On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-02-0195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 21, 2011
Before Judges Axelrad and Ostrer.
Defendant David Figueroa appeals from the February 3, 2009 order denying his pretrial motion to dismiss the indictment against him based on lack of a speedy trial. He also challenges the denial of gap time credits. He preserved both issues when he pled guilty to two counts of armed robbery. We affirm.
On February 13, 2003, an Ocean County grand jury returned a three-count indictment, I-03-02-195, against defendant and two co-defendants. The indictment charged defendant and co-defendants with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one, two, and three), resulting from an incident that occurred on October 22, 2002, in which they held up two people at gunpoint in their car and demanded money.
The following facts are contained in the motion record and are undisputed. Defendant began serving an unrelated five-year prison sentence at the Greene Correctional Facility in New York on October 31, 2003, with an anticipated completion date in June 2007. On October 17, 2006, the New York facility sent a letter signed by Inmate Records Coordinator Jennie Lugo to the Ocean County Sheriff's Department, advising that it had received and lodged a detainer on behalf of New Jersey against defendant in relation to the subject indictment. The letter reflects it was copied to the inmate and instructs that if the inmate "wish[es] a speedy trial" in accordance with the Interstate Agreement on Detainers (IAD), "[he should] sign the original of the attached form*fn1 and return it to [Lugo's] office."
On January 10, 2007, Melissa Barbier, Esquire, the Assistant Public Defender assigned to represent defendant on the New Jersey charges, sent defendant the IAD form with instructions to complete it, give the original to Inmate Services, retain a copy, and return a copy to her. Defendant signed Form 1 on January 16, 2007, and the public defender's office received a copy of the signed document on March 15, 2007. On October 24, 2007, Barbier was informed by Lugo that defendant had been transferred to Coxsackie County Correctional Facility in New York. Barbier was told by both facilities that they had no record of the signed IAD and defendant would have to recommence the process for requesting a speedy trial through the IAD. That day she forwarded Form 1 to Anne Green of Inmate Records at the Coxsackie facility.
Defendant sent a letter dated January 7, 2008 to the public defender's office, in which he questioned the lack of progress on his case and why the IAD process had not begun. He stated Barbier had informed his mother he "messed up because [he] never sent the facility [he's] now incarcerated in a copy of the detainer, which [he] did . . . ."
On January 18, 2008, Barbier faxed Assistant Prosecutor Robert Scott a copy of the IAD Form 1. Scott advised he had no record of receipt of the necessary forms and thus defendant's "time period for the right to a speedy trial had not been triggered." By letters of January 22 and 25, 2008, Barbier informed defendant of the status of the matter, suggested he speak with Inmate Services and recommence the process, but informed him she was attempting to "remedy the situation" with the prosecutor's office. She also advised defendant a warrant had been issued that would be executed on him at the conclusion of his sentence in New York.
Defendant was released on parole from the New York facility in March 2008. He filed a motion to dismiss the New Jersey indictment in September 2008. He challenged the constitutionality of the IAD, adopted in New Jersey at N.J.S.A. 2A:159A-1 to -15, and argued he was denied his right to a speedy trial because he substantially complied with the IAD. In the alternative, defendant requested equitable gap time jail credits from October 31, 2003, when he began serving his prison sentence in New York.*fn2 Following oral argument on January 30, 2009, Judge Wendel E. Daniels denied the motion to dismiss the indictment. He noted that if counsel were able to reach an agreement on jail credits, he would be "open to consider the fact that the defendant did make good-faith efforts to try to comply[.]" The denial of the motion was memorialized in an order of February 3, 2009. Defendant returned to the correctional facility in New York in November 2009, and was again released on parole in March 2010.
On March 31, 2010, defendant pled guilty in New Jersey before Judge James Den Uyl to two counts of armed robbery (counts one and three), preserving the IAD, as well as the jail credit request that they were apparently unable to resolve. On August 13, 2010, pursuant to the negotiated plea, Judge Den Uyl dismissed count two and sentenced defendant to two concurrent ten-year sentences (the bottom of the range for a first-degree offense, N.J.S.A. 2C:43-6(a)(1)), subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge gave defendant 318 days of jail credit, but denied his motion for gap time credit while in custody in the New York facility. This appeal ensued.
On appeal, defendant renews the arguments made to the trial court, contending:
I. THE INTERSTATE AGREEMENT ON DETAINERS IS UNCONSTITUTIONAL AS IT DEPRIVES CRIMINAL DEFENDANTS OF THEIR RIGHT TO DUE PROCESS BY IMPOSING AN UNFAIR BURDEN ...