March 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAKUR CARRASQUILLO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-06-0749.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2009
Before Judges Cuff, C.L. Miniman and Baxter.
Defendant, Shakur Carrasquillo, appeals from his February 9, 2007 conviction following a trial by jury on nine counts of a thirteen-count indictment*fn1 that charged him with second-degree burglary, first-degree kidnapping, second-degree conspiracy to commit robbery, second-degree conspiracy to commit burglary, first-degree robbery, third-degree aggravated assault with a deadly weapon, fourth-degree aggravated assault by pointing a firearm, second-degree possession of a firearm for an unlawful purpose, and third-degree credit card theft. After appropriate merger of counts, the judge sentenced defendant on count four, first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), to a thirty-year term of imprisonment subject to the eighty-five percent parole ineligibility term of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were imposed.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE ITEMS SEIZED FROM THE QUEENS MOTEL ROOM
A. The State did not prove that the warrantless entry and search of the motel room fell within an exception to the warrant requirement under the United States and New Jersey Constitutions.
B. The inevitable discovery doctrine, as articulated under the United States and New Jersey Constitutions, did not render the unlawfully seized items admissible.
C. Even if the evidence was admissible under United States and New Jersey constitutional law, the evidence was inadmissible under the constitutional law of New York, where the search occurred, requiring suppression of the items seized in the New Jersey trial.
D. Because the evidence was erroneously admitted at trial, defendant's conviction must be reversed.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE THE STATE VIOLATED THE INTERSTATE AGREEMENT ON DETAINERS
III. DEFENDANT'S CONVICTION FOR FIRST-DEGREE KIDNAPPING SHOULD BE VACATED (plain error)
A. The conviction stands on insufficient evidence; permitting it to stand would violate defendant's double jeopardy rights.
B. The trial court's charges on the "released unharmed" finding required for first-degree kidnapping was inadequate.
IV. DEFENDANT'S SENTENCE IS EXCESSIVE
In a pro se supplemental brief, defendant also argues:
I. DURING THE HEARING ON THE MOTION TO DISMISS THE INDICTMENT FOR VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS THE PROSECUTOR COMMITTED MISCONDUCT BY KNOWINGLY FAILING TO CORRECT THE MISREPRESENTATIONS MADE TO THE COURT THAT THE DEFENDANT'S SENTENCE FROM NEW YORK STATE HAD EXPIRED WHEN THE PROSECUTOR POSSESSED INFORMATION TO THE CONTRARY AND THE MISREPRESENTATION FORMED THE BASIS OF THE TRIAL COURT'S RULING. THEREFORE THE RULING SHOULD BE REVERSED AND THE INDICTMENT SHOULD BE DISMISSED AS WARRANTED.
IV. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT BY THE INTRODUCTION OF HEARSAY TESTIMONY OF A NON-TESTIFYING WITNESS. THEREFORE THE CONVICTION SHOULD BE REVERSED.*fn2
We turn first to Point II, and conclude that the judge's findings of fact on the Interstate Agreement on Detainers (IAD) issue are not sufficiently precise to permit appellate review of this threshold claim. Consequently, we remand to the trial court for more detailed findings on the three issues we discuss later in this opinion. Such proceedings are to be completed within forty-five days. If upon remand, the trial judge concludes that the State complied with the 120-day time limit imposed by the IAD, defendant may then proceed with his appeal on the IAD issue, and the other issues presented on this appeal that we do not decide today in light of our remand on the IAD issue. If, in contrast, the judge concludes that the time limit provided by that statute was violated, the judge is directed to enter an order dismissing the indictment with prejudice.
These are the most pertinent facts the State presented at trial. On April 8, 2003, Daniel Chapple telephoned Megan O'Shay, whom he knew as Nadia. She was a prostitute with whom he had an encounter approximately one month earlier. He left a message on O'Shay's cell phone asking her to come over to his Harding Township home. Later that day, O'Shay returned Chapple's call and agreed to do so. On her way, she stopped at the Crown Motor Inn in Queens, where she was staying with defendant. After defendant suggested the two rob Chapple, they devised a plan calling for O'Shay to handcuff Chapple as part of their sexual encounter, at which time defendant would enter the house and rob him.
O'Shay, who pled guilty and testified against defendant, testified that after she handcuffed the victim, defendant entered the house wearing a black ski mask and holding a gun. According to the testimony of both O'Shay and Chapple, defendant took Chapple's wallet and then pointed a gun at Chapple's head while ordering Chapple to give him the PIN number for Chapple's ATM card. Chapple complied after defendant struck him in the head with the butt of the gun. After also stealing a laptop, a watch and two rings from Chapple's home, O'Shay and defendant left.
Although still handcuffed, Chapple was able to call police by dialing "0" on his cell phone. Police found Chapple handcuffed, partially clothed and bleeding from the head. They were able to lift latent fingerprints, which were later determined to be O'Shay's and defendant's.
Using subscriber information from the telephone number that appeared on Chapple's cell phone, police obtained an address for defendant in the Bronx. Through further investigation, police also learned that the woman who withdrew money from an ATM machine using Chapple's card was O'Shay, and that she drove a silver Lexus with Massachusetts plates. New York City police located O'Shay's Lexus in the parking lot of the Crown Motor Inn in Queens. They waited until defendant came to the front desk of the motel to pay his bill, at which time they arrested him. Using a swipe card they obtained from defendant, police opened defendant's motel room, where they found O'Shay asleep in the room. The officers arrested her immediately. They also observed a rifle, two handguns, ammunition and a laptop computer on a bureau.
Harding Township police did not accompany the New York officers to the motel. Instead, they remained at the precinct house in Queens with the intention of going before a New York judge to seek a search warrant. That plan was abandoned, however, once the Harding Township officers learned that New York police had already entered the motel room and had obtained consent to search from O'Shay, who authorized police to search the motel room, her residence in Queens, and her silver Lexus. After obtaining O'Shay's consent, police re-entered the motel room and retrieved the weapons and laptop they had seen earlier. In the room, they found Chapple's ATM card and jewelry. Shortly after her arrest, O'Shay gave police a statement admitting that she and defendant robbed Chapple at his Harding Township home.
On February 27, 2006, defendant filed a motion to suppress, contending that the warrantless search of the motel room was not justified by any exception to the warrant requirement. He maintained that because he and O'Shay had both been arrested, police had full control of the scene and the motel room, thereby negating the State's claim of exigent circumstances.
On October 26, 2006, the judge denied defendant's motion to suppress. The judge declined to accept the State's argument that the warrantless search was justified by exigent circumstances, because defendant was already in custody and secured prior to the search. The judge also observed that the consent obtained from O'Shay to search the motel room was not obtained until after the warrantless entry into the motel room had already occurred, thereby vitiating consent as a valid basis for the search. Ultimately, the judge held that the evidence seized would inevitably have been discovered. Accordingly, the judge denied defendant's motion to suppress.
As we have already discussed, defendant filed a motion to dismiss the indictment based upon an alleged violation of the IAD. We turn to a discussion of the facts pertaining to his transfer to New Jersey and the events that transpired after his arrival here.
On April 27, 2005, a Superior Court judge in Morris County granted the prosecutor's request for temporary custody of defendant, pursuant to the IAD, authorizing his transfer from New York to New Jersey to stand trial on the pending indictment. In relevant part, the IAD requires the State to commence trial within 120 days of the inmate's arrival, whenever the request for temporary custody is initiated by the State. N.J.S.A. 2A:159A-4(c). On August 23, 2005, pursuant to the State's IAD request, defendant was transferred to the Morris County Correctional Facility (MCCF). Thus, the 120-day time period set forth in N.J.S.A. 2A:159A-4(c) expired on December 21, 2005.
Between October 2005 and January 2006, defense counsel, without filing a formal motion, sought discovery of the cell phone records of Chapple and O'Shay. During that time, the court conducted status conferences relating to the outstanding discovery, and the judge requested that defense counsel keep him apprised of his progress in obtaining those phone records.
By letter dated October 26, 2005, defense counsel requested from the prosecutor copies of the phone records that had been subpoenaed by either police or the Morris County Prosecutor's Office. At some unknown time between September 2005 and January 2006, defense counsel made a request of the Public Defender's Office, and obtained approval, to utilize the services of its investigators to obtain those phone records. Although it is unclear when the Public Defender's investigator received that request, by memorandum dated January 20, 2006, an investigator from the Office of the Public Defender informed defense counsel that he had obtained some of the requested phone records, and that the remaining records were expected to be received by January 27, 2006.
On February 7, 2006, O'Shay pled guilty to second-degree conspiracy to commit robbery and third-degree credit card theft in exchange for a reduced sentence and her agreement to testify on behalf of the State at defendant's trial. During her guilty plea, O'Shea provided a detailed account of defendant's participation in the armed robbery. Defendant sought to view the videotape of O'Shay's plea hearing and a DVD of her oral statement to the prosecutor's office, but encountered difficulty. Not until March 13, 2006, were defendant and his attorney able to do so.
Two weeks earlier, on February 27, 2006, defendant filed a motion to suppress the evidence found in the Queens motel. As we discuss further below, that motion was not heard until October 24, 2006.
On July 11, 2006, defendant filed the motion to dismiss the indictment, asserting that the State had violated the IAD. The motion was heard on September 7, 2006.*fn3 The court found that defendant was transferred to New Jersey on August 23, 2005, pursuant to the State's request under the IAD, and therefore, the 120-day time period set forth in Article IV of the IAD was applicable and expired on December 21, 2005. In denying the motion, the judge observed that although it was "hard to really pin it down to specifics," there was tolling "to some extent" during the time in which defendant sought to obtain Chapple's and O'Shay's phone records.
The judge reasoned that the 120-day time period was tolled because the defense had requested records that were not in the custody and control of the State, and were not records that the State was required to turn over under Rule 3:13-3. Although the precise date when the Public Defender's investigator received approval to process the request was unknown, the court found that there was a "desire" to get those records within the 120-day time period. The judge concluded that tolling had occurred at some time within the statutory time period and continued until the end of January 2006, when the requested phone records were received by the defense. The judge did not, however, specify the precise date that such tolling began and ended.
In addition, the judge found that O'Shay's guilty plea and defendant's need to review the recording of the plea proceeding further tolled the statutory time period. Moreover, assuming further events tolled the time for trial until April 2006, the judge held defendant's New York sentence had expired by that time, and thus, the IAD was no longer applicable. While some of these events occurred after the expiration of the 120-day time limit, the court ruled that they "arguably can be deemed to have tolled the time as well."
Despite his finding that the 120-day IAD time limit had been tolled by the events we have described, the judge granted the State's request for a continuance based on the totality of the circumstances. Given the prosecutor's representation that the State would be "ready, willing, and able to try the case as quickly as possible" following the disposition of the pretrial motions, the judge reasoned that a continuance was appropriate. The judge noted that there were no delay tactics on the part of the State or the defense, and the defense discovery motions had been legitimately filed.
Defendant contends that the trial court erred in denying his motion to dismiss the indictment, arguing that the State violated the IAD by failing to bring him to trial within 120 days of his transfer to New Jersey. He also maintains that because the State made a misrepresentation when it advised the judge that his New York sentence expired in April 2006, such prosecutorial misconduct should cause us to order the dismissal of the indictment.
The State responds that the IAD was not violated because the statutory 120-day time period for commencing trial was properly tolled, defendant's sentence in New York had expired while the statutory time period was tolled, and the State requested--and was granted--a continuance for good cause in open court.
New Jersey, along with forty-seven other states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States is a signatory to the IAD. State v. Pero, 370 N.J. Super. 203, 206 (App. Div. 2004). Because the IAD is a "congressionally sanctioned interstate compact," the interpretation of the IAD "presents a question of federal law." Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed. 2d 641, 650 (1981). Therefore, "[f]ederal court interpretations of the IAD . . . [are] binding upon state courts." Pero, supra, 370 N.J. Super. at 214.
"The purpose of the IAD is to expedite outstanding charges in order to protect prisoners from the adverse consequences of detainers."*fn4 Van Winkle v. N.J. Dep't of Corr., 370 N.J. Super. 40, 46 (App. Div. 2004). The IAD permits the transfer of temporary custody of a prisoner by the state of imprisonment, to the state that lodged a detainer. The transfer may be made either on the prisoner's initiative, N.J.S.A. 2A:159A-3(a), or on the initiative of the receiving state, N.J.S.A. 2A:159A-4(c).
Article IV of the IAD, which is at issue here, deals with an application for temporary custody made by a prosecuting official of the receiving state. N.J.S.A. 2A:159A-4(c) provides:
In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving State, but 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. [(emphasis added).]
Because N.J.S.A. 2A:159A-4(c) does not indicate what circumstances constitute "good cause," "the question of whether good cause exists for a continuance must be resolved from a consideration of the totality of circumstances in the particular case, on the background of the considerations which motivated the interstate agreement, as expressed in [N.J.S.A.] 2A:159A-1."*fn5
State v. Lippolis, 107 N.J. Super. 137, 148-49 (App. Div. 1969) (Kolovsky, J.A.D., dissenting), rev'd on dissent, 55 N.J. 354 (1970). "Failure to comply with the 120-day requirement mandates dismissal of the indictment." State v. Millett, 272 N.J. Super. 68, 103 (App. Div. 1994).
Article VI of the IAD provides that the running of the 120 days under Article IV "shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." N.J.S.A. 2A:159A-6(a) (emphasis added). A number of courts, including those in New Jersey, have concluded that a defendant shall be deemed "unable to stand trial" and the running of the 120-day IAD time period shall be tolled, during periods of delay caused by the defendant. See, e.g., United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988) (tolling the running of the IAD time limit when a pretrial motion was filed), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed. 2d 798 (1989); United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994) (holding that delay attributable to disposition of motions filed by the defendant or other co-defendants constitutes "good cause" under the IAD and is excludible from the 120-day computation); and State v. Masselli, 43 N.J. 1, 12 (1964) (holding that the defendant's personal request for leave to file a motion to dismiss the indictment constituted a good-cause reason to toll statutory period).
Although the IAD is silent on who bears the burden of proof in a motion to dismiss an indictment, one federal circuit has held that the prosecution has the burden of demonstrating that continuance of the trial beyond the allowed time limit was permitted by the IAD. See Johnson v. Stagner, 781 F.2d 758, 764 (9th Cir. 1986), see also Brown v. Wolff, 706 F.2d 902, 906-07 (9th Cir. 1983), but see Stroble v. Egeler, 408 F. Supp. 630, 634-35 (E.D. Mich. 1976) (placing the burden of establishing a violation of the IAD on the state prisoner who asserted he was not brought to trial within 120 days after he was transferred to Michigan). In light of the salutory purposes of the IAD, see N.J.S.A. 2A:159A-1, we believe the Ninth Circuit's conclusion in Johnson, supra, and Brown, supra, is more persuasive than the contrary conclusion reached in Stroble, supra.
Here, defendant was brought to New Jersey on August 23, 2005, and therefore the State was required to commence trial on or before December 21, 2005. Jury selection in defendant's trial commenced on November 30, 2006, well over a year after defendant was transferred to New Jersey. Thus, unless that time period was tolled for 344 days until the commencement of defendant's trial, the IAD was violated. Therefore, we turn to an analysis of whether the statutory time period was properly and sufficiently tolled until the commencement of defendant's trial.
The trial court found that defendant's request for discovery of Chapple's and O'Shay's phone records from the prosecution tolled the statutory time period. As we have observed, defense counsel made that request by letter dated October 26, 2005. Defendant contends that his request did not toll the statutory time period, or excuse the State from complying with the IAD.
The trial judge determined that defense counsel's request of the Public Defender's Office to utilize the services of its investigators constituted a "[d]efense motion," since the phone records sought were not in the custody and control of the State and thus were not records that the State was required to turn over under Rule 3:13-3. Although the judge did not provide any legal authority to support his conclusion that defendant's request for discovery tolled the statutory time period, we note that had defendant filed a discovery motion, rather than conduct his own investigation, the statutory time period would have been tolled. Neal, supra, 36 F.3d at 1210.
For that reason, and also because defendant would not have wanted to stand trial until he had obtained those records, we have no reason to quarrel with the judge's conclusion that the running of the statutory time period was temporarily tolled. Specifically, we agree with the judge's conclusion that there was tolling between the day defense counsel asked the investigator to obtain the phone records, and January 27, 2006, when the records were received. We note, however, that the judge never pinpointed the actual date that such request was made. Consequently, we remand for specific findings on that issue.
We note that from the time defendant arrived in the MCCF on August 31, 2005 until the date that defense counsel made his request to the Public Defender's investigator, the IAD time clock ran continuously without any tolling. Thus, if counsel made his request after December 21, 2005, then the motion to dismiss the indictment must be granted on remand. Otherwise, the statutory time period ran without interruption from August 23, 2005 to the date defense counsel made that request to the Public Defender's investigator. Tolling began on the date of such request and ended on January 27, 2006, when the clock again starts to run.
We turn next to the judge's conclusion that the running of the statutory period was tolled from the time O'Shay entered her guilty plea, on February 7, 2006, to March 13, 2006, when defendant viewed the videotape of O'Shay's plea and the DVD of her statement to the prosecutor's office. Neither the entry of O'Shea's plea nor the time that elapsed until defendant could view the videotape and DVD can be considered a "delay occasioned by defendant." Certainly, we cannot lay at defendant's feet the considerable logistical difficulties inherent in arranging for a VCR and DVD player to be brought to his jail cell. Consequently, the statutory time limit is not tolled between February 7 and March 13, 2006. Instead, it runs continuously from January 27, 2006 when defendant received the phone records to February 27, 2006, when defendant filed his suppression motion. Such motion filing tolled the statutory time period. Ibid.; see also Masselli, supra, 43 N.J. at 12.
However, for reasons not clear from the record, the suppression motion was not heard until eight months later, on October 24 and 26, 2006. In light of the salutory purposes of the IAD, we are unwilling to deem the statutory time period tolled for such an extraordinarily long period; however, we recognize that there is always some legitimate interval that will occur between the filing of a suppression motion and the date it is heard. From the record before us, we are unable to determine the appropriate length of that interval here. We remand to the trial court with directions to calculate the shortest period of time reasonably necessary for the filing of briefs and the scheduling of the hearing in light of the availability of witnesses and counsel. Once that tolling interval is established, the judge will be able to calculate the date when the statutory time period again started to run.
We next consider the State's argument, and the judge's finding, that so long as the 120 days had not run by April 2, 2006, any delays after that date were of no consequence because by then defendant had finished serving his New York sentence. Ascertaining the correct day that defendant's New York sentence ended is of critical important because the State's obligation to try a defendant within the 120 days ends if the defendant's outof-state sentence has concluded before the 120 days expires. "The purpose of the IAD is to provide for speedy disposition of charges which are supported by a detainer in order to relieve the prisoner of the uncertainties which tend to obstruct his ability to participate or benefit from prisoner treatment and rehabilitation," and therefore, "the IAD is not implicated after the prisoner is released." State v. Burnett, 351 N.J. Super. 222, 227 (App. Div. 2002). The provisions of the IAD "are for the benefit of persons serving a 'term of imprisonment' and no longer apply after the term of imprisonment ends." State v. Rodriguez, 239 N.J. Super. 455, 458 (App. Div.), certif. denied, 122 N.J. 321 (1990). Consequently, once a defendant is paroled, the IAD is no longer implicated. Ibid.; see also Burnett, supra, 351 N.J. Super. at 227 ("Because defendant was paroled from New York before the expiration of the 180 day period within which he had to be tried if a detainer had been filed, the IAD was no longer implicated.").
We now review the record to determine when defendant's New York sentence ended. The record reveals that the original "Detainer for Inmate" that was issued by the State of New York, Department of Correctional Services (DCS), specified that defendant's "conditional release date" was April 2, 2006. It is clear from the record that the parties and the judge viewed that date as the time when defendant's New York sentence expired and he would no longer be in DCS custody.
However, evidence obtained by defendant during the pendency of this appeal casts considerable doubt on the accuracy of this conclusion. In a supplemental appendix,*fn6 defendant has presented two letters from DCS officials. A letter to defendant from DCS, dated February 23, 2007, asserts that several months earlier, DCS had forwarded a letter to the Morris County Prosecutor's Office (MCPO) advising that defendant would be in New York State custody until a date in 2009. A March 14, 2007 letter from DCS to defendant elaborates further, by alluding to a letter DCS sent to MCPO on August 31, 2006 advising that defendant was "under NYS custody" until April 2009.
Although the record does not contain a copy of the letter that DCS maintains it sent to MCPO, it does contain a copy of a certified mail receipt furnished by DCS and signed by the MCPO on September 6, 2006. The record also contains a copy of an amended DCS detainer reflecting an April 2009 "post release supervision date." The assistant prosecutor asserted in an April 14, 2008 certification*fn7 that he never received any correspondence from DCS referring to an April 2009 release date. We are unable to resolve the conflict between the prosecutor's April 14, 2008 certification and the certified mail receipt defendant has presented.
Consequently, we decline to consider the prosecutorial misconduct claim defendant raises. What is abundantly clear, however, is that the trial judge has never been afforded the opportunity to determine whether defendant finished serving his New York sentence on April 2, 2006, as the State originally represented, or whether defendant's New York sentence will not be completed until April 2009. During remand, the judge is directed to make findings on that issue.
However, in determining when defendant's New York sentence ends for IAD purposes, the judge must determine the date when defendant would have been released from prison confinement in New York, not the date that his parole supervision in New York would have ended.
Finally, the State contends that even if the statutory time period had expired, on September 7, 2006, the trial court properly granted its request for continuance for "good cause" in open court. See N.J.S.A. 2A:159A-4(c). The State correctly argues that even if the statutory time period had expired, the State was not barred from moving for a continuance. "Our court has interpreted N.J.S.A. 2A:159A-5(c)*fn8 to allow continuances 'at any time prior to an actual entry of an order dismissing the indictment'" where the motion for a continuance is filed within the extended time period under N.J.S.A. 2A:159A-6 or any prior continuance. State v. Miller, 299 N.J. Super. 387, 397 (App. Div.) (citation omitted)), certif. denied, 151 N.J. 464 (1997). Here, the request was timely because there was no order dismissing the indictment prior to the State's request for a continuance.
According to the trial judge, the continuance was justified based on the totality of the circumstances, which included the absence of any delaying tactics employed by the State. To determine whether "good cause" exists to grant a prosecutor's request for a continuance, "the focus of the inquiry . . . is the conduct and intent of the prosecutor: did the prosecutor cause the delay due to an error or misunderstanding, or by his inaction, or did he otherwise evince an intention not to diligently pursue the case?" Millett, supra, 272 N.J. Super. at 105 (citation omitted). "The concern that prosecutors will needlessly delay trial unless properly motivated impels the IAD requirement that trial commence within a reasonable and fixed period of time." Id. at 107. Indeed, "[t]he consequences of official misunderstandings, or administrative errors and negligence, should not be visited on the prisoner who is blameless." Id. at 105 (citing State v. Mason, 90 N.J. Super. 464, 470 (App. Div. 1966)). Moreover, N.J.S.A. 2A:159A-4(c) "requires greater sedulity and expeditious action on the part of law enforcement officials, when the provisions of the cited section of the statute are invoked by them[.]" State v. Chirra, 79 N.J. Super. 270, 277 (Law Div. 1963).
The record reveals that the long delay was principally due to the prosecutor's inaction and failure to diligently move the matter to trial. Indeed, the record is devoid of any evidence that the prosecutor attempted to change the rather desultory pace at which this prosecution was moving. There is no indication in the record that the prosecutor informed the judge that defendant was transferred pursuant to the IAD and therefore must be tried within 120 days of his arrival to New Jersey. Also, there is no evidence in the record that the prosecutor asked the judge to schedule a trial date within the statutory time period, i.e., prior to December 21, 2005. Simply put, the State made no attempt to try defendant within 120 days of his arrival in New Jersey.
Instead, the record suggests that the assistant prosecutor apparently believed the State was entitled to have defendant remain incarcerated in Morris County, without commencing trial, until defendant's New York sentence expired, rendering the IAD inapplicable. He said:
But then we're at the time period now where all of a sudden in April his sentence is done in New York. . . . I really thought that there would be clear case law on this because it was always -- what had been drilled into my head was that once someone is done with their sentence that the IAD no longer applies . . . . I think I've said those words in open court on other cases. The one I can think of is Esock (phonetic) Klenovick (phonetic), who came up here from Florida. And we were all like you know what, the IAD no longer applies because he -- he's done with his Florida sentence.
The trial judge granted the State's request for a continuance on September 7, 2006, over a year after defendant was transferred to New Jersey. Prior to September 7, 2006, when the parties discussed possible trial dates, there is nothing in the record to demonstrate that the State even attempted to schedule defendant's trial.
The State failed to commence trial within a reasonable and fixed period of time as required by the IAD, and its failure to attempt to do so is unexplained. We conclude that the State failed to demonstrate the "good cause" necessary to obtain a continuance under the IAD. Consequently, the granting of a continuance was error.
Thus, upon remand, the judge is directed to apply the standards we have discussed to determine: 1) the tolling period for the cell phone records; 2) the tolling period for the suppression motion that was filed on February 27, 2006; and 3) the date when defendant's New York sentence ended. Those dates must be determined with precision. In light of the number of days that had already elapsed without interruption by the time defense counsel requested the cell phone records, the time line is so close that it will not be sufficient to say, as the judge did during the motion hearing, "there [was] tolling here to some extent," "[i]t's hard to really pin it down to specifics," "it's hard to put a number on it," or "there was arguably further tolling." The remand proceedings must be completed within forty-five days.
Because the granting of the continuance was error, on remand the judge must determine whether the IAD time limit was violated without affording the State the benefit of a continuance. Stated differently, a continuance must not be permitted to save the State from the consequences of a potential finding that the 120-day IAD time limit was violated. Thus, if on remand the judge determines that the 120-day limit was exceeded, he shall enter an order dismissing the indictment with prejudice. See Millett, supra, 272 N.J. Super. at 103. In that event, the judge should notify the Clerk of the Appellate Division, so that this appeal can be dismissed.
If the contrary conclusion is reached, defendant shall so notify the Clerk's Office, which will schedule the submission of any supplemental briefs on the IAD issue and calendar for disposition the remaining unresolved claims defendant has advanced on appeal.
Reversed in part and remanded. Jurisdiction is retained.