On appeal from the Superior Court, Law Division, Hudson County.
Furman, Brody and Long. The opinion of the court was delivered by Long, J.A.D.
[222 NJSuper Page 94] The question we address today is whether the speedy trial clause of the Sixth Amendment to the United States Constitution applies to a period of time during which a defendant is not in jail or under any official restraint. In confronting this issue, we have adopted the approach recently enunciated by the United States Supreme Court in United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986) and have
concluded that the time during which a defendant is not subject to liberty restraints should not apply in calculating a denial of a speedy trial claim.
The facts of this case are as follows: In September, 1981, defendant, Thomas LeFurge, was indicted by a Hudson County Grand Jury for theft of moveable property of a value in excess of $500 (N.J.S.A. 2C:20-3) and for theft by failure to make required disposition of property (N.J.S.A. 2C:20-9). A trial was held in May of 1982. At the end of the State's case, the count charging a violation of N.J.S.A. 2C:20-9 was dismissed. The trial judge then announced his intention to instruct the jury that it could find LeFurge guilty of the crime of conspiracy to commit theft pursuant to N.J.S.A. 2C:1-8(d)(2). On May 11, 1982, the jury returned a verdict acquitting LeFurge of the remaining theft charge and convicting him of conspiracy to commit theft.
LeFurge made several post-trial motions including a motion in arrest of judgment which was granted on June 25, 1982, on which date the conspiracy charge was dismissed. On August 21, 1982, the State filed a notice of appeal. By Petition for Extension of Time, filed January 28, 1983, the State was granted thirty additional days within which to file its brief. That brief was filed on March 7, 1983.
On August 23, 1983, this court entered an order that no brief on behalf of LeFurge would be accepted for filing. This order was subsequently vacated and LeFurge filed a brief on March 22, 1984. On June 21, 1984, this court affirmed the judgment of the trial court. In July 1984, the State filed a Notice of Petition for Certification. LeFurge filed a letter brief and affidavit in opposition to the petition on January 19, 1985. On March 21, 1985, certification was granted to decide the following question:
The critical issue in this case is the constitutionality of N.J.S.A. 2C:1-8(d)(2), which provides that a defendant may be convicted of a conspiracy to commit a substantive offense even though the crime of conspiracy was not charged in the indictment.
Supplementary briefs, reply briefs and letters were filed by both parties, the last pleading dated July 25, 1985. Oral argument took place on September 24, 1985. On January 9, 1986, the Supreme Court reinstated LeFurge's conviction.
LeFurge was sentenced on February 14, 1986, to five-year probation on condition that he serve 250 days in the Hudson County Jail. A Violent Crimes Compensation Board penalty of $50 was also imposed. The execution of sentence was stayed and LeFurge was released on bail. LeFurge appeals claiming that:
THE INORDINATE DELAY IN THE DISPOSITION OF THE STATE'S APPEAL DEPRIVED THE DEFENDANT OF RIGHTS ARISING FROM THE UNITED STATES ...