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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–3072–12T3

    Decided: April 23, 2014

Before Judges Fuentes, Fasciale and Haas.Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Mr. Wilensky, of counsel and on the brief). James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney;  Mr. McConnell, of counsel and on the brief).

Defendant Lester Jones appeals from his December 7, 2012 convictions for charges lodged against him in a Somerset County indictment.   We reverse and remand for the entry of a judgment dismissing the indictment.

On May 19, 2010, a Somerset County grand jury indicted defendant on two counts of third-degree theft by deception, N.J.S.A. 2C:20–4 (counts one and two);  third-degree theft of identity, N.J.S.A. 2C:21:17a(1) (count three);  and eight counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21–6h (counts four through eleven).   At the time of the indictment, defendant was serving a forty-one month sentence in a federal correctional institution in Allenwood, Pennsylvania.   Defendant also had charges pending against him in Middlesex County under a separate indictment.   Both counties filed detainers against defendant.

On November 23, 2011, defendant made a written request pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A–1 to –15, for his Middlesex County charges to be addressed.   On December 15, 2011, the Middlesex County prosecutor agreed to “accept temporary custody” of defendant for the purpose of bringing him to trial or otherwise disposing of the charges pending against defendant in that county.   The next day, a Middlesex County Law Division judge approved the transfer.

On December 14, 2011, defendant submitted a similar request to the Somerset County prosecutor for a disposition of his pending charges in that county under the IAD. On January 3, 2012, defendant was transported from Pennsylvania to New Jersey and placed in custody in Middlesex County.   On January 9, 2012, the Somerset County prosecutor agreed to accept temporary custody of defendant and this request was approved by a Somerset County Law Division judge that same day.   The transfer form signed by the prosecutor stated:

Somerset County Prosecutor's Office will transfer [defendant] from Middlesex County to Somerset County and subsequently return [defendant] to Middlesex County upon completion of said charges.   Middlesex County will return offender to out of state/parenting facility (USP Allenwood).

On January 30, 2012, defendant's Middlesex County charges were resolved by way of a guilty plea and the Law Division judge sentenced him on May 14, 2012.   The record indicates that defendant thereafter continued to be housed in the Middlesex County jail and brought to Somerset County as needed for status conferences.   The State and defendant engaged in plea negotiations.   However, when the Somerset County charges were not resolved within 180 days of his request for a disposition of his charges, defendant announced his intention to move to dismiss the indictment.   On July 16, 2012, Middlesex County returned defendant to the federal institution in Pennsylvania.

Defendant then filed a motion to dismiss the indictment pursuant to the provisions of the IAD that (1) prohibit a state from “shuttling” an inmate back and forth between federal and state correctional facilities, N.J.S.A. 2A:159A–3(d);  and (2) require that all pending charges against an inmate be resolved within 180 days of his or her request for a final disposition of the charges, N.J.S.A. 2A:159A–3(a) and N.J.S.A. 2A:159A–5(c).  Following oral argument on September 6, 2012, the Law Division judge denied defendant's motion.   In a brief written decision, the judge found that Somerset County was not responsible for returning defendant to Pennsylvania and, therefore, the anti-shuttling provision of the IAD should not apply.   The judge also found that the 180–day time period for disposition of the charges should be extended because defendant was not immediately assigned legal counsel upon his arrival in New Jersey and because he decided to engage in motion practice as the period drew to a close.

On November 9, 2012, defendant pled guilty to counts one, two, three, six, and ten of the Somerset County indictment.   On December 7, 2012, the judge sentenced defendant to concurrent three-year terms on each count, concurrent to the sentences he was currently serving, including his federal sentence.   This appeal followed.1

On appeal, defendant raises the following contentions:





“The [IAD] is a compact entered into by 48 States, the United States, and the District of Columbia to establish procedures for resolution of one State's outstanding charges against a prisoner of another State.”  New York v. Hill, 528 U.S. 110, 111, 129 S.Ct. 659, 662, 145 L. Ed.2d 560, 564 (2000).   Its purpose is “to encourage the expeditious and orderly disposition of [charges outstanding against a prisoner already incarcerated in another jurisdiction] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.”  N.J.S.A. 2A:159A–1.   Because the IAD “is a congressionally sanctioned interstate compact,” it “is a federal law subject to federal construction.”  State v. Baker, 198 N.J. 189, 192 n.1 (2009) (quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L. Ed.2d 516, 520 (1985)).

The IAD “creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime” and “provides for expeditious delivery of [a] prisoner to [a] receiving State for trial prior to the termination of his sentence in [a] sending State.”

[State v. Glaspie, 429 N.J.Super. 558, 562 (App.Div.) (alterations in original) (quoting Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2979, 2082, 150 L. Ed.2d 188, 192 (2001)), certif. denied, 216 N.J. 366 (2013).]

Under the IAD, “either the prisoner himself (under Article III of the IAD, N.J.S.A. 2A:159A–3) or the prosecutor in the jurisdiction where the charge is pending (under Article IV, N.J.S.A. 2A:159A–4) can initiate proceedings to bring the prisoner to trial.”  State v. Pero, 370 N.J.Super. 203, 206 (App.Div.2004).   Here, defendant invoked his rights in Somerset County under Article III.

N.J.S.A. 2A:159A–3(c) provides that, when a detainer has been lodged against a prisoner, the warden having custody of the inmate “shall promptly inform him of the source and contents” of the detainer and “shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.”   If the prisoner files a request for disposition of charges pending against him in another jurisdiction, the warden must notify “all appropriate prosecuting officers and courts” in the receiving state of the inmate's request for disposition.   N.J.S.A. 2A:159A–3(d).  After the receiving state receives this notification, the prisoner must “be brought to trial within 180 days.”   N.J.S.A. 2A:159A–3(a).   The 180–day period begins to run when the New Jersey authorities receive a prisoner's completed IAD forms.  Pero, supra, 370 N.J.Super. at 214.

For “good cause shown in open court, ․ the court having jurisdiction of the matter may grant any necessary or reasonable continuance” of the 180–day time period.  N.J.S.A. 2A:159A–3(a).   However, if no continuance is obtained, and the 180–day period expires without the prisoner having been tried, then “the appropriate court of the jurisdiction where the indictment ․ has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”  N.J.S.A. 2A:159A–5(c).  See State v. Mason, 90 N.J.Super. 464, 474 (App.Div.1966).

The IAD also provides that jurisdictions may not “shuttle” a prisoner back and forth between them.  N.J.S.A. 2A:159A–3(d) states that “[i]f trial is not had on any indictment ․ prior to the return of the prisoner to the original place of imprisonment, such indictment ․ shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”   Thus, once the receiving state accepts the prisoner, the charges pending against him must be tried before the inmate is returned to the sending jurisdiction.   Otherwise, the indictment must be dismissed.  Ibid.

In Point I of his brief, defendant argues that the anti-shuttling provision of N.J.S.A. 2A:159A–3(d) was violated and, accordingly, the Somerset County indictment should have been dismissed.   We agree.

In Bozeman, the United States Supreme Court clearly held that dismissal is mandatory upon violation of the anti-shuttling provisions of the IAD. In that case, the inmate was transferred under the IAD from a federal prison in Florida to a state court in Alabama for arraignment.   Bozeman, supra, 533 U.S. at 151, 121 S.Ct. 2083–84, 150 L. Ed.2d at 194.   After staying in Alabama overnight, that state returned him to federal custody the next day following the arraignment.  Ibid. The state court granted the inmate's motion to dismiss the Alabama indictment because he had been returned to federal custody without being tried on the charges that were subject to the IAD. Id. at 152–53, 121 S.Ct. at 2084, 150 L. Ed. at 194–95.

The United States Supreme Court affirmed, “concluding that the IAD's anti-shuttling provision does not exempt even de minimis violations.   Regardless of the brevity of [the defendant's] shuttle from Florida to Alabama, the use of the word ‘shall,’ the language of command, made dismissal mandatory.”   Glaspie, supra, 429 N.J.Super. at 564 (citing Bozeman, supra, 533 U.S. at 153–54, 121 S.Ct. at 2084–85, 150 L. Ed.2d at 195).

In Glaspie, we agreed that the anti-shuttling provision of the IAD should be strictly enforced and that an indictment must be dismissed if shuttling occurs.  Id. at 567.   In that case, the inmate was transferred four times between a federal detention center in Pennsylvania and Gloucester County, without being tried on the charges pending against him in New Jersey.  Id. at 561.   Based upon the clear holding of Bozeman, we held “that the IAD means what it says, even when the violation may appear to be merely technical.   The result is unavoidable.”  Id. at 567 (citations and internal quotation marks omitted).

A similar result is required here.   Defendant was returned to federal custody on July 16, 2012 without having been tried on the charges pending against him in Somerset County.   Under the clear holdings of Bozeman and Glaspie, the Somerset County indictment should have been dismissed.

In reaching this conclusion, we are mindful of Somerset County's claim that Middlesex County was the governmental entity which returned defendant to federal custody and its allegation that this transfer was done “by mistake.”   However, “[o]nce ‘the IAD properly has been invoked according to its terms, both the State and defendant are entitled to its benefits and limited by its burdens.’ ”  Glaspie, supra, 429 N.J.Super. at 563 (emphasis added) (quoting Baker, supra, 198 N.J. at 194).   As we observed in Glaspie, “administrative errors made by prison authorities” do not excuse strict compliance with the IAD's requirements.  Id. at 565–66 (citing Pero, supra, 370 N.J.Super. at 218–20).   Moreover, “New Jersey does not have the option of dismissal without prejudice when the anti-shuttling provision is violated[.]”  Id. at 565.   Thus, the Somerset County indictment should have been dismissed pursuant to the anti-shuttling provision of N.J.S.A. 2A:159A–3(d).

We also agree with defendant's remaining contention, raised in Point II, that the indictment should have been dismissed pursuant to N.J.S.A. 2A:159A–3(a) and N.J.S.A. 2A:159A–5(c).  These provisions required that defendant be tried on the Somerset County indictment within 180 days of his request for a disposition of those charges.   While it is not clear when Somerset County received defendant's December 14, 2011 request for disposition, the parties agreed before the Law Division that this occurred no later than January 9, 2012, the date the prosecutor agreed to take custody of defendant.   Thus, according to the parties, the 180–day period expired on July 7, 2012.

Defendant was not tried in Somerset County prior to that date and he was returned to federal custody on July 16, 2012.   The State never made a motion for a continuance of the 180–day period prior to its expiration, as required by N.J.S.A. 2A:159A–3(a).   Therefore, the IAD required the dismissal of the Somerset County indictment.  N.J.S.A. 2A:159A–3(a) and N.J.S.A. 2A:159A–5(c).

After the fact, the State sought to extend the 180–day period by arguing that defendant was “unable to stand trial” when he first arrived in New Jersey because he did not yet have assigned counsel.   We disagree.   The obvious reason for giving the State 180 days to try a defendant is because he will need to have counsel appointed, as well as time to review discovery, conduct an investigation, and prepare for trial.   The State, itself, will also have to accomplish these tasks.   Similarly, the running of the 180–day period was not tolled by defendant's rejection of the State's plea offer and his statement that he intended to file a motion to dismiss the indictment under the IAD. Defendant was certainly within his rights to refuse the State's offer and to file appropriate pre-trial motions.   Moreover, the State has not identified any impediment it faced in proceeding to trial immediately after defendant made his intentions known.

Under these circumstances, we conclude that defendant's motion to dismiss the indictment should have been granted pursuant to the clear terms of the IAD. We therefore reverse and remand for entry of a judgment in accordance with this opinion.

Reversed and remanded.   We do not retain jurisdiction.


FN1. We were advised prior to oral argument that defendant is no longer in custody in any jurisdiction..  FN1. We were advised prior to oral argument that defendant is no longer in custody in any jurisdiction.


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