On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 10-09-0803.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
The opinion of the court was delivered by ALVAREZ, J.A.D.
We address the question of whether a defendant who was simultaneously serving a federal sentence and awaiting the disposition of unrelated federal charges may invoke the protection of the anti-shuttling provisions of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, in order to obtain dismissal of state charges. See N.J.S.A. 2A:159A-4(e).
In 1988, Congress amended the federal counterpart to the IAD vesting in receiving courts the discretion to dismiss charges, based on the anti-shuttling provisions, "with or without prejudice." 18 U.S.C.A. app. 2, § 9(1). New Jersey, which adopted the IAD in 1958, did not modify the anti-shuttling language in accordance with the change in federal law. In this state, the IAD continues to require that dismissals, based on violations of the anti-shuttling provision, be with prejudice. N.J.S.A. 2A:159A-4(e).
We conclude that the relevant statutory language, identical to the original version of 18 U.S.C.A. app. 2, § 2, art. 4(e), requires dismissal. We therefore reverse and remand for the entry of a judgment in accord with this decision.
I On November 5, 2008, defendant Leon C. Glaspie, while serving a five-year federal sentence for conspiracy to distribute cocaine,*fn1 18 U.S.C.A. § 371, was granted a furlough from a federal halfway house in Philadelphia, Pennsylvania, to look for work. On that date, along with a co-defendant, he robbed a bank in Deptford, New Jersey, and fled the scene, injuring a police officer along the way. He was not apprehended until November 24, 2008. After the arrest, he was housed in the Philadelphia Federal Detention Center (FDC), where he continued to serve his sentence for the conspiracy while awaiting disposition of the new charge of escape, 18 U.S.C.A. § 751.
On January 5, 2009, the Deptford Police Department lodged a detainer against defendant. The IAD is "triggered" when the receiving state files a detainer with the sending jurisdiction and makes a written request for temporary custody. State v. Baker, 198 N.J. 189, 194 (2009). For purposes of the statute, the federal government is considered another state. N.J.S.A. 2A:159A-2(a). In early April 2009, Gloucester County indicted defendant for second-degree robbery, N.J.S.A. 2C:15-1(a)(2), and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1(a)(2).
On April 27, 2009, the Gloucester County Prosecutor, pursuant to the IAD, submitted a certification in support of a state writ to the United States Department of Justice, Federal Bureau of Prisons, requesting defendant's temporary release to New Jersey authorities. The date scheduled for arraignment on the indictment was June 1, 2009. The Gloucester County Superior Court issued a companion order to produce to the County Sheriff, demanding defendant's delivery to the county jail for purposes of the hearing. Accordingly, on June 1, 2009, defendant was transported, or "shuttled," to Gloucester County, arraigned, and returned to the Philadelphia FDC that same day.*fn2
On July 16, 2009, defendant was indicted on the federal escape charge. See 18 U.S.C.A. § 751. He entered a guilty plea to the offense on August 26, 2009, and on December 15, 2009, was sentenced to twenty-seven months of imprisonment.
In the interim, the Gloucester County Superior Court issued additional writs to produce defendant for proceedings on July 27, August 31, and October 23, 2009. On each occasion, defendant was shuttled from the Philadelphia FDC to New Jersey, and returned the same or the following day.
On February 25, 2010, defendant was transferred to Big Sandy, a federal penitentiary in Inez, Kentucky. The Gloucester County Prosecutor then lodged a second detainer against defendant with Big Sandy. After defendant requested final disposition from New Jersey under the IAD, he was ...