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State v. Kolenovic

August 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ESAD E. KOLENOVIC, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0605.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 30, 2009

Before Judges Stern and Parker.

Defendant Esad E. Kolenovic appeals from a judgment of conviction entered on June 7, 2007 after he pled guilty to four counts of third degree burglary, N.J.S.A. 2C:18-2; four counts of fourth degree theft of credit cards, N.J.S.A. 2C:21-6c(1); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth degree hindering his own prosecution by giving false information, N.J.S.A. 2C:29-3b(4); third degree theft by unlawful taking, N.J.S.A. 2C:20-3; fifteen counts of third degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; third degree theft by deception, N.J.S.A. 2C:20-4; third degree theft of identity, N.J.S.A. 2C:21-17a; second degree obstruction of law, N.J.S.A. 2C:29-1; two counts of fourth degree possession/sale of a simulated government document, N.J.S.A. 2C:21-2.1d; fourth degree receipt of stolen property, N.J.S.A. 2C:20-7; second degree making of a simulated government document, N.J.S.A. 2C:21-2.1b; and a disorderly persons offense of receipt of stolen property, N.J.S.A. 2C:20-7a. Defendant was sentenced pursuant to a plea agreement to an aggregate term of ten years subject to three years parole ineligibility.

These charges arose out of a series of burglaries and thefts from the men's locker room of the Warren Health & Racquet Club in Somerset County. Club members discovered their credit cards missing from their lockers after returning from a workout. The management of the club contacted the police and approved the installation of surveillance cameras in an area outside the men's locker room. Defendant was photographed entering and leaving the men's locker room on several occasions. He was not a member of the club and did not have permission to be on the premises. A police investigation disclosed that defendant made numerous fraudulent purchases with club members' stolen credit cards, purchasing a variety of items, including jewelry, computers, televisions, mattresses and home goods. Defendant was identified on store video cameras and by store employees, using the stolen credit cards in a variety of stores. He was arrested at the club on June 10, 2004 after managers, who were familiar with his surveillance photos, notified police that he was on the premises. The police searched a 1988 Chevy Suburban found in the club parking lot that matched the description given by the employee of a mattress store where defendant had made a fraudulent credit card purchase. They found a laptop computer in the Suburban that defendant had used to manufacture false driver's licenses.

After his arrest, defendant gave the police his brother's name rather than his own and attempted to resist fingerprinting. The police discovered that defendant had two false driver's licenses with his photograph under fraudulent names. A $200 gift card and phone cards that had been purchased with the stolen credit cards were found on defendant's person when he was arrested.

Defendant was indicted in August 2004. Two weeks after posting bail on September 2, 2004, he was detained in Florida on other charges. He was transferred back to New Jersey at the end of November 2005. A February 14, 2006 trial date was set in accordance with the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15.

Thereafter, defendant moved to dismiss the indictment on the ground that the State failed to comply with the IAD. If a defendant with a detainer in New Jersey is serving a prison term in another state, the defendant may request that the New Jersey case be brought to trial through the IAD. Pursuant to N.J.S.A. 2A:159A-3(a), the defendant 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. [Emphasis added.]

The "caused to be delivered to the prosecuting officer and the appropriate court" language of the statute is generally accepted to mean within 180 days of the date on which the prosecutor receives a defendant's request for "final disposition." State v. Pero, 370 N.J. Super. 203, 212 (App. Div. 2004). If the matter is not tried within 180 days, the IAD requires dismissal of the indictment. Fex v. Michigan, 507 U.S. 43, 49-50, 113 S.Ct. 1085, 1089-90, 122 L.Ed. 2d 406, 413-14 (1993); State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978).

Here, defendant claims that he initiated his request under the IAD on March 3, 2005. He maintains that he made a subsequent demand for a speedy trial on June 10, 2005. Defendant was unable to provide any documentary evidence to corroborate his claims that notices had been initiated on March 3 and June 10, 2005. There is no dispute, however, that an IAD request was received by the Somerset County Prosecutor on July 25, 2005. The trial court acknowledged the July 25, 2005 date for accrual of defendant's claim for a final disposition within 180 days.

Defendant completed his Florida term of imprisonment on December 21, 2005, prior to expiration of the 180-day period.

Consequently, the trial court found that, even though defendant did not have a final disposition of the charges before the expiration of the 180 days, the IAD no longer applied after his December 21, 2005 release from Florida State Prison. State v. Rodriguez, 239 N.J. Super. 455, 458-59 (App. Div.), certif. denied, 122 N.J. 321 (1990); Carrion v. Pinto, 79 N.J. Super. 13, 16 (App. Div. 1963).

In this appeal, defendant argues:*fn1

POINT I

THE TRIAL COURT ABUSED ITS D[I]SCRETION WHEN IT DENIED MR. KOLENOVIC'S MOTION TO DISMISS THE INDICTMENT BASED ON THE STATE'S FAILURE TO COMPLY WITH THE INTERSTATE AGREEMENT ...


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