On appeal from the Superior Court, Law Division, Essex and Bergen Counties.
Pressler, Dreier and Bilder, JJ. The opinion of the court was delivered by Pressler, P.J.A.D.
These consolidated appeals arise out of extradition proceedings pursuant to the Uniform Criminal Extradition Law, N.J.S.A. 2A:160-6, et seq., against the three defendants, Frank A. Basto, Martin L. Carbone and Carl J. Palo, Jr., all New Jersey residents. Although each had been admitted to bail when arraigned on a fugitive warrant issued against them by the State of Florida, bail was revoked upon the subsequent issuance of arrest warrants by the Governor of the State of New Jersey. The sole reason for revocation was the trial judges' understanding that the courts of the rendering state are without power to admit a defendant to bail once the Governor's arrest warrant is issued. That conclusion was based upon the holding of In re Lucas, 136 N.J. Super. 24 (Law Div.1975), aff'd o.b. 136 N.J. Super. 460 (App.Div.1975), certif. den. 69 N.J. 378 (1975). We are here asked to reconsider the Lucas holding, which has not been passed upon by the New Jersey Supreme Court. Having done so, we are constrained to disagree with Lucas. Accordingly, we reverse the orders revoking bail and remand to the trial courts for their consideration of the bail question consistent with this opinion.
There is no dispute among the parties as to the relevant facts. All three defendants were charged by the State of Florida with the crimes of conspiracy to commit murder and attempted murder. The same alleged criminal conduct constituted the gravamen of indictments returned against them in the United States District Court for the District of New Jersey and the United States District Court for the Southern District of Florida, each of which had set bail for each defendant in the amount of $200,000. During the pendency of the federal charges, the State of Florida issued fugitive warrants against
each of the defendants based on the Florida charges. Basto and Carbone surrendered to the Essex County Prosecutor's Office, were arraigned by the Superior Court in Essex County, and were each released on bail in the amount of $275,000. Palo surrendered to the Bergen County Prosecutor's Office, was arraigned by the Superior Court in Bergen County, and was released on bail in the amount of $250,000. Upon issuance of the Governor's arrest warrant pursuant to N.J.S.A. 2A:160-15, each appeared again before the court which had initially arraigned him, each stated his intention to pursue the habeas corpus relief afforded him by N.J.S.A. 2A:160-18, and each requested continuation of bail. The application for the continuation of bail pending the habeas corpus hearing was denied on the authority of Lucas. Each defendant then made an emergent application to this court for relief from the respective orders denying bail. We granted leave to appeal and have considered the matter on an expedited basis.
The question of the bailability of a defendant after the issuance of the governor's warrant and pending pursuit of his habeas corpus remedy has received considerable and diverse judicial attention throughout the country, and while the weight of authority still holds that bail is not allowable at that stage of the extradition proceeding, there has been of late, as described by one court, "an emerging minority view" to the contrary. Meechaicum v. Fountain, 537 F. Supp. 1098, 1100 (D.Kan.1982), rev'd 696 F.2d 790 (10th Cir.1983). We are persuaded that the predicates of the majority view, as represented in New Jersey by Lucas, do not withstand either the force of the analysis of the minority view or overriding state constitutional and criminal law principles commonly adhered to in this jurisdiction. Accordingly, we reject the Lucas holding.
The majority and minority view concur as to basic extradition principles. Both recognize the extradition mandate of the Federal Constitution which requires that
[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, par. 2]
Both recognize as well that each state is free to prescribe its own procedures for the performance of its extradition obligation provided only that these procedures are consistent with the constitutional mandate. And both recognize that all states have enacted the Uniform Criminal Extradition Law, 11 U.L.A. 51 (1974), some with minor variation, to govern internal extradition procedures. See id. at 51. And, finally, both agree that from the time of the initiation of the extradition proceeding until the issuance of the arrest warrant by the governor of the rendering state, the defendant may be admitted to bail. Indeed, the Uniform Law expressly so prescribes. N.J.S.A. 2A:160-24, following section 16 of the Uniform Law virtually verbatim, provides that:
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such ...