STATE OF NEW JERSEY v. KEIYA MERSHON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0375-10T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEIYA MERSHON,

Defendant-Respondent.

___________________________________________

April 29, 2011

Submitted February 14, 2011 Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-11-1656.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for appellant (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals from the August 17, 2010 order dismissing the indictment against defendant Keiya Mershon with prejudice. We reverse and remand the matter for trial.

A Middlesex County Grand Jury indicted defendant with third-degree theft, N.J.S.A. 2C:20-3, and third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2. The charges stem from the May 20, 2006, taking of a 2004 Freightliner Truck belonging to Spirits Delivery by defendant and Bruno Coecho. Defendant was found inside the truck and arrested. After he posted bail, defendant was arrested by federal authorities. He therefore failed to appear for his arraignment. On November 16, 2006, a warrant was issued for his arrest. A second warrant was issued on June 15, 2007; the Middlesex County Prosecutor sent a copy of this warrant to the Federal Detention Center in Philadelphia, Pennsylvania under cover letter dated June 14, 2007.

On April 30, 2008, defendant filed a motion for speedy trial or disposition of all warrants or detainers. At the time, defendant was serving a ninety-month term imposed by a federal judge in the United States District Court for the Eastern District of Pennsylvania. Because defendant was in another jurisdiction, the motion was not listed for argument.

Almost two years later, on February 19, 2010, the Federal Bureau of Prisons (Bureau) informed the Prosecutor that defendant had requested disposition of the charges pending in Middlesex County by invoking Article III of the Interstate Agreement on Detainers (IAD), codified in New Jersey at N.J.S.A. 2A:159A-1 to -15. The Bureau requested that defendant be brought to trial within 180 days of receipt. The necessary IAD forms were executed by defendant and enclosed with the Bureau's letter.

By March 2, 2010, the Prosecutor acknowledged receipt of the request, sent IAD form VII (Acceptance of Temporary Custody) and arranged for defendant to be transferred to the custody of its agent on April 5, 2010. Defendant was transported to New Jersey and trial was set for April 19, 2010.

Represented by counsel, defendant moved to dismiss the indictment. The judge agreed with defendant's argument that the period set by the IAD for the return of defendant to New Jersey commenced on June 14, 2007, when the Prosecutor sent the warrant to the Federal Detention Center. Thus, the judge dismissed the indictment, but stayed this order pending appeal.

On appeal, the State contends that "defendant did not correctly follow the IAD and the indictment should not have been dismissed." We agree.

The IAD, adopted by forty-eight states, the federal government, the District of Columbia, the Virgin Islands and Puerto Rico, governs the procedure to be followed when a prisoner is in custody in one jurisdiction, but is wanted for trial in another jurisdiction. State v. Baker, 198 N.J. 189, 192 n.1 (2009); N.J.S.A. 2A:159A-2. The IAD signatories found that "charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." N.J.S.A. 2A:159A-1. The purpose of the IAD is "to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." Ibid.

The IAD defines a "Sending State" as "a State1 in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III [N.J.S.A. 2A:159A-3] hereof or at the time that a request for custody or availability is initiated pursuant to Article IV [N.J.S.A. 2A:159A-4] hereof." N.J.S.A. 2A:159A-2(b) (footnote omitted). A "Receiving State" means "the State in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof." N.J.S.A. 2A:159A-2(c) (footnote omitted).

When a warrant is issued for a prisoner who has escaped or failed to appear in court on an appointed date, the Sending State issues a warrant to any law enforcement official and forwards it to many jurisdictions because it does not know where the prisoner is, only where the prisoner is not. Once a warrant is received, it acts as a detainer if the subject of the warrant is incarcerated in that state. Issuing a warrant is not a triggering event pursuant to the IAD.

Article III of the IAD, N.J.S.A. 2A:159A-3, governs the procedures to be followed when an inmate wishes to invoke the IAD. It provides that the prisoner "shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court . . . written notice of the place of his imprisonment and his request for a final disposition to be made of the" pending charge. N.J.S.A. 2A:159A-3(a). This request must

be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner.

[Ibid.]

This written notice and request for final disposition must "be given or sent by the prisoner to the . . . official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested." N.J.S.A. 2A:159A-3(b). If trial is not commenced within 180 days after the prisoner has filed the request with the prosecuting offices, and appropriate court in the Receiving State, the indictment shall be dismissed with prejudice. N.J.S.A. 2A:159A-3(d).

This provision applies unless the Receiving State tribunal grants a continuance for good cause. To put it simply, New Jersey had no ability to secure the presence of defendant in this state. Issuance of a warrant, by itself, neither identifies the location of the prisoner, nor compels the presence of the defendant. That is why the IAD exists. It does not provide that the period to commence defendant's trial begins to run with issuance of the warrant. The period begins to run in accord with the requirements of either Article III or IV, depending on whether the Receiving State or the prisoner has sought the return to the Receiving State.

Here, the warrant was issued on November 6, 2006. Defendant's location first became known when defendant filed the motion for a speedy trial on April 30, 2008. This was much longer than 180 days. Thus, to adopt the reasoning of the judge, defendant was entitled to a dismissal of all charges, if his whereabouts remained unknown for 180 days. Such result would be contrary to the IAD, which is to be "liberally construed so as to effectuate its purposes." N.J.S.A. 2A:159A-9. State v. Chirra, 79 N.J. Super. 270, 277 (Law Div. 1963).

Article IV of the IAD, N.J.S.A. 2A:159A-4, governs situations where the prosecuting authority in the Receiving State seeks the return of the prisoner for trial. In that case, and upon compliance with all requirements, the trial must occur within 120 days of the arrival of the prisoner in the Receiving State. N.J.S.A. 2A:159A-4

From our review of the record, we conclude that the Middlesex County Prosecutor did not invoke Article IV when he sent the June 14, 2007 letter. Rather, defendant invoked Article III when he sent the required documents to the Prosecutor in February 2010. We further conclude that, pursuant to Article III, defendant was promptly delivered to Middlesex County within the statutory period. The judge should not have dismissed the indictment and the matter should have proceeded to trial.

We reject the judge's reasoning that the IAD period for the start of trial commenced to run upon the issuance of the warrant, which became a detainer when defendant was located at the federal correctional facility. The mere lodging of a detainer in the sending jurisdiction does not suffice to invoke the Article IV procedures.

We also reject the argument that defendant's motion for speedy trial can be deemed to be an invocation of the IAD. Such motion does not constitute compliance with Article III.

"In sum, the State did not initiate proceedings under the IAD in June 2007. Defendant did not properly comply with the IAD until February 2010; the State thereupon complied with its obligation to schedule defendant for trial in Middlesex County within 180 days. N.J.S.A. 2A:159A-3(a)."

1 Includes the United States and other signatories that are not actual states.