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State v. Ternaku

Decided: January 30, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HALIL TERNAKU, DEFENDANT-APPELLANT



Michels, Pressler and Bilder. The opinion of the court was delivered by Michels, J.A.D.

Michels

Following plea negotiations defendant pleaded guilty to robbery and was sentenced to State Prison for five to seven years, to be served consecutively to a New York State sentence then being served. Defendant appeals, contending solely that his conviction should be reversed because the trial judge erred in denying his pretrial motion to dismiss the indictment for violating the Interstate Agreement on Detainers to which New Jersey is a party. See N.J.S.A. 2A:159A-1 et seq.

Defendant was indicted in Warren County for possession of a dangerous knife, armed assault with intent to rob, armed robbery and entering without breaking with intent to steal on July 11, 1974. The State was unable to locate defendant until June 1975 when it was discovered that he was an inmate in the Clinton Correctional Facility at Dannemora,

New York. A warrant was filed as a detainer with the New York authorities. Thereafter, on or about January 13, 1976, the Superintendent of the Clinton Correctional Facility executed and delivered to defendant a formal notice pursuant to the Interstate Agreement on Detainers, of which New York is also a signatory. New York CPL ยง 580.20 (McKinney's 1971). The notice stated that because there was an untried indictment pending against him, he had the right to request that the appropriate prosecuting officer and court make a final disposition of the indictment.

On or about January 22, 1976 defendant executed and delivered to the Superintendent of the Clinton Correctional Facility a written notice and request for final disposition of the indictment pending against him. The Superintendent promptly forwarded by mail to the Warren County Prosecutor and the Warren County Clerk the notice and request, together with the required statutory certification. The postmark indicated that the mailing date of these documents was January 23, 1976. While there is some question about the date the prosecutor received the notice and request, it is beyond dispute that the county clerk did not receive them until January 28, 1976. On February 26, 1976 the Warren County Prosecutor formally offered to accept temporary custody of defendant. Defendant was returned to New Jersey on or about March 19, 1976. He was originally represented by an attorney designated by the local office of the Public Defender. However, he subsequently retained another attorney related by marriage to one of the two trial judges sitting in Warren County. When the trial judge learned of his son-in-law's representation of defendant, he disqualified himself. Since he was the only trial judge sitting by virtue of the vacation schedule, the matter was sent to a judge sitting in Morris County.

Prior to trial defendant moved to dismiss the indictment on the ground that he was not tried within the 180-day period prescribed by the Interstate Agreement on Detainers. See N.J.S.A. 2A:159A-3(a). The trial judge denied the

motion, which was argued on July 26, 1976. The judge determined that the 180-day period was met since the motion was heard on the last day of the period. He thereupon ordered the trial to proceed that day. The judge also concluded that the period was tolled during the time the only Warren County judge sitting was disqualified by his relationship with defendant's attorney. A jury was impanelled the same day. Thereafter, following plea negotiations, defendant pleaded guilty to simple robbery. The other criminal charges were dismissed in accordance with the plea agreement.

Defendant contends on this appeal that the trial judge erred in calculating the 180-day period from January 28, 1976, the date his notice and request was received by the Warren County Clerk, rather than from January 22, 1976, the date that he executed and delivered the notice and request to the Superintendent of the Clinton Correctional Facility. We disagree and affirm.

Article III of the Interstate Agreement on Detainers (N.J.S.A. 2A:159A-3) provides in pertinent part:

ARTICLE III

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall 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, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under ...


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