On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-10-1327.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Ashrafi and Hayden.
Following his conditional guilty plea on a charge of sexual assault of a child, N.J.S.A. 2C:14-2b, defendant appeals from the June 22, 2009 order of the trial court denying his motion to dismiss the indictment. He asserts that the State failed to abide by the strict conditions of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, and did not timely transport him to stand trial in New Jersey on the indictment. We reject defendant's argument and affirm his conviction.
The relevant facts are not in dispute. In March 2008, defendant, then sixty-seven years old, was arrested in Virginia for sexual offenses involving a three-year-old child. He was held in custody at the Botetourt County Jail in Virginia. While those charges were pending, a complaint alleging that defendant committed similar offenses against a different child was filed in Passaic County, New Jersey. Passaic County officials lodged a detainer with the Botetourt County Sheriff to hold defendant on the New Jersey charges.
On the Virginia charges, defendant pleaded guilty to aggravated sexual battery and was sentenced on July 24, 2008, to ten years imprisonment, the sentence of incarceration being suspended upon specified conditions.
On September 3, 2008, defendant's Virginia attorney submitted forms in accordance with the IAD to the Sheriff of Botetourt County requesting that defendant be transported to New Jersey to be tried on the Passaic County charges. The attorney also sent a copy of the request to the Passaic County Prosecutor, together with uncompleted IAD forms.
On October 8, 2008, a Passaic County grand jury returned a two-count indictment charging that between 1987 and 1995 defendant committed acts against a child less than thirteen years old that constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and second-degree sexual assault, N.J.S.A. 2C:14-2b.
On November 5, 2008, defendant's Virginia attorney wrote to the Superior Court, Passaic County, again requesting that defendant be transported to stand trial on the New Jersey charges. The attorney included copies of the forms she had sent earlier, but again, the parts of the forms that were to be completed by Virginia authorities remained blank. She also sent copies of her correspondence and the forms to the Passaic County Prosecutor.
The Botetourt County Sheriff never completed the parts of the IAD forms that required his signature and did not forward them to Passaic County officials. In early 2009, defendant was transferred to a state prison in Virginia. At that facility, the IAD forms were completed by a Virginia prison official on February 23, 2009, and they were sent to the Passaic County Prosecutor, who received them on February 26, 2009. Defendant waived extradition in Virginia and was transported to Passaic County, where he was arraigned on the New Jersey indictment on April 14, 2009, that is, forty-eight days after receipt of the completed documents in New Jersey.
His New Jersey attorney filed a motion to dismiss the indictment, contending that his prosecution was in violation of the IAD because more than 180 days had passed since he originally requested on September 3, 2008, that he be transported to New Jersey for trial. The trial court heard argument and denied the motion, filing an order to that effect on June 22, 2009.
After the trial court's oral ruling, defendant and the Passaic County Prosecutor's Office reached a plea agreement. Defendant pleaded guilty on May 28, 2009, to second-degree sexual assault with a recommendation of a ten-year sentence to run concurrently with the Virginia sentence. In entering his plea of guilty, defendant expressly reserved a right to appeal the denial of his motion to dismiss the indictment for alleged violation of the IAD. See R. 3:9-3(f). ...