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In re Basto

Decided: October 1, 1987.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 205 N.J. Super. 233 (1985).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- none. The opinion of the Court was delivered by Clifford, J.


[108 NJ Page 482] This appeal involves the application of principles of extradition law not hitherto addressed by this Court. The issue is whether, pending a habeas corpus hearing and any appeal from the result thereof, a putative defendant (hereinafter "accused" or "extraditee") who has been granted bail after delivering himself into custody in New Jersey pursuant to a requisition warrant issued by the governor of the demanding state is eligible for bail after the governor of the rendition state has issued an arrest warrant. (The foregoing suggests that extradition law has its own nomenclature. This opinion will endeavor

to acquaint the unconversant reader with the terms as they are used.)

Until the decision of the Appellate Division the law in New Jersey was that an accused was not bail-eligible in the stated circumstance. See In re Lucas, 136 N.J. Super. 24 (Law Div.), aff'd o.b., 136 N.J. Super. 460 (App.Div.1975), certif. den., 69 N.J. 378 (1976); In re Thompson, 85 N.J. Eq. 221 (Ch.Div.1915). The Appellate Division expressed its disagreement with Lucas and held that "the trial courts do have the power to admit a defendant to bail during the pendency of the habeas corpus challenge to extradition" after the issuance here of the governor's warrant. Matter of Basto, 205 N.J. Super. 233 (1985). We affirm the judgment below, although the basis for our decision -- statutory interpretation -- is narrower than that resorted to by the Appellate Division, and the scope of our holding, applying as it does only to nonfugitive extraditees, is more limited.


The respondents in this Court are Frank Basto, Martin Carbone, and Carl F. Palo. They are denominated "accuseds" or "extraditees" rather than "defendants" because they have not been charged with any offense in New Jersey. Rather, they were charged by the State of Florida -- the "demanding" or "requisition" state -- with the crime of conspiracy to commit murder and with attempted murder. As well, there were federal proceedings against them in both Florida and New Jersey. The Florida state charges are based on conduct of the accuseds while they were in New Jersey, not in Florida. There was no allegation, therefore, that the accuseds fled from Florida to avoid apprehension or that they for any reason sought refuge here -- factors of critical constitutional and statutory significance. They are New Jersey residents with roots in their respective communities. Florida sought to extradite the three accuseds under the "non-fugitive" provisions of the relevant

statute, as appears below. The accuseds do not argue that Florida lacks jurisdiction to try them for the charges.

Although they were originally granted bail when they surrendered to New Jersey authorities, the accuseds suffered revocation of their bail following the issuance of an arrest warrant by the Governor of New Jersey -- the "asylum" or "rendition" state. The trial courts (two of the accused appeared in Passaic County, the third in Bergen County) denied applications for release on bail pending their pursuit of relief by way of habeas corpus. Those separate courts considered themselves bound by In re Lucas, supra, 136 N.J. Super. 24, aff'd o.b., 136 N.J. Super. 460, certif. den., 69 N.J. 378. The Appellate Division granted leave to appeal, consolidated the separate appeals, expedited its consideration of the appeals, and reversed. We granted the State's motion for leave to appeal. 102 N.J. 401 (1986).


As it stands, the case is now moot. In March 1986, after the Appellate Division had handed down its opinion and after this Court had granted leave to appeal, the accuseds were ordered by the United States District Court for the Southern District of Florida to appear for arraignment on federal charges. When they appeared voluntarily in federal court, the Florida state authorities filed a detainer against them, and they were held in federal custody pending a bail hearing on the state charges. The Florida state court denied bail; consequently, the accuseds (defendants in Florida) chose not to post bail on the federal charges, and they remain in federal custody in Florida.

Despite this posture of the case we choose to decide the issue presented by the appeal. It is of some moment, is apt to recur, see, e.g., In re Farrell, 108 N.J. 335, 353 (1987), and given the very nature and pace of extradition proceedings, there is considerable likelihood of mootness, tending to frustrate appellate resolution of the issue. See, e.g., In re Ballay,

482 F.2d 648, 651 (D.C.Cir.1973); Matter of Conroy, 98 N.J. 321, 342 (1985). Moreover, it is important that we resolve the direct disagreement between the Lucas and Basto panels of the Appellate Division, at least to the extent that those decisions apply to nonfugitive extraditees.


To prevent the states from serving, unwittingly or otherwise, as havens for fugitives from sister states, the United States Constitution provides for the rendition of fugitives. U.S. Const. art. IV, ยง 2; see Note, "Interstate Rendition And The Fourth Amendment," 24 Rutgers L.Rev. 551, 553 n. 13 ...

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