On appeal from the Superior Court, Law Division, Hudson County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[188 NJSuper Page 417] Defendant and Michael S. Waronek were indicted on August 7, 1980 in Hudson County for the following offenses: (1) conspiracy to commit murder (N.J.S.A. 2A:98-1); (2) murder (N.J.S.A. 2A:113-1; N.J.S.A. 2A:113-2); (3) murder while armed (N.J.S.A. 2A:113-1; N.J.S.A. 2A:113-2; N.J.S.A. 2A:151-5); (4) unlawful possession of a handgun without a permit (N.J.S.A. 2A:151-41); (5) unlawfully obtaining a handgun without a permit (N.J.S.A. 2A:151-32), and (6) unlawfully carrying and
possessing a handgun with intent to use it unlawfully against another (N.J.S.A. 2A:151-56).
On September 8, 1980 the Hudson County Prosecutor's Office was notified that defendant was incarcerated in a federal correctional institution in Virginia and that there were detainers outstanding against him in Warren and Union Counties. As a result of the Union County charges defendant, at the request of the Union County Prosecutor, was being returned to New Jersey pursuant to the Interstate Agreement on Detainers. N.J.S.A. 2A:159A-1 et seq. The Hudson County Prosecutor's Office on September 8, 1980 advised "the federal authorities" that it would accept custody of defendant pursuant to the Union County request. On September 18, 1980 the Hudson County Prosecutor signed an agreement accepting temporary custody of defendant. On September 25, 1980 custody was accepted by Union County. The record is unclear as to what disposition was made of the charges in Union County. According to an affidavit dated January 12, 1981 signed by Carmen Messano, an Assistant Hudson County Prosecutor, the Union County matter had by January 12, 1981 "been disposed of." It appears that the Union County matters were completed by December 12, 1980. We say that because Messano's affidavit relates that on December 12, 1980 Warren County accepted temporary custody of defendant under a murder indictment. Defendant pleaded not guilty to the Warren County charges on January 9, 1981.
On January 13, 1981 the Hudson County Prosecutor moved for an order extending the time provided in N.J.S.A. 2A:159A-4 for the disposition of the Hudson County indictment. The reference to N.J.S.A. 2A:159A-4 was to the Interstate Agreement on Detainers. N.J.S.A. 2A:159A-4(c) provides as follows:
In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving State, but 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.
Inasmuch as defendant had arrived in New Jersey on September 25, 1980, unless the time was extended his trial in Hudson
County had to be commenced within 120 days of that date, January 23, 1981.
The prosecutor's motion was originally scheduled for January 29, 1981. It was not heard then, apparently because defendant was not represented by counsel. The case then came on an arraignment calendar in late February. The case could not proceed because defendant was still not represented by counsel. Defendant requested that he be represented by Edward V. Gannon, a pool attorney with the public defender in Warren County. A Superior Court judge in Hudson County spoke to a Mr. Winograd of the public defender's office in Hudson County. Winograd accepted the assignment to represent defendant and engaged Gannon for that purpose. The prosecutor's motion was rescheduled for February 25, 1981 and March 6, 1981 but was not heard on either date because Gannon was engaged at trial in Morris County. The prosecutor's motion was finally heard March 13, 1981.*fn1 On March 13, 1981 Gannon made a cross-motion to dismiss the indictment.
The judge reserved decision on both motions and then decided the case March 18, 1981. In his decision he reviewed the history of the case. He pointed out that defendant had been charged with murder in Warren County. Waronek was charged with the same murder for which defendant had been indicted there. But the indictments of defendant and Waronek, which had been consolidated, could not be processed in Warren County because Waronek was in federal custody in a federal hospital. The judge then pointed out that defendant had not been represented in Hudson County until he, the judge, interceded with the public defender's office and Gannon was engaged. Waronek had been produced ...