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State v. Hoimes

Decided: December 16, 1986.


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Petrella and Scalera.

Per Curiam

The State appeals from an order dismissing the indictment returned against the defendant, Kostas Hoimes, on the basis that the State failed to comply with the time limits imposed by the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 et seq. We reverse.

Preliminarily we note that the "record" on this appeal consists only of the indictment, docket entries, several orders, a series of letters exchanged between defendant, counsel and the trial court, and copies of defendant's petitions for a writ of habeas corpus, filed pro se, and containing uncertified and unverified allegations. Although the parties have not addressed this omission as an issue before us, the lack of such a basic requirement limits a review necessary for a proper disposition. Nevertheless, certain of the undisputed facts set forth in the briefs and the sparse record presented do furnish a basis from which we have gleaned sufficient information to conclude that the trial court improvidently dismissed the indictment.

On January 28, 1981 Hoimes allegedly telephoned the manager of Harrah's Marina Hotel and Casino in Atlantic City and threatened to detonate an explosive device in the casino unless $750,000 was left in a suitcase at the front entrance. Shortly thereafter defendant took a cab to the casino and instructed the driver to pick up the suitcase containing the money. Defendant was apprehended immediately after the cab's departure from

the casino. A search revealed that he was in possession of a .22 calibre pistol. On March 25, 1981 the Atlantic County Grand Jury indicted defendant for attempted theft by extortion, in violation of N.J.S.A. 2C:5-1 and 2C:20-5 and for possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4.

The case was originally scheduled for trial beginning July 27, 1981. However, since defendant was still recovering from quadruple coronary bypass surgery the case was adjourned until September 14, 1981. When defendant's health had not improved by that time the case was placed on the inactive list. In addition, the trial court ordered defendant to submit a written report from a treating physician every five weeks indicating his medical status and his ability to stand trial. Defendant apparently failed to comply with this aspect of the order. The State, however, also failed to take action until, in a letter dated December 29, 1982, it requested documentation from defendant's then attorney concerning defendant's medical condition so that it could arrange for a physician to examine him in an effort to move the case. Apparently this was never accomplished.

Eventually, the case was removed from the inactive list and scheduled for trial on November 14, 1983. However, defendant was again hospitalized the day before the trial and the case was rescheduled for December 12, 1983. When defendant failed to appear for trial a bench warrant was issued but it was vacated when the State learned that defendant had again been hospitalized for the heart condition on December 11, 1983. The case was rescheduled for January 30, 1984. When defendant failed to appear again another bench warrant was issued.

On May 4, 1984 defendant was arrested in Pennsylvania on federal charges. At this time he was also formally charged with being a fugitive from New Jersey and was advised that New Jersey had lodged a detainer against him. On May 17, 1984 the State notified the Pennsylvania authorities of its intent

to request temporary custody of defendant pursuant to the IAD. Despite repeated requests, it was unable to obtain custody of defendant. The State alleges that it was not notified until October 17, 1984 of the status of defendant's federal case and of the fact that defendant had been hospitalized on October 15 after suffering another heart attack. On December 6, 1984 defendant, through Pennsylvania counsel, requested that the State either lift its detainer or agree not to act on it pending disposition of the federal charges. The State, however, refused to do so.

In the meantime, defendant appeared before a federal judge at which time the federal prosecutor advised the court of the New Jersey detainer. Notwithstanding this, defendant was released to the Marworth Center, a private drug, alcohol and psychiatric rehabilitation facility in Waverly, Pennsylvania. (Defendant alleges that he was free to leave this facility at any time but that he chose to remain and avail himself of the rehabilitative treatment.) In late January 1985 defendant was sentenced by the federal judge to two years in prison and three years probation. At that same time the State unsuccessfully attempted to obtain custody of defendant. Instead, defendant was transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri. In order to allow defendant's condition to stabilize, the State decided not to actively seek defendant's extradition.

On June 20, 1985 defendant requested the Missouri prison authorities to inform him if any detainers had been lodged against him and was told that there were none. Apparently, the detainer filed by New Jersey with the federal authorities in Pennsylvania had not been forwarded to Missouri.

On July 9, 1985 defendant filed a petition for a writ of habeas corpus with the federal district court in Missouri. In that petition defendant acknowledged that there was no New Jersey detainer filed against him but also requested the following relief:

(1) A declaratory order stating that any further prosecution by the State of New Jersey would violate his right to a speedy trial under the Sixth Amendment to the United States Constitution;

(2) An injunction forbidding the Attorney General of the United States, the State of Missouri and any other respondent from holding him for prosecution of the New Jersey charges.

The federal court refused to entertain the petition. About this time, the defendant also forwarded letters to Deputy Attorney General Ross Begelman and to the Atlantic County Criminal Presiding Judge requesting that they help him "dispose of this obstacle", referring to the instant indictment. He enclosed a copy of the petition that he had filed in federal court. He related his poor medical condition and then asserted the position that since there was no New Jersey detainer outstanding against him the State had lost jurisdiction to try him, based generally on speedy trial grounds.

In July or August 1985, apparently in response to defendant's communications, the State renewed active attempts to extradite the defendant from Missouri. When it learned that the original detainer had not been lodged in Missouri, the State promptly filed a second detainer. In August 1985 defendant's local private attorney was relieved and he was then assigned counsel from the local Public Defender's office. On ...

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