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State v. Nguyen

Superior Court of New Jersey, Appellate Division

July 18, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TOAN H. NGUYEN, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2013

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-1011.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Before Judges Ostrer and Kennedy.

PER CURIAM

Following denial of his motion to dismiss pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to - 15, defendant Toan H. Nguyen pleaded guilty to one count of second-degree conspiracy to commit theft by deception involving over $75, 000, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4. Pursuant to his plea agreement, the court sentenced defendant to a term of seven years. The court also required defendant to pay restitution of $406, 000.

Defendant now appeals from the denial of his dismissal motion, asserting that the State failed to bring defendant to trial within 180 days as required by the IAD. See N.J.S.A. 2A:159A-3(a).[1] At issue is when the 180-day period began to run, and whether it was suspended. Defendant argues the 180-day period began to run when the Atlantic County Prosecutor received the IAD request, although the State Division of Criminal Justice (DCJ) handled his prosecution and received the request ten days later from the county prosecutor. Defendant also argues the 180-day period was not suspended after his appointed assistant deputy public defender advised the court that he had a conflict of interest, and substitute counsel would be needed.

Having reviewed these arguments in light of the facts and applicable law, we are convinced the 180-day period did not begin to run until the DCJ received the request, and the period was suspended once counsel announced his conflict and did not resume until substitute counsel entered his appearance. We therefore affirm.

I.

The facts are undisputed. According to defendant's plea allocution in 2008, defendant agreed with several others to deposit forged bank checks totaling at least $75, 000 at various casinos. Defendant admitted that he made unauthorized copies of checks, forged them, and gave them to at least six other co-conspirators. They presented them to the casinos, gambled with the proceeds, and shared gambling winnings with defendant.

Defendant was indicted by an Atlantic County grand jury on April 28, 2010. In addition to the second-degree conspiracy count to which defendant pleaded guilty, the indictment included ten counts of theft and attempted theft, some in the second-degree and others in the third-degree. The indictment was signed by Yvonne G. Maher, who was identified as a deputy attorney general (DAG) in DCJ's Casino Prosecutions Bureau. The indictment bore the indictment number 10-04-1011-DCP, and prosecutor's file number 10001827-001. The April 2010 indictment superseded a November 19, 2009 indictment, not included in the record before us, which charged defendant with two counts of second-degree theft by deception and second-degree conspiracy.

Defendant was incarcerated in California when he was indicted. The California Department of Corrections notified him on December 11, 2009, that the New Jersey State Police, Casino Gaming Bureau, at 1300 Atlantic Avenue in Atlantic City, had filed a detainer against him on November 17, 2009. The notice referred to the warrant number, 0102W2009008105.[2] Defendant filed his first request for disposition on January 11, 2010, which is not included in the ...


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