State v. Thompson

• Citation: 336 A.2d 11,133 N.J.Super. 180
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Christopher X. THOMPSON and Lawrence X. Thompson, Defendants-Appellants.
• Decision Date: 27 March 1975
• Court: New Jersey Superior Court — Appellate Division

Page 180

133 N.J.Super. 180

336 A.2d 11

STATE of New Jersey, Plaintiff-Respondent, v. Christopher X. THOMPSON and Lawrence X. Thompson,

Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 16, 1974.

Decided March 27, 1975.

Michael Grodjeski, Asst. Deputy Public Defender, for appellants (Stanley C. VanNess, Public Defender, atty.)

Franklin L. Flacks, Asst. Prosecutor, for respondent (Wilbur H. Mathesius, Acting Mercer County Prosecutor, atty.).

Before Judges MICHELS, MORGAN and MILMED.

The opinion of the court was delivered by

MICHELS, J.A.D.

Defendants appeal from a judgment of the Law Division vacating its prior restraint against the transfer of temporary custody of defendants to New York in accordance with the provisions of the Interstate Agreement on Detainers adopted by both New York and New Jersey. Execution of the judgment was stayed pending appeal.

Defendants were convicted in Camden County on an indictment charging assault and battery upon a police officer, assault with intent to kill a police officer and possession of a weapon, and on June 18, 1971 were sentenced to State Prison terms totalling 15 to 19 years. Since that date defendants have been, and presently are, in the custody of New Jersey.

On June 15, 1972 an indictment was returned in Kings County, New York, charging defendants and five others with attempted murder, assault in the first degree, assault in the second degree and possession of weapons in Kings County on or about August 14, 1970. On June 20, 1972 warrants for the arrest of defendants were issued in Kings County and on December 3, 1973 they were lodged with the warden of the State Prison as detainers against both defendants.

While, presumably, defendants were notified of these detainers pursuant to N.J.S.A. 2A:159A--3(c), neither one made a request for final disposition of the indictment on which the detainers were based. See N.J.S.A. 2A:159A--3(a).

Thereafter, on or about April 11, 1974, the District Attorney of Kings County requested temporary custody of both defendants under Article IV of the Interstate Agreement on Detainers (N.J.S.A. 2A:159A--4). Letters dated April 11, 1974 containing copies of requests for temporary custody (Form 5) of each defendant were sent to the Commissioner of Institutions and Agencies and the Superintendent of the State Prison. By letters dated June 4, 1974 the Acting Superintendent of the State Prison informed the District Attorney of Kings County that, with respect to each defendant, 'We, as well as the prisoner, are in receipt of your Request For Temporary Custody,' and that he was notifying the Governor of the State of New Jersey of the requests. He further informed the District Attorney that the Governor would have 30 days to approve or disapprove the request, and that he would advise of any further action, enclosing certificates of inmate status (Form 3) for each defendant. At the same time the Acting Superintendent sent to the Governor of the State of New Jersey letters dated June 4, 1974 in which he informed the Governor of the receipt of the requests for temporary custody for each defendant and indicated that each had also received his copy. The Acting Superintendent advised the Governor that the request was being referred to his office in accordance with Article IV, paragraph (a), of the Interstate Agreement (N.J.S.A. 2A:159A--4) and requested the Governor's advice.

On June 24, 1974, before the Governor took any action on the request, defendant Christopher X. Thompson applied for and obtained an Ex parte order in the Law Division restraining his transfer to New York for its temporary custody under the provisions of the Interstate Agreement. Defendant On July 3, u974 Assistant Counsel to the Governor acknowledged receipt of the request for temporary transfer of both defendants to New York and informed the Superintendent that the Governor had the right to disapprove the requests within 30 days of their receipt, and that the Governor 'will not exercise his right in this instance as no grounds have been advanced for not honoring New York's request.'

alleged that he never requested New York to obtain custody of him for the purpose of disposing of the detainer and requested a formal hearing to contest the legality of his transfer, pursuant to the provisions of N.J.S.A. 2A:159A--4(d). The Ex parte order had the effect of also staying the transfer for temporary custody of defendant Lawrence X. Thompson.

On October 25, 1974 the prosecutor moved to vacate the restraints. The Law Division judge held that Article IV of the Interstate Agreement on Detainers did not require an extradition type hearing and vacated the prior restraint against the transfer for temporary custody of defendants by New York. Defendants appeal, contending that such interpretation of Article IV violated their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, and seek a stay of their delivery to New York until they have been brought before a judge of a criminal court of record and notified of their right to petition the Governor and, if they desire to contest the legality of their delivery to New York, to fix a reasonable time to apply for writs of habeas corpus. Cf. N.J.S.A. 2A:160--18. ¹

Article IV (N.J.S.A. 2A:159A--4) in pertinent part provides:

ARTICLE IV

(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be enttled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

(d) Nothing contained in this Article shall be construed to deprive any prisoner of any right which the may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending State has not affirmatively consented to or ordered such delivery.

We construe the phrase 'to contest the legality of his delivery as provided in paragrpah (a) hereof' to mean that within 30 days after receipt by the appropriate authority in the sending state of the written request by the receiving state for temporary custody of the prisoner, the prisoner may move before the Governor of the sending state to disapprove the request. His failure to do so would be tantamount to a waiver of any right which he may have to contest the legality of his delivery. Defendants never moved before the Governor to disapprove New York's request for temporary custody of them, and therefore we hold that they waived any right which they may have had to contest the legality of their delivery to New York. Moreover, the Governor did not disapprove the requests, thereby entitling the District Attorney of Kings County to have defendants made available in accordance with the provisions of Article V of the Interstate Agreement (N.J.S.A. 2A:159A--5) so that a aspeedy and efficient prosecution may be had of the pending indictment against them in Kings County.

We find no merit to defendants' constitutional attack on Article IV of the Interstate Agreement. Procedural due process is satisfied. The filing of a detainer under the Interstate Agreement served to inform defendants that criminal charges had been brought against them in New York, and that Article IV required that there be a period of 30 days after receipt by the appropriate New Jersey authorities of a request for temporary custody before defendants may be released to New York. Thus, defendants were given notice and afforded a reasonable time within which to contest the legality of their delivery to New York. Wertheimer v. State, 294 Minn. 293, 201 N.W.2d 383, 386 (Minn.Sup.Ct.1972).

Moreover, we do not agree that...