for May 26, 1972 (to permit time for the processing of formal extradition papers); bail was set at $250,000 and he was remanded to jail. After receipt of a "Pre-Parole Risk Report," bail was revoked on May 5, 1972 and Sinacore was thereafter held without bail. On May 26, 1972 the extradition hearing was adjourned to June 23, 1972 pending receipt of the New York Governor's warrant (the New Jersey Governor's Requisition having been forwarded on May 9, 1972). Sinacore continued in jail without bail. The extradition hearing was held on July 6, 1972.
At its conclusion Sinacore was turned over to the custody of Monmouth County detectives.
He was thereafter tried and convicted of the two murders and sentenced to concurrent life terms on October 11, 1972. He was credited with 96 days spent in custody in the Monmouth County jail from July 6, 1972. On this motion he seeks credit for the time spent in the Nassau County jail while resisting extradition -- 69 days. It is his view that he is entitled to the credit by virtue of R. 3:21-8. That rule provides as follows:
Credit for Confinement Pending Sentence. The defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence.
The issue narrows to this: Is time spent in jail in a foreign state during the process of resisting interstate rendition "time * * * in jail * * * between his arrest and the imposition of sentence" as contemplated by the rule? For the reasons which follow, it is not. Defendant is not entitled to additional credit.
The purpose of the rule is clear and salutary. The concept of post-sentence credits by way of "commutation" time has long been a part of our law by way of legislative enactment. N.J.S.A. 30:4-140, 30:4-92, 30:4-123.10. Under that policy, and on conditions fixed by the Legislature, the Executive Branch may release a convict from prison earlier than the time specified by the sentencing judge. Presentence credit is a newer concept. It became mandatory on January 1, 1953 with the adoption of Rule 2:7-10(g) -- the predecessor of R. 3:21-8. It was a reasoned response to the delays in criminal trials caused by ever-burgeoning calendars and the patent disparity in pretrial incarceration suffered by the poor compared to the affluent. In short, the rule was motivated by a basic sense of fairness. If the State arrested the person; set a bail which, while reasonable in amount, could not be met; kept the person in confinement until a trial date which could
not be promptly set -- the least it could do would be to give him credit for the presentence punishment he had already undergone for his criminal act. The passage of time and apparent legislative concurrence make the basic proposition policy of this State. See State v. Beatty , 128 N.J. Super. 488, 490 (App. Div. 1974).
To then argue that the rule should be read "broadly" or "narrowly" adds nothing to the clarity of the result. It is to be read "sensibly," based on the language the court used, the evident purpose for which it was adopted and against the existing state of the law when adopted. It must be read so as to produce realistic rather than unrealistic results. For example, if at his arraignment on an indictment the accused by his act contemns the court and is sentenced on the spot to three months in the county jail for it, no reasonable person would urge that he is entitled to three months credit when later sentenced on the indictable charge -- even though a literal reading of the rule would lead to that conclusion. And while fair dealing is the basis for the rule it does not require that excess time served on one charge must be credited by the State to time to be served on a completely unrelated charge. State v. Marnin , 108 N.J. Super. 442 (App. Div. 1970). The credit to be given for presentence confinement is only that "attributable to the arrest or other detention resulting from the particular offense." Therefore, time spent in federal confinement may not be credited against a sentence for a state offense even though the state sentence is run concurrently with the federal sentence. State v. Council , 137 N.J. Super. 306 (App. Div. 1975). See also, State v. Brandfon , 38 N.J. Super. 412 (Cty. Ct. 1955), aff'd o.b. 40 N.J. Super. 328 (App. Div. 1956).
This application arises from an extradition proceeding. Extradition is not a court proceeding. It is unique. It does not involve directly the judicial branches of the states, but rather, the chief executives of each.
Extradition has been defined as "the surrender to another [state or] country of [a person] ...