State v. Masselli
| Decision Date | 07 July 1964 |
| Docket Number | No. A--128,A--128 |
| Citation | 202 A.2d 415,43 N.J. 1 |
| Parties | The STATE of New Jersey, Plaintiff-Respondent, v. William MASSELLI, Defendant-Movant. |
| Court | New Jersey Supreme Court |
Marvin H. Gladstone, Hackensack, for appellant.
Ronald J. Picinich, Asst. Pros., for respondent (Guy W. Calissi, Bergen County Pros., attorney).
The opinion of the Court was delivered by
This case involves the Interstate Agreement on Detainers adopted by both New Jersey (N.J.S. 2A:159A--1 et seq., N.J.S.A.) and New York (N.Y. Code of Criminal Procedure § 669--b). Pursuant to the agreement, defendant, while serving a prison term in New York, was brought to New Jersey to answer charges in Union County and in Bergen County. In Union County he contended successfully that the prosecution had failed to meet certain time limitations, to which we shall later refer, and hence the indictment in that county had to be dismissed. The court's opinion, reported under the name of a codefendant, is State v. Chirra, 79 N.J.Super. 270, 191 A.2d 308 (Law Div.1963). No appeal was taken from that judgment. Defendant then sought dismissal of the Bergen County indictment on like grounds. His applications there, both by motion and by Habeas corpus, were denied. We certified his appeals before argument in the Appellate Division.
The New York enactment of the Interstate Agreement on Detainers became effective on September 1, 1957 and the New Jersey counterpart on April 18, 1958. The purpose of the agreement appears in N.J.S. 2A:159A--1, N.J.S.A.
The statute permits the transfer of temporary custody of a prisoner by the State of imprisonment, called the 'sending' State, to the State which lodged a detainer, called the 'receiving' State. The transfer may be made either on the prisoner's initiative or on the initiative of the receiving State. Article III, which appears in N.J.S. 2A:159A--3, N.J.S.A., and deals with a prisoner's request, provides that 'he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction' his written request for a final disposition of the indictment, information or complaint. The prisoner's request constitutes a waiver of extradition as to all charges in the receiving State for which detainers have been lodged.
Article IV (N.J.S. 2A:159A--4, N.J.S.A.) deals with an application for temporary custody made by a prosecuting official of the receiving State. It provides for a delay of 30 days after receipt of the request during which period the Governor of the sending State may disapprove the transfer on his own or upon the prisoner's motion. Subsection (c) reads:
'In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.'
Article V (N.J.S. 2A:159A--5, N.J.S.A.) provides that in response to a request by the prisoner or the receiving State, the sending State shall 'offer' to deliver temporary custody to the receiving State and the representative of the receiving State 'accepting an offer' shall present evidence of his authority and copies of the indictments. Subsection (c) contains one of the provisions critical in this case:
'If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint 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.'
Article VI (N.J.S. 2A:159A--6, N.J.S.A.) provides that the running of the 180 days under Article III and the 120 days under Article IV 'shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.' It also provides that the agreement shall not apply to a person 'who is adjudged to be mentally ill.'
The statute authorizes the promulgation of rules and regulations, N.J.S. 2A:159A--7 and 14, N.J.S.A. We will later refer to sundry forms so adopted.
With this statutory outline in mind, we can approach the facts.
On August 31, 1957 defendant was arrested in New York State. On March 24, 1958 he was convicted in Orange County, New York, and sentenced to a term of 10 to 15 years. He remained in New York's custody without interruption until January 23, 1963 when temporary custody was given to the prosecutor of Union County, New Jersey.
On October 2, 1957 a warrant for defendant's arrest for armed robbery was issued in Bergen County, New Jersey, and a detainer duly lodged in New York. The indictment later returned on that charge is the indictment here involved.
On April 7, 1958 indictments were returned in Union County, New Jersey, and detainers thereon were lodged with New York.
Presumably defendant was notified of these detainers pursuant to the New York counterpart of N.J.S. 2A:159A--3(c), N.J.S.A., which provides that the warden shall promptly inform a prisoner of all detainers '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.' In any event, the record before us reveals that by letter dated January 20, 1959 the prosecutor of Bergen County asked the warden of Sing Sing Prison to inquire of defendant whether he 'would be willing to return' to New Jersey under the Interstate Agreement on Detainers to stand trial on the indictment. On February 3, 1959 the warden replied that defendant 'was interviewed and stated that he does not wish to make final disposition of the open indictment on file against him for armed robbery until he has consulted a lawyer.' Thus defendant was fully aware of the indictment and also of his opportunity for an early trial in Bergen County which he declined. Indeed, the record makes it perfectly plain that defendant was determined to avoid a trial on the merits.
On January 14, 1960, the prosecutor of Union County requested temporary custody under Article IV of the Interstate Agreement. On February 10, 1960, the warden of the New York prison advised the prosecutor that he was prepared to make delivery 30 days later (March 10, 1960) upon presentation of evidence of authority and the indictment as provided in N.J.S. 2A:159A--5, N.J.S.A.
Defendant without success urged the Governor of New York to disapprove of the transfer under Article IV (N.J.S. 2A:159A--4(a), N.J.S.A.). At the same time he quite obviously sought to complicate matters by demanding an immediate trial in Bronx County, New York, on another charge there pending. Defendant had been convicted of that other charge on December 4, 1958 and had obtained a reversal on March 1, 1960. People v. Masselli, 10 A.D.2d 45, 196 N.Y.S.2d 908 (1st Dep't 1962). On March 2, 1960, which was eight days short of the anticipated date of delivery to New Jersey, defendant demanded retrial in Bronx County under § 669--a of the New York Code of Criminal Procedure which applies intrastate and requires trial within 180 days after a prisoner's request. An administrative clerk in New York took the position that his demand could not be honored because of the impending transfer to New Jersey. Subsequently defendant prevailed in New York on his claim that the Bronx indictment had to be dismissed because he was not brought to trial in response to his demand within the period provided in the New York Code. People v. Masselli, 17 A.D.2d 367, 234 N.Y.S.2d 929 (1st Dep't 1962).
Meanwhile, on April 29, 1960, the prosecutor of Union County decided that he could not try defendant before the September 1960 term and notified the New York authorities accordingly. What transpired between March 10, the anticipated date for delivery, and April 29, we do not know. Union County did nothing more until December 6, 1962, when it instituted new proceedings under the Interstate Agreement and on January 23, 1963 it acquired temporary custody. Meanwhile for part of the period defendant had been occupied with charges both in Bronx County referred to above and in Nassau County, New York.
Defendant sought unsuccessfully to prevent his transfer in January 1963 to New Jersey by proceedings in both state and federal courts. Nonetheless defendant later prevailed, as we noted at the outset, on his motion to dismiss the Union County indictment on the ground that the prosecutor of that county had failed to bring him to trial in accordance with the Interstate Agreement. State v. Chirra, supra, 79 N.J.Super. 270, 191 A.2d 308. Thus defendant duplicated his success in Bronx County. The dismissal in Union County was not appealed and we have no occasion to consider the validity of that action.
While his motion to dismiss was pending in Union County, defendant sought to play Bergen County against Union County just as he had sought to pit Bronx County against...
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