The defendant was arrested in New Jersey as a fugitive from Justice from Colorado for a conviction of a felony offense in Colorado. The Colorado court sentenced the defendant to state prison but stayed the time when the defendant was to commence serving his sentence so that he could complete an in-patient alcohol/drug program. As a condition of the stay, the defendant was to execute a personal recognizance bond. When the stay was granted, the defendant was not brought before a Judge in Colorado, but rather the defense attorney conducted a telephone conference call with the Assistant District Attorney and the Judge to secure the stay. The defendant subsequently signed the recognizance bond, which contained a waiver of extradition provision, and his signature was witnessed by the defense attorney. The defendant subsequently terminated his participation in the inpatient program, fled the Colorado jurisdiction, came to New Jersey and was arrested on a fugitive warrant.
The defendant was brought before this court under the Uniform Criminal Extradition Act, N.J.S.A. 2A:160-1 to-35. and refused to waive extradition. The State of New Jersey sought to extradite the defendant to Colorado based on the waiver contained in the personal recognizance bond executed in Colorado. The defense alleged that since the defendant was not brought before a Judge in Colorado, he could not be extradited to Colorado based on the waiver and that he was entitled to an extradition hearing pursuant to the Uniform Extradition Act, supra.
New Jersey to date has not addressed the issue of whether a defendant, not on parole or probation, may be extradited to a demanding state based on waiver of extradition executed in a
demanding state where the defendant has not been brought before a Judge in that state.
The defense argues that N.J.S.A. 2A:160-30 requires that any waiver of extradition be executed in the presence of a Judge. The statute reads in relevant part:
Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole, may waive the issuance and service of the warrant provided for in sections 2A:160-15 and 2A:160-16 of this title and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a Judge of any criminal court of record within this state a writing which states that he consents to return to the demanding state. . .
The requirement that the defendant execute or subscribe a waiver in the presence of a Judge of any criminal court applies only if the defendant is waiving in the sending state. In this case, the defendant executed the waiver in the demanding state and therefore that section of the statute is not applicable to this case. Furthermore, the waiver executed by the defendant falls within another portion of N.J.S.A. 2A:160-30, which reads:
Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or this state.
The requirement that a waiver must be signed in the presence of a Judge is not an exclusive procedure. While there are no New Jersey cases directly on point, State v. Maglio, 189 N.J. Super. 257, 459 ...