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State of New Jersey v. John J. Perry

May 10, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN J. PERRY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-05-0208.

The opinion of the court was delivered by: Alvarez, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

May 10, 2013

Submitted December 4, 2012

Before Judges Alvarez, Waugh and St. John.

The opinion of the court was delivered by ALVAREZ, J.A.D.

In this appeal, we are asked to dismiss with prejudice New Jersey charges under the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, because Pennsylvania refused to allow a Pennsylvania parole violator to be brought to this state for nearly two years pursuant to that state's Department of Corrections policies. See Pa. Dep't of Corr., Records Center Operations Procedure Manual, 11.5.1, § 5B(4) (2003). Because the two-year delay which resulted is not one of the enumerated instances requiring dismissal under the IAD, and no public policy or legislative purpose would be advanced by dismissal, we affirm the trial court's refusal to do so.

A brief discussion of the circumstances leading to the disposition of defendant John J. Perry's charges in New Jersey is necessary. On November 21, 2007, defendant was arrested in Monroe County, Pennsylvania, on new charges. At the time, he was on parole in that state due to prior convictions. Because of the new offenses, Pennsylvania placed him on parole violation pending (PVP) status effective November 30, 2007.

In December 2007, Warren County filed criminal complaints against defendant; the ensuing indictment was handed down on May 21, 2008, and included twenty-seven third-degree counts of car burglary, N.J.S.A. 2C:18-2, two counts of third-degree theft, N.J.S.A. 2C:20-3, and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. Early in 2008, Warren County had requested that Pennsylvania lodge the New Jersey warrants as a detainer against defendant. Warren County also requested that it be notified when defendant could be transported to New Jersey pursuant to the IAD. Thereafter, defendant also communicated with various prison authorities regarding his interest in addressing his New Jersey charges. It is undisputed that he was informed that because of his PVP status, he was not eligible to be transferred out of state to deal with open charges in New Jersey. In fact, defendant filed an inmate grievance with the Pennsylvania authorities regarding this refusal to release him in September 2008.

Defendant was advised that he could be extradited to other states under a governor's warrant and executive agreement, or a waiver of extradition. When New Jersey attempted to secure defendant's presence in that manner, however, at a hearing conducted April 16, 2009, defendant had a change of heart and refused to waive extradition, asserting that he wanted to remain in Pennsylvania until that state's charges were resolved.

The following month, the Warren County Prosecutor's Office attempted to obtain defendant's transfer to New Jersey by way of a governor's requisition and executive agreement. It also sent a request for temporary custody under the IAD, which request was denied because of defendant's continued PVP status. The Warren County authorities were informed that only extradition would suffice, but that at his April 16, 2009 hearing, defendant had refused to waive extradition.

Defendant filed federal habeas corpus petitions in Pennsylvania and New Jersey, as well as a Pennsylvania state habeas corpus petition on August 4, 2009. As a result of his state petition, on October 1, 2009, a Pennsylvania state court judge dismissed defendant's New Jersey detainer, and entered a parole order directing the Pennsylvania authorities to release him. The Warren County authorities were not informed of defendant's release.

Meanwhile, during this time period, the Warren County Prosecutor's Office sent a letter to the New Jersey Governor's Office requesting a requisition for defendant's extradition. The Pennsylvania Office of General Counsel attempted to act upon the warrant obtained from the Governor of Pennsylvania. Since defendant was not in custody, however, nothing further could be done. From October 8, ...


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