On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 01-07-01871-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sabatino.
Defendant appeals from a judgment of conviction for second-degree eluding and imposition of a negotiated three-year custodial sentence based on a downgrade pursuant to N.J.S.A. 2C:44-1f(2).*fn1 On this appeal defendant claims that "the court must dismiss defendant's indictment pursuant to the Interstate Agreement on Detainers [("IAD")] because defendant was not brought to trial in the receiving state for the pending eluding charge within the statutory time limit, thus violating his constitutional right to a speedy trial," and that "under R. 3:21-8, defendant is entitled to the 61 days in detention awaiting extradition to New Jersey after being paroled in New York." We have already disposed of the credit issue by an order, entered on February 1, 2007, because with the credits he would have been eligible for release, and he remained in custody after obtaining parole in New York while awaiting extradition and return to New Jersey. See State v. Beatty, 128 N.J. Super. 488 (App. Div. 1974). What remains, therefore, is whether the indictment should have been dismissed for failure to respect the IAD.
Article III of the IAD may be invoked by a prisoner upon execution and dispatch of the appropriate forms. See N.J.S.A. 2A:159A-3. When he does, the prisoner must "be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting attorney and the appropriate court" of the receiving state the required documents under the IAD. N.J.S.A. 2A:159A-3. Under Article IV, the sending state has thirty days in which to determine the request of a prosecutor for custody, and if defendant is returned to the receiving state, the "trial shall be commenced within 120 days of the arrival of the prisoner." N.J.S.A. 2A:159A-4.
Defendant asserts that he sent completed forms to his attorney in New Jersey and therefore made a request for his return here under Article III. He also asserts that he signed the forms again in May 2002 and submitted them to New York officials to process his return to Bergen County. Defendant further contends that while the second set of forms was apparently not sent to Bergen County, that was the result of "an error on the part of the prison facility" in New York and that he is entitled to a dismissal for violation of Article III. He also asserts that because he was held in New York for four months after the request for his return to New Jersey by the Bergen County Prosecutor, Article IV was violated. Hence, defendant seeks dismissal based on violations of Article III and Article IV of the Interstate Agreement.
Defendant testified on his motion to dismiss that while serving a sentence in New York he executed IAD "Form I" ("Notice of Untried Indictment") and "Form II" ("Request for Disposition") requesting disposition in Bergen County on March 4, 2002, and sent them "back to my attorney's office." However, his "unfinished IAD paperwork" was in his file when he was transferred to the Collins, New York Correctional Facility on April 1, 2002. Also in April, the Bergen County Prosecutor mailed "Form V" ("Request for Temporary Custody") to the Collins Facility requesting defendant's temporary custody. According to Collins Facility Records, on May 23, defendant "indicated that [he] did not wish to sign them" at the time, but on June 20, asked that Forms II, III and IV ("Offer for temporary custody") be sent to his attorney, which was done, even though he was also informed "an extradition hearing was already scheduled for the following week," rendering inapplicable any IAD proceedings. According to defendant he told the Records Coordinator at Collins in May that he did not "know why you're meeting with me, I had already signed these forms and had given them to my attorney."
After indicating that he wanted to return to New Jersey, at a "fugitive" hearing in New York on June 26, 2002, defendant declined to consent to extradition, and was held for thirty days so that a Governor's Warrant could be obtained.*fn2 In September defendant was paroled subject to the Bergen County detainer. He refused to waive extradition at another hearing on October 11, 2002, and a Governor's Warrant by Governor McGreevey was issued on October 21, 2002. Defendant was returned to New Jersey by order of the Supreme Court of New York entered on October 31, 2002.
We affirm the denial of defendant's motion to dismiss the indictment. The record supports the motion judge's conclusion that the Bergen County Prosecutor never received a copy of the forms which triggered Article III and New York officials cannot be blamed therefor. See State v. Hoimes, 214 N.J. Super. 195, 203-05 (App. Div. 1986). Even if New York officials did not act appropriately, all completed forms had to be received by the prosecutor, or he had to have actual notice thereof, in order to trigger Article III. See State v. Pero, 370 N.J. Super. 203, 215-24 (App. Div. 2004).
Moreover, the extradition proceeding had already been scheduled by the time executed forms were given by defendant to officials at Collins for dispatch to New Jersey in June 2002.
Thus, although the prosecutor must continue his efforts "to obtain delivery of the prisoner from the other state with all reasonable diligence and dispatch" the 120-day period under N.J.S.A. 2A:159A-4 is triggered by defendant's return to the receiving state, State v. Chira, 79 N.J. Super. 270, 278 (Law Div. 1963),*fn3 and there is in any event no basis for dismissal when, as here, the prosecutor cannot be faulted for not securing defendant's presence, extradition proceedings were commenced before defendant signed the appropriate IAD forms and defendant declined to waive extradition and voluntarily return to New Jersey. See Pero, supra, 370 N.J. Super. at 220 (emphasizing the need to focus on "the conduct of the prosecutor rather than the conduct of prison officials when dismissal of an indictment under the IAD is at stake"); Hoimes, supra, 214 N.J. Super. at 209; Chira, supra, 79 N.J. Super. at 278.