Basto, Matter of

• Decision Date: 08 November 1985
• Citation: 500 A.2d 736,205 N.J.Super. 233
• Parties: In the Matter of Frank A. BASTO. In the Matter of Martin L. CARBONE. In the Matter of Carl J. PALO, Jr.
• Court: New Jersey Superior Court — Appellate Division

Page 233

205 N.J.Super. 233

500 A.2d 736

In the Matter of Frank A. BASTO In the Matter of Martin L. CARBONE In the Matter of Carl J. PALO, Jr.

Superior Court of New Jersey Appellate Division.

Argued Oct. 29, 1985.

Decided Nov. 8, 1985.

Peter V. Ryan, West Orange, for appellant, Frank A. Basto (Ryan, Pedicini & Donnelly, West Orange, attorneys, Peter V. Ryan, West Orange, on brief).

Louis C. Esposito, Orange, for appellant Martin L. Carbone.

Richard F.X. Regan, Hoboken, for appellant Carl F. Palo (Hayden & Perle, Hoboken, attorneys; Richard F.X. Regan, on brief).

Ike R. Gavzy, Asst. Pros., for respondent County of Bergen, State of New Jersey (Larry J. McClure, Bergen County Pros., attorney; Ike R. Gavzy, on brief).

George L. Schneider, Essex County Pros., atty. for respondent County of Essex, State of New Jersey (Elizabeth A. Duelly, Asst. Pros., of counsel and on brief).

Carol M. Henderson, Deputy Atty. Gen., for amicus curiae Atty. Gen. (Irwin I. Kimmelman Atty. Gen. of New Jersey, attorney; Carol M. Henderson, of counsel and on brief).

Before PRESSLER, DREIER and BILDER, JJ.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

These consolidated appeals arise out of extradition proceedings pursuant to the Uniform Criminal Extradition Law, N.J.S.A. 2A:160-6, et seq., against the three defendants, Frank A. Basto, Martin L. Carbone and Carl J. Palo, Jr., all New Jersey residents. Although each had been admitted to bail when arraigned on a fugitive warrant issued against them by the State of Florida, bail was revoked upon the subsequent issuance of arrest warrants by the Governor of the State of New Jersey. The sole reason for revocation was the trial judges' understanding that the courts of the rendering state are without power to admit a defendant to bail once the Governor's arrest warrant is issued. That conclusion was based upon the holding of In re Lucas, 136 N.J.Super. 24, 343 A.2d 845 (Law Div.1975), aff'd o.b. 136 N.J.Super. 460, 346 A.2d 624 (App.Div.1975), certif. den. 69 N.J. 378, 354 A.2d 306 (1975). We are here asked to reconsider the Lucas holding, which has not been passed upon by the New Jersey Supreme Court. Having done so, we are constrained to disagree with Lucas. Accordingly, we reverse the orders revoking bail and remand to the trial courts for their consideration of the bail question consistent with this opinion.

There is no dispute among the parties as to the relevant facts. All three defendants were charged by the State of Florida with the crimes of conspiracy to commit murder and attempted murder. The same alleged criminal conduct constituted the gravamen of indictments returned against them in the United States District Court for the District of New Jersey and the United States District Court for the Southern District of Florida, each of which had set bail for each defendant in the amount of $200,000. During the pendency of the federal charges, the State of Florida issued fugitive warrants against each of the defendants based on the Florida charges. Basto and Carbone surrendered to the Essex County Prosecutor's Office, were arraigned by the Superior Court in Essex County, and were each released on bail in the amount of $275,000. Palo surrendered to the Bergen County Prosecutor's Office, was arraigned by the Superior Court in Bergen County, and was released on bail in the amount of $250,000. Upon issuance of the Governor's arrest warrant pursuant to N.J.S.A. 2A:160-15, each appeared again before the court which had initially arraigned him, each stated his intention to pursue the habeas corpus relief afforded him by N.J.S.A. 2A:160-18, and each requested continuation of bail. The application for the continuation of bail pending the habeas corpus hearing was denied on the authority of Lucas. Each defendant then made an emergent application to this court for relief from the respective orders denying bail. We granted leave to appeal and have considered the matter on an expedited basis.

The question of the bailability of a defendant after the issuance of the governor's warrant and pending pursuit of his habeas corpus remedy has received considerable and diverse judicial attention throughout the country, and while the weight of authority still holds that bail is not allowable at that stage of the extradition proceeding, there has been of late, as described by one court, "an emerging minority view" to the contrary. Meechaicum v. Fountain, 537 F.Supp. 1098, 1100 (D.Kan.1982), rev'd 696 F.2d 790 (10th Cir.1983). We are persuaded that the predicates of the majority view, as represented in New Jersey by Lucas, do not withstand either the force of the analysis of the minority view or overriding state constitutional and criminal law principles commonly adhered to in this jurisdiction. Accordingly, we reject the Lucas holding.

The majority and minority view concur as to basic extradition principles. Both recognize the extradition mandate of the Federal Constitution which requires that

[a] person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. [ U.S.Const., Art. IV, § 2, par. 2]

Both recognize as well that each state is free to prescribe its own procedures for the performance of its extradition obligation provided only that these procedures are consistent with the constitutional mandate. And both recognize that all states have enacted the Uniform Criminal Extradition Law, 11 U.L.A. 51 (1974), some with minor variation, to govern internal extradition procedures. See id. at 51. And, finally, both agree that from the time of the initiation of the extradition proceeding until the issuance of the arrest warrant by the governor of the rendering state, the defendant may be admitted to bail. Indeed, the Uniform Law expressly so prescribes. N.J.S.A. 2A:160-24, following section 16 of the Uniform Law virtually verbatim, provides that:

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond or undertaking, and for his surrender, to be arrested upon the warrant of the governor of this state.

Since the statute explicitly conditions bail upon defendant's surrender to be arrested upon the warrant of the Governor, it has been uniformly construed as speaking only to the pre-rendition warrant stage of the extradition proceeding.

The point of departure between the majority and minority views is the consequence to be ascribed to the apparent silence of the Uniform Law with respect to post-rendition warrant bail. The majority view interprets that silence as an intended prohibition on the power of the court to grant bail after the governor's warrant is issued. It finds no inherent right to bail as a matter of state law. It also concludes that there is neither inherent power nor state constitutional or statutory authority for the court to admit to bail after issuance of the governor's warrant. And it is persuaded that the no-bail rule is consistent with the absolute obligation of each state to surrender fugitives upon the appropriate demand of another state. See In re Lucas, supra, 136 N.J.Super. at 30-31, 343 A.2d 845. And see, e.g., generally concurring in this view, Balasco v. State, 52 Ala.App. 99, 289 So.2d 666 (Ct.Crim.App.1974); State v. Jacobson, 22 Ariz.App. 260, 526 P.2d 784 (Ct.App.1974); Cadle v. Cauthron, 584 S.W.2d 6 (Ark.1979); Johnson v. District Court, 199 Colo. 458, 610 P.2d 1064 (1980); Grano v. State, 257 A.2d 768, 771 (Del.Super.Ct.1969); Buchanan v. State ex rel. Weiss, 166 So.2d 596 (Fla.Ct.App.1964); State ex rel. Howard v. St. Joseph Superior Court, 262 Ind. 367, 316 N.E.2d 356 (1974); Allen v. Wild, 249 Iowa 255, 86 N.W.2d 839 (1957); State v. Second Judicial District Court, County of Washoe, 86 Nev. 531, 471 P.2d 224 (1970), cert. den. 401 U.S. 910, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971); State ex rel. Schiff v. Brennan, 99 N.M. 641, 662 P.2d 642 (1983); In re Bayless, 119 Misc.2d 82, 462 N.Y.Supp.2d 396 (Co.Ct.1983); Emig v. Hayward, 703 P.2d 1043 (Utah 1985); In re Iverson, 135 Vt. 255, 376 A.2d 23 (1977); State v. Pritchett, 12 Wash.App. 673, 530 P.2d 1348 (Ct.App.1975).

Many of the courts which have recently considered the issue have rejected the majority view, concluding that the prohibitory consequence ascribed by that view to the silence of the Uniform Law is unnecessarily restrictive and simplistic. These jurisdictions have all been persuaded either that that silence does not override the court's inherent power to grant bail to confined persons or that the right to bail is a statutory or constitutional corollary to the right to a writ of habeas corpus vouchsafed by the Uniform Law. See, e.g., Carino v. Watson, 171 Conn. 366, 370 A.2d 950 (1976); Application of Haney, 77 Idaho 166, 289 P.2d 945 (1955); Petition of Upton, 387 Mass. 359, 439 N.E.2d 1216 (1982); Ruther v. Sweeney, 137 N.E.2d 292 (Ct.App.Ohio 1956). One state has amended its version of the uniform law expressly to permit post-rendition warrant bail. See Application of Carden, 291 Or. 515, 635 P.2d 341 (1981), cert. den. 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982). Two states, Nebraska and Texas, have reconsidered the issue after an initial no-bail holding and have opted to join the minority view. See State ex rel. Partin v. Jensen, 203 Neb. 441, 279 N.W.2d 120 (1979); Ex parte Quinn, 549 S.W.2d 198 (Tex.Crim.App.1977). And the Tenth Circuit has seriously questioned the conclusion of the United States District...