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State v. Pero

June 18, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. PERO, III, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, S-2617-00.

Before Judges Carchman, Wecker and Weissbard.

The opinion of the court was delivered by: Wecker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2004

By leave granted, defendant, Michael A. Pero, III, appeals an interlocutory order denying his motion to dismiss this indictment for failure to bring the case to trial within the 180-period required by the Interstate Agreement on Detainers (IAD). We affirm.

New Jersey and Connecticut are party states, along with forty-six other states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, to the IAD.*fn2 Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed. 2d 516, 520 (1985). The IAD aims"to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints" by providing cooperative procedures among the party states. N.J.S.A. 2A:159A-1. Under the IAD, where a defendant in one jurisdiction is incarcerated in another jurisdiction, either the prisoner himself (under Article III of the IAD, N.J.S.A. 2A:159A-3) or the prosecutor in the jurisdiction where the charge is pending (under Article IV, N.J.S.A. 2A:159A-4) can initiate proceedings to bring the prisoner to trial. In this case, we deal only with defendant's request under Article III.

N.J.S.A. 2A:159A-3 is New Jersey's enactment of Article III. It provides in pertinent part:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner.

(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

[Emphasis added.]

Failure to abide by the time limit set forth in Article III requires dismissal of the indictment as set forth in Article V:

[I]n the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

[N.J.S.A. 2A:159A-5(c).]

A prisoner's request for final disposition pursuant to Article III requires four documents in prescribed form to be submitted to the prosecutor and the court in the"Receiving State," as defined by N.J.S.A. 2A:159A-2, in this case New Jersey.*fn3 It is the responsibility of the"Sending State," here Connecticut, to send those forms by certified or registered mail, return receipt requested. N.J.S.A. 2A:159A-3(b). The prescribed IAD forms are:

Form 1 -"Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition," to be signed and dated by the warden of the custodial institution where the inmate is held, and then signed and dated by the inmate to acknowledge receipt.

Form 2 -"Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or Complaints," to be addressed to the Prosecutor in the jurisdiction where a charge is pending, signed and dated by the inmate.

Form 3 -"Certificate of Inmate Status," to be signed and dated by the warden, and to include: (1) The term of commitment under which the prisoner is being held, (2) the time already served, (3) time remaining to be served on the sentence, (4) the amount of good time earned, (5) the date of parole eligibility of the prisoner, (6) the decision of the parole board relating to the prisoner, (7) the maximum expiration date under the present sentence, and (8) Detainers currently on file against this inmate from the same state are as follows.

Form 4 -"Offer to Deliver Temporary Custody," to be signed by the warden.

Instructions printed on Forms 3 and 4 provide that"[I]n the case of an inmate's request for disposition under Article III [N.J.S.A. 2A:159-3(a)], copies of [Forms 3 and 4] should be attached to all copies of Form 2." Handbook, supra, at 127, 128; See also Forms 3 and 4, as adopted both by the New Jersey Department of Corrections (DOC), N.J.A.C. 10A:10-1.4(6), and by the Connecticut DOC.

The question, in light of the Supreme Court's decision in Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed. 2d 406 (1993), is whether strict compliance with the procedures set forth for initiating the prisoner's Request for Disposition by the receiving state is required in order to trigger the IAD's 180-day time limit and the severe sanction of dismissal, or whether substantial compliance, specifically, delivery of unsigned Forms 3 and 4, if received with proper Forms 1 and 2, is sufficient. We conclude that unsigned Forms 3 and 4 do not warrant exemption from the rule of strict compliance.

Here is the relevant history as appears in the record. On December 28, 2000, a grand jury indicted defendant on charges of first-degree kidnapping, N.J.S.A. 2C:13-1b; first degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree theft, N.J.S.A. 2C:20-3; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges were based on acts allegedly perpetrated on February 5, 2000; defendant's mother was the alleged victim.

Defendant was indicted on these charges in Bergen County on December 28, 2000 and was scheduled to appear for arraignment on January 22, 2001. When he failed to appear, a warrant issued for defendant's arrest. After his subsequent arrest in Connecticut on unrelated charges, the Bergen County Prosecutor forwarded a detainer to Connecticut prison officials.*fn4 Defendant was sentenced to prison in Connecticut on October 31, 2002.

On November 7, 2002, defendant's informal, handwritten"notice and a request for final disposition," citing Article III of the IAD, was received by the warden of Connecticut's MacDougall-Walker Correctional Institution, where defendant was then held. The warden responded informally on November 14, advising defendant of his right to file for a trial in New Jersey and informing him that"the paperwork will be generated by Records and you will sign the necessary forms with your assigned assessment counselor." On November 19, 2002 defendant signed IAD Forms 1 and 2, provided by the Connecticut DOC as required by N.J.S.A. 2A:159A-3(c), thereby initiating his request for disposition of the New Jersey indictment. Apparently, a"records specialist" in the MacDougall-Walker facility in Connecticut partially completed Forms 3 and 4, which required the warden's signature. But those forms were not signed. The record on appeal includes unsigned Forms 3 and 4, each bearing the typed date November 21, 2002. The records specialist also prepared cover letters addressed to the Bergen County Prosecutor and the"Clerk of the Court" in Bergen County, dated November 21, ...


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