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State v. Carrasquillo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 17, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
SHAKUR CARRASQUILLO, DEFENDANT-APPELLANT/CROSS-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-06-0749.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 30, 2009

Decided Telephonically argued after remand March 3, 2009

January 19, 2010

Before Judges Cuff, C.L. Miniman and Baxter.

This is the State's appeal of an October 28, 2009 Law Division order that dismissed an indictment based on a finding that the State violated defendant Shakur Carrasquillo's rights under the Interstate Agreement on Detainers (IAD). The State's arguments come before us as a cross-appeal following our remand to the Law Division.

In defendant's direct appeal of his conviction, we reviewed defendant's claim that he established a violation of the IAD, and therefore the trial court erred when it denied his motion to dismiss the indictment. We concluded that the judge's findings of fact on the IAD issue were "not sufficiently precise to permit appellate review" of defendant's IAD claim. State v. Carrasquillo, No. A-4497-06 (App. Div. March 3, 2009) (slip op. at 4). Consequently, we remanded to the trial court for more detailed findings on three issues. Id. at 27.

In particular, we directed the judge to determine on remand the precise dates upon which the running of the 120-day limit*fn1 imposed by the IAD should be tolled for two events initiated by defendant: obtaining cell phone records of the victim and a co- defendant; and filing his motion to suppress evidence, and the court resolving the motion. Ibid. We also asked the judge to determine the date when defendant's New York sentence would have ended, because if defendant's New York sentence was complete before the IAD time limit expired, there could be no IAD violation. Ibid.

On October 28, 2009, after conducting three days of hearings that covered 284 transcript pages, Judge Falcone rendered an oral opinion addressing the factual questions that were the subject of the remand proceeding. The judge concluded that, even with the tolling of the 120-day time limit of the IAD for defendant to obtain the cell phone records, and for the filing of briefs and the scheduling of defendant's suppression motion, the 120-day limit within which the State was required to bring defendant to trial under the IAD had expired while defendant was still serving his New York sentence, and before defendant's trial began. Consequently, on October 28, 2009, Judge Falcone entered an order dismissing the indictment with prejudice. The judge stayed the dismissal of the indictment until November 7, 2009 to afford the State the opportunity to seek emergent review from this court. By order of November 16, 2009, we continued the stay and authorized the State to file a cross-appeal challenging the dismissal of the indictment.

After a thorough review of the State's arguments, we decline the State's request that we reconsider our earlier determination, id. at 25-27, that the continuance issued to the State -- which resulted in a lengthy relaxation of the 120-day IAD time limit -- was improvidently granted and should therefore be disallowed. Additionally, we reject the State's argument that Judge Falcone erred when he concluded that the IAD time limit expired before defendant would have been released from confinement on his New York sentence. We affirm the October 28, 2009 order that dismissed the indictment.

I.

We need not repeat our discussion of the proofs the State elicited at defendant's trial, which resulted in his February 9, 2007 conviction on charges of second-degree burglary, first-degree kidnapping, third- and fourth-degree aggravated assault, and related weapons and conspiracy charges; the facts are set forth in our earlier opinion. Id. at 5-7. Although the factual questions we asked the judge to resolve on remand were also discussed at some length in our prior opinion, we review them here, along with a discussion of some of the pertinent contextual background.

On April 27, 2005, a Morris County judge granted the prosecutor's request for temporary custody of defendant pursuant to the IAD, thereby authorizing his transfer from a New York prison, where he was currently serving a sentence, to New Jersey to stand trial on the pending indictment. As we have noted, the IAD requires the State to commence trial within 120 days of the inmate's arrival, whenever, as here, 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) would have expired on December 21, 2005; however, the running of that 120-day time limit is "tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter."*fn2

N.J.S.A. 2A:159A-6(a) (emphasis added).

Jury selection in defendant's trial commenced on November 30, 2006, well over a year after defendant was transferred to New Jersey. Thus, unless the IAD time limit was tolled for 344 days until the commencement of defendant's trial, or unless defendant's New York sentence ended prior to the expiration of the 120-day IAD time limit, that time limit was violated.

In our 2009 opinion, we considered the State's argument that even if the statutory time period had expired earlier than September 7, 2006, which was the date the court heard defendant's motion to dismiss the indictment, the IAD violation should be disregarded because the State had presented, pursuant to N.J.S.A. 2A:159A-4(c), "good cause" for a continuance. State v. Carrasquillo, supra, slip op. at 23. Judge Falcone had granted the State's request for a continuance, concluding that such relief was justified based upon the totality of the circumstances, which included the absence of any delaying tactics employed by the State. Id. at 24. In evaluating the judge's grant of a continuance, which had the effect of excusing the State's failure to comply with the 120-day IAD time limit, we observed that "'[t]he consequences of official misunderstandings, or administrative errors and negligence, should not be visited on the prisoner who is blameless.'" Id. at 25 (quoting State v. Millett, 272 N.J. Super. 68, 105 (App. Div. 1994)). Ultimately, we concluded that the judge's September 11, 2006 grant of the continuance was error. We reasoned:

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.

[Id. at 25-26.]

Thus, with our disallowance of the judge's grant of the continuance to the State, we held, relying on Millett, supra, 272 N.J. Super. at 103, that if the judge concluded on remand that the 120-day IAD time limit had been exceeded, he should enter an order dismissing the indictment with prejudice. Id. at 28.

As to the events that tolled the running of the 120 days, we noted that the trial court had considered several that had done so. First, we discussed the judge's finding that defendant's request for discovery of the victim's and co-defendant's cell phone records tolled the statutory time period. Id. at 17-18. Although the request for the phone records was initially sent to the State, the State notified defendant that those records were not in its possession. Ibid. Therefore, defense counsel asked an investigator to obtain the records; however, the judge never pinpointed the actual date that such request was made. Id. at 18. The only date that was precisely determined was January 27, 2006, when the investigator obtained the records and turned them over to defense counsel. We therefore remanded for specific findings on the precise date that defense counsel asked the investigator to obtain the phone records, ibid., because it was on that date that the tolling related to the phone records would have begun.

We noted 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 had run continuously without any tolling. Thus, if counsel made his request after December 21, 2005, then the motion to dismiss the indictment was required to be granted on remand. Ibid. Otherwise, the statutory time period ran without any interruption from August 23, 2005 to the date defense counsel made his request to the Public Defender's investigator. Id. at 18-19.

During the remand proceedings, based upon a joint exhibit moved into evidence without objection, the judge found that the date when defense counsel requested the investigator to obtain the phone records was November 11, 2005. Thus, the IAD time clock was tolled from November 11, 2005 through January 27, 2006. By the time the clock began to run again on January 28, 2006, eighty of the 120 days had already elapsed. From January 27, 2006, when defendant received the phone records, the clock began to run again, and was not tolled until February 27, 2006, when defendant filed his motion to suppress evidence. During this time, thirty days had passed, thus bringing the total elapsed days to 110 by the time defendant's suppression motion was filed. The State does not dispute any of those calculations or the judge's findings on the request for the phone records.

The second tolling question we asked the judge to determine on remand was when the clock began running again following defendant's filing of his motion to suppress. In our 2009 opinion, we observed that for reasons not clear from the record, defendant's suppression motion was not heard until October 24 and 26, 2006, which was eight months after the motion was filed. Id. at 19. We recognized that although "there is always some legitimate interval that will occur between the filing of a suppression motion and the date it is heard," an eight-month period was far too long a period for the IAD time limit to be tolled, especially "[i]n light of the salutary purposes of the IAD." Id. at 19-20. Based on the record before us in 2009, we were unable to determine the appropriate length of that time interval. Id. at 20. Consequently, we remanded to the trial court with instructions 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." Ibid. We noted that once such tolling interval was established, the judge would be able to calculate the date when the statutory time period of the IAD again started to run. Ibid.

The testimony on remand demonstrated that at a status conference in the early part of February 2006, defense counsel advised the court that he would soon be filing a motion to suppress evidence. The State represented that it could file its brief justifying the warrantless search within one week of defendant filing his motion to suppress.*fn3 Defendant filed his suppression motion on February 27, 2006. Although the State had represented at the status conference that it would file its brief within one week, the State did not actually file its brief until nearly three months later, on May 23, 2006. The brief the State filed in opposition to defendant's motion was only six and one-half pages long, of which only two pages contained legal argument; the other four pages stated the facts. Defendant filed his brief on June 1, 2006, a mere nine days after receiving the State's brief.

Rather than limit the State to the one-week interval it represented in February 2006 was all the time it would need to file its brief, Judge Falcone instead determined at the remand hearing that the running of the IAD clock should be tolled for six weeks -- until April 14, 2006 -- for the State to submit its brief opposing defendant's suppression motion. Thus, the judge afforded the State six weeks, rather than the fifteen-day period specified in Rule 3:5-7(b). However, the judge rejected the State's request to allow a period greater than six weeks.

In particular, at the remand hearing, the State presented testimony describing the difficulties it claimed to have experienced in securing the appearance of one of the New York police officers, Detective Aquaviva, who had searched the motel room where defendant was found, and had seized incriminating evidence. Apparently Aquaviva was assigned to a special detail in New York at the time the suppression motion was pending. However, at no time while the suppression motion was pending in 2006, and at no time during the hearing on defendant's July 2006 motion to dismiss the indictment, did the State ever make reference to the difficulties it had experienced in arranging for Aquaviva's appearance during the suppression motion. The first time the State mentioned the scheduling difficulties as a reason for seeking to toll the IAD clock was during the remand hearing. Judge Falcone observed at the remand hearing that the State produced no correspondence or internal memoranda that documented or corroborated the State's claims regarding the scheduling difficulties it experienced in 2006.

For all of those reasons, the judge rejected the State's request that Aquaviva's unavailability be taken into account, and he set April 2, 2006 as the date by which the State's brief should have been submitted. The judge also determined that the IAD clock should be tolled until April 23, 2006 for the nine-day period that it had actually taken defendant to file his brief, and for three weeks, until May 12, 2006, while the judge's law clerk would have reviewed the briefs and prepared a bench memo. The judge added forty-nine more days, until June 30, 2006, as the time interval before the suppression motion would have been heard. Consequently, the judge found that the running of the IAD time limit was tolled from February 27 through June 30, 2006, as the time necessary for the filing of defendant's suppression motion, the submission of briefs and conducting the hearing. Thus, the IAD time clock would have begun to run again on July 1, 2006. By then, 110 of the 120 days had already elapsed.

However, on July 7, 2006, with 116 days having elapsed, defendant filed his motion to dismiss the indictment based upon a violation of the IAD time limit. Judge Falcone concluded that the filing of such motion stopped the clock, which did not begin to run again until September 8, 2006, the day after the motion was heard. Thus, by September 11, 2006, 120 days had expired and "the [t]rial had not commenced."

However, the judge correctly observed, and as we had already discussed, id. at 20, the running of the IAD time clock did not require the dismissal of the indictment if defendant's New York sentence had concluded before the 120-day IAD time limit had expired. For that reason, as we had directed him to do, id. at 23, the judge turned to an analysis of when defendant would have been released from confinement on his New York sentence.

On that subject, the judge considered the testimony of Maria Rios, a New York parole officer, who, when asked whether she was familiar with the parole procedures in the State of New York, answered "[p]retty much." Initially, Rios testified that defendant's "M.E. date," which she defined as his "maximum expiration date," was October 4, 2006. According to Rios, that was the date when defendant's New York parole supervision would have been concluded and he would no longer have been subject to parole revocation in New York or to a return to custody in any New York correctional facility. Later, Rios changed her testimony, and asserted that defendant's M.E. date was April 4, 2009.

Rios also explained that April 2, 2006 was defendant's "certificate of release date," which meant that if defendant had been interviewed by New York parole authorities, and parole authorities were satisfied with his intended living arrangements, he would have been released from the New York prison on parole on April 2, 2006. Rios also testified that New York parole law does not permit an inmate to be released on parole unless he "signs the paperwork," and agrees to the parole conditions, but in defendant's case, his paperwork "was never signed." According to Rios, "if you don't sign your . . . conditions of parole, you can't be paroled." She noted that defendant had not signed the documents because he had not been returned to New York for his parole interview.

The judge also considered a July 22, 2009 letter*fn4 from Terrence X. Tracy, counsel to the Division of Parole in New York, which was admitted in evidence as a joint exhibit during the remand hearing. According to Tracy, the only way defendant could have been released from confinement in New York on April 2, 2006, was if he had been present in New York on that date. Because he had not been, "not until [he] satisfied the full term of the incarcerative portion of his determinate sentence on October 4, 2006, could he have been subject to the [Parole] Division's jurisdiction while he was in the State of New Jersey."

Thus, according to Tracy, if defendant remained confined in New Jersey as of October 4, 2006, that date would have been the earliest date upon which the New York Division of Parole would have considered defendant's New York sentence to be concluded, and the earliest date upon which defendant could have been released from prison in New York. Even then, defendant would not have been released on parole in New York until he returned to that state and signed the necessary parole documents; however, October 4, 2006 would be considered his release date from New York assuming he was still in custody in New Jersey as of that moment.

In his findings of fact, Judge Falcone commented that the testimony of Ms. Rios was "not significantly helpful on the issues." The judge noted that Rios "did the best she could," but she did not have "the level of expertise that would have permitted the [c]court to in effect totally rely on her testimony." In contrast, the judge found the letter from Tracy to be far more persuasive because of Tracy's knowledge and experience. The judge accepted Tracy's conclusion that the earliest date upon which defendant could have been released from confinement in New York was October 4, 2006. Because that date was subsequent to the September 11, 2006 running of the 120 days, the judge concluded he was therefore constrained to grant defendant's motion to dismiss the indictment. The judge entered such an order on October 28, 2009.

In its cross-appeal, the State presents the following arguments:

I. GOOD CAUSE EXISTED TO WARRANT A CONTINUANCE

II. DEFENDANT "WOULD HAVE BEEN RELEASED FROM PRISON CONFINEMENT" PRIOR TO SEPTEMBER 11, 2006

III. DEFENSE COUNSEL'S CONDUCT BOTH BEFORE AND AFTER THE FILING OF A FEBRUARY 27, 2006 MOTION TO SUPPRESS AMOUNTED TO A WAIVER OF THE PROTECTIONS OF THE IAD.

II.

On appeal, the judge's findings of fact are binding upon us so long as they are supported by sufficient and credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). However, we owe no deference to the judge's legal conclusions, which are reviewed de novo. State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009).

Before addressing the claims the State advances in Point I, we pause to briefly review some of the preliminary remarks in the State's brief. Specifically, the State does not dispute the judge's findings concerning the tolling period for the cell phone records or the tolling period for the suppression motion that defendant filed on February 27, 2006. "Nor does the State dispute Judge Falcone's finding that under a literal reading of the . . . IAD, . . . the timeframe within which the State had to try defendant pursuant to the IAD expired on September 11, 2006." Thus, the State concedes that if we reject the three claims it now advances on appeal, the dismissal of the indictment with prejudice would be required.

We turn first to Point I, in which the State urges us to reconsider our earlier conclusion, State v. Carrasquillo, supra, slip op. at 27-28, that the judge's granting of the State's motion for a continuance on September 11, 2006 should be reversed. The State argues that with the benefit of the additional testimony produced during the remand hearing, our earlier conclusion is now incorrect. In particular, the State points to: evidence demonstrating the difficulties the Morris County Prosecutor's Office experienced in arranging for Aquaviva to testify at the suppression hearing; defense counsel's statement to the court that defendant's term of incarceration ended on April 2, 2006 and thus, "there [was] no longer a detainer on him;" and the fact that at no time during the September 11, 2006 hearing on the State's motion for a continuance was the State, or the court, aware of defendant's October 4, 2006 maximum expiration date, which was the date upon which his New York sentence would have ended.

None of these factors, either singly or in combination, is sufficient to persuade us to reconsider our earlier conclusion that the grant of the continuance was error. As to the State's apparent difficulties with securing Aquaviva's appearance at the suppression hearing, we accept the judge's conclusion that because the State never mentioned these difficulties in 2006 at the time such difficulties were presumably being encountered, because the State never specified even in general terms the nature of the "detail" to which Aquaviva had been assigned, and because the State failed to produce any documentary evidence supporting its difficulties in arranging Aquaviva's appearance at the suppression hearing, the State had not presented good cause for its delay in the filing of its suppression motion brief in 2006. For those same reasons, we decline to consider the difficulties with Aquaviva as a basis for reconsidering our conclusion that the continuance should not have been granted.

As to defense counsel's comments about when defendant's New York sentence ended, and the State's delay in learning the true facts on that subject, neither causes us to reconsider our earlier determination that the grant of the continuance was error. If anything, our conclusion that the State did not exercise sufficient efforts to bring defendant to trial within the 120-day time limit is strengthened by the State's failure to contact New York officials and definitively ascertain when defendant would have been released from confinement in New York. The fact that the State did not learn of the October 4, 2006 date until well after the 120-day IAD time limit had already expired, and probably did not learn of that date until the remand hearing, demonstrates that our earlier conclusions about the granting of the continuance were correct. We are satisfied now, as we were then, that the "long delay" in bringing defendant to trial was principally due to the prosecutor's inaction and failure to diligently move the matter to trial. Id. at 25. We concluded that the record was "devoid of any evidence that the prosecutor attempted to change the rather desultory pace at which this prosecution was moving." Ibid. Nothing in the State's cross-appeal has persuaded us that our original conclusions were incorrect. We thus reject the argument the State advances in Point I.

III.

In Point II, the State argues that the judge's findings on when defendant's New York sentence would have ended were flawed and should be rejected. The State argues that the judge erred when he disregarded Rios's testimony that defendant would have been eligible for release from his confinement in New York as early as April 2, 2006. The State points to Rios's testimony that according to her records, "an interview date" for defendant had been scheduled for February 14, 2006 and the only reason defendant was not released on April 2, 2006 was because he had not signed the document agreeing to his parole conditions, which was known as a "Form 40-30." The State argues the judge also ignored Rios's testimony that on May 26, 2006, after having confirmed that the address provided by defendant was not suitable, she would have referred him to the Bellevue Men's Shelter in Manhattan.

These claims are unconvincing. First, Rios herself acknowledged on cross-examination that defendant could not have been released in April 2006 because he had not returned to New York to sign the necessary parole documents. Second, the State has provided no meritorious basis for us to disregard the judge's finding that Tracy was more knowledgeable than Rios, and therefore Tracy's determination that defendant could not have been released until October 4, 2006 should be accepted. Nothing in the New York Penal Law to which the State refers convinces us that there is any reason to reject the judge's conclusion that defendant would not have been released from his New York confinement until October 4, 2006. The New York statutes simply provide that "[c]onditional release" from confinement "shall be in the discretion of the parole board . . . upon such conditions as may be imposed by the parole board," N.Y. Penal Law § 70.40(2). If anything, the New York statutes support the judge's finding that defendant could not have been released from his New York sentence until he agreed in writing to the conditions of his parole. See N.Y. Executive Law § 259-g.

Therefore, as the judge correctly determined, defendant would not have been released from the sentence he was serving in New York until October 2006. Only if the State had brought defendant to trial on his New Jersey charges within the 120-day time period required by the IAD would he have been released from his New York sentence any sooner. It was the slow pace of the New Jersey prosecution that prevented defendant from being released from confinement in New York. This is precisely the harm that the IAD statute is designed to address. Van Winkle v. N.J. Dep't of Corr., 370 N.J. Super. 40, 46 (App. Div. 2004). We have been presented with no meritorious basis upon which to reject the judge's determination that defendant would not have been released from confinement in New York until October 4, 2006. We thus reject the claim the State advances in Point II.

IV.

In Point III, the State argues that even if the IAD time limits were violated, the dismissal of the indictment was not justified because defendant waived the protections of the IAD. In support of this argument, the State points to the following facts: 1) at no point during the first 120 days of his confinement in New Jersey did defendant assert any rights pursuant to the IAD; 2) on January 20, 2006, defendant advised the court that he was seeking to obtain telephone records, thereby implicitly conceding a willingness to proceed to trial beyond the expiration of the IAD time limit; 3) during the September 7, 2006 hearing on the State's motion for a continuance, defense counsel conceded that he would not have been prepared to go to trial in December 2005; 4) defendant filed his suppression motion on February 27, 2006 without asserting his rights under the IAD; and 5) not until June 2006, "seven months after the 120-day period expired, [did] defense counsel, for the first time, raise[] the specter of the IAD." From these facts, the State argues that both the judge and the prosecution "were entitled to infer that defendant had no legal objection to proceeding on the schedule [that was] actually followed in this matter."

Essentially, the State asks us to hold that unless defendant repeatedly and explicitly insisted that the State comply with the statutory IAD deadline, we should infer that defendant had acquiesced to the slow pace at which the State was moving this matter to trial. No New Jersey court has ever so held, and we decline to engraft a requirement onto the IAD statute that the Legislature could have, but did not, impose.

We recognize that when a defendant files a motion to dismiss the indictment due to a violation of his Sixth Amendment right to a speedy trial, one of the factors a court must consider when resolving such motion is whether the defendant made a timely assertion of his speedy trial rights. State v. Szima, 70 N.J. 196, 202 (1976), cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976). Unlike the Sixth Amendment right to a speedy trial, for which there is no fixed date by which an indictment must be dismissed if trial does not commence, the IAD contains its own time limit of 120 days when the State has initiated the IAD transfer, or 180 days when the defendant initiates the transfer.

Moreover, we reject the State's argument that because defendant conducted a pretrial investigation and filed a suppression motion -- procedures that are routinely conducted -- we should consider such activity to constitute a waiver of his rights under the IAD statute. Such argument ignores the fact that defendant's request for the cell phone records of the co-defendant and victim, and his filing of the motion to suppress, both occurred before the running of the 120-day IAD time limit. That being so, such pretrial investigation and motion practice can hardly be said to constitute a waiver. For that reason, none of the cases upon which the State relies are controlling because in each of them, the defendant either continued to file motions even after the IAD time limit had expired, see United States v. Hines, 717 F.2d 1481, 1486-87 (4th Cir. 1983), or expressly consented to a trial date subsequent to the running of the IAD statutory time limit, New York v. Hill, 528 U.S. 110, 118, 120 S.Ct. 659, 666, 145 L.Ed. 2d 560, 569 (2000). Neither of those situations is present here.

Equally unconvincing is the State's reliance on People v. White, 305 N.Y.S. 2d 875, 878 (N.Y. App. Div. 1969) where, as in Hines, supra, the defendant filed a motion to suppress after the IAD time period had expired, which led the New York court to conclude that defendant had waived his right to insist upon the protections afforded by the IAD. As we have already noted, this is not such a case.

Contrary to the State's contention that defendant waived his right to insist upon the State bringing him to trial within the statutory time limit afforded by the IAD, we conclude that defendant's conduct demonstrated a desire to bring his case to trial as quickly as was reasonably possible. He filed his motion to suppress within two weeks of the date he first announced his intention to do so; he filed his brief in support of his motion to suppress a mere nine days after receiving the State's brief; as soon as he learned that the State was not in possession of the victim's and co-defendant's cell phone records, he requested that an investigator from the Public Defender's Office obtain them; and almost immediately after the IAD time limit had expired, he filed his motion to dismiss the indictment. Nothing in this sequence of events remotely suggests a waiver of his rights. We thus reject the waiver claim the State advances in Point III.

V.

Having determined that there is no basis to reconsider our earlier conclusion that the judge's grant of a continuance to the State on September 11, 2006 was unwarranted, and having determined that defendant did not waive his rights under the IAD, we now apply the judge's findings of fact on remand to determine when the 120-day statutory limit expired. Between August 23, 2005, when defendant first arrived at the MCCF, to November 11, 2005, when he first requested the cell phone records, the IAD time clock ran unabated for a total of eighty days. The running of the time was tolled from November 11, 2005 until January 28, 2006 when the cell phone records were received. The clock continued to run through and including February 26, 2006, because, on February 27, 2006, the time was tolled when defendant filed his suppression motion. Thus, as of February 26, 2006, 110 of the 120 days afforded the State under the IAD had already elapsed.

The tolling attributable to defendant's suppression motion continued from February 27 through June 30, 2006, and the clock resumed running again on July 1, 2006, at which point only four of the 120 days remained. The judge concluded that defendant's July 7, 2006 filing of his motion to dismiss the indictment on grounds of the IAD violation again tolled the running of the IAD clock until that motion was decided on September 7, 2006. He found that the 120 days thus expired on September 11, 2006, which was twenty-three days before defendant would have been released from confinement in New York, and more than two months before defendant's trial began in Morris County. For that reason, as we have already noted, the judge granted defendant's motion to dismiss the indictment.

In response to the State's cross-appeal, defendant argues that the judge erred when he concluded that the filing of defendant's IAD motion on July 7, 2006 tolled the running of the IAD clock. We agree. See State v. Lippolis, 107 N.J. Super. 137, 141 (App. Div. 1969) (holding that "nothing but defendant's actual inability to stand trial can toll the [IAD]"), rev'd on other grounds, 55 N.J. 354 (1970). We thus disagree with the judge's conclusion that the filing of defendant's IAD motion stopped the clock. That being so, the 120 days expired on July 11, 2006, more than two months before October 4, 2006, which is the date the judge found defendant would have been released from his confinement in New York. However, even giving the State the benefit of the doubt, and accepting the judge's determination that the IAD clock stopped running during the pendency of defendant's motion to dismiss the indictment, the 120 days still expired on September 11, 2006, several weeks before defendant would have been released from his New York sentence. Thus, either way, the inescapable conclusion remains that the 120-day time limit imposed by N.J.S.A. 2A:159A-4(c) was violated.

In reaching this conclusion, we note that the judge's decision on remand gave the State the benefit of a generous 123-day tolling period for the submission of briefs on defendant's motion to suppress and for scheduling and conducting the motion hearing. Even with the benefit of that 123-day tolling, the 120-day IAD time limit was violated.

We have carefully considered the arguments the State has presented in its cross-appeal in light of the entire record; however, nothing the State has presented alters the fact that the State, having transported defendant to New Jersey, was obligated to commence his trial within 120 days of his arrival, excluding the tolling periods, but did not do so. We also recognize that the charges upon which defendant was convicted at trial are extremely serious. For that reason, the State should have been especially careful to adhere to the requirements of N.J.S.A. 2A:159A-4(c). To the contrary, the first time the State initiated any discussion of possible trial dates was September 7, 2006, which was the return date of defendant's motion to dismiss the indictment. The IAD statute demands far more.

We have been presented with no meritorious basis to reject the judge's careful and comprehensive findings of fact on remand, nor have we been convinced by the State's waiver argument or its request that we reconsider our disallowance of the continuance the judge originally granted. We thus affirm the October 28, 2009 order dismissing the indictment with prejudice. In light of that determination, we need not address the other arguments defendant raised in his notice of appeal, and which we deferred pending resolution of the IAD issue.*fn5

The October 28, 2009 order dismissing the indictment is affirmed.


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