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DOCKET NO. A-3001-13T2







December 18, 2014


Submitted October 16, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-03-0487.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).


The State appeals from an order granting defendant's motion to dismiss an indictment on the ground the State failed to adhere to the Interstate Agreement on Detainers (IAD), codified in New Jersey at N.J.S.A. 2A:159A-1 to -15. We reverse.


Defendant had been convicted of a sexual offense requiring community supervision for life. See N.J.S.A. 2C:43-6.4. Defendant allegedly violated the conditions of community supervision and, on March 21, 2012, was indicted by a Bergen County Grand Jury for fourth-degree violation of community supervision for life, N.J.S.A. 2C:43-6.4. At that time, defendant was serving a sentence in a federal correctional institution in Beaver, West Virginia. In August 2013, defendant filed a request for final disposition of the charge for which he had been indicted, pursuant to Article III of the IAD. See N.J.S.A. 2A:159A-3(a). It is undisputed that this request was received by the Bergen County prosecutor on August 22, 2013.

During January 2014, the parties engaged in plea negotiations. Unable to resolve the matter, on January 29, 2014, defense counsel sent an email to the assistant prosecutor advising that defendant wanted to proceed to trial, a representation defendant repeated on February 3, 2014 to both the court and the State.

On Friday, February 14, 2014, defendant filed a motion to dismiss the indictment on the ground the State failed to bring defendant to trial within 180 days of filing his request for a final disposition as required by N.J.S.A. 2A:159A-5(c). On that same day, the parties appeared before the court on the motion. Because 180 days had not elapsed since August 22, 2013, the court declined to hear and decide the motion and ordered the parties to appear on Tuesday, February 18, 2014, to begin trial. Monday, February 17, 2014 was a legal holiday and the courts were closed.

The parties appeared in court the morning of February 18, 2014. At that time, defendant submitted a brief to the court and the State on his motion to dismiss the indictment. The parties were informed the case had been assigned to another judge, but they were told they did not have to report to that judge until the afternoon in order to give him an opportunity to review defendant's brief. The matter was conferenced later in the day with that judge, who instructed the parties to appear the following morning to argue the motion.

During oral argument, defendant contended February 18, 2014, the day the matter was assigned for trial, was 181 days from August 22, 2013, the day the prosecutor received notice defendant was invoking his rights under N.J.S.A. 2A:159A-3(a). The State conceded it received defendant's request on August 22, 2013, but maintained the first day for computing the 180-day period was August 23, 2013, making February 18, 2014 the last day of the 180-day period the matter could be brought to trial. The trial court found that the trial did not commence within the requisite statutory time period and dismissed the indictment.


On appeal, the State argues the trial court erred because the 180-day period within which defendant was to be brought to trial had not expired at the time the court dismissed the indictment. The State further contends that, during the period defendant engaged in plea negotiations and while his motion to dismiss the indictment was pending, the statutory time limitation was tolled.

"The Interstate Agreement on Detainers (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, 120 S. Ct. 659, 662, 145 L. Ed. 2d 560, 564 (2000); State v. Baker, 198 N.J. 189, 191 n.1 (2009). New Jersey and West Virginia are parties to the IAD. The purpose of the IAD is "to encourage the expeditious and orderly disposition of [charges outstanding against a prisoner incarcerated in another jurisdiction] and [to determine] the proper status of any and all detainers based on untried indictments, informations or complaints." N.J.S.A. 2A:159A-1.

"Article III of the Interstate Detainer Agreement gives a prisoner incarcerated in one State the right to demand the speedy disposition of 'any untried indictment, information or complaint' that is the basis of a detainer lodged against him by another State." Carchman v. Nash, 473 U.S. 716, 718-19, 105 S. Ct. 3401, 3402-03, 87 L. Ed. 2d 516, 519-20 (1985). "[E]ither 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). After receiving such request, the prisoner must "be brought to trial within 180 days." N.J.S.A. 2A:159A-3(a). Article V of the IAD provides that the failure to abide by the time limit set forth in Article III requires the dismissal of the indictment. N.J.S.A. 2A:159A-5(c).

Here, defendant invoked his rights under Article III by filing a request for final disposition with the court and the Bergen County prosecutor. It is undisputed the 180-day period began to run when the defendant's request for final disposition was actually delivered to the prosecutor on August 22, 2013. The issue is whether "day one" of the 180-day period is the day the prosecutor received the request or whether the first day did not come into existence until a full twenty-four hours had elapsed after the prosecutor received the prisoner's request. The IAD does not provide any specific method for computing the 180-day period.

Although as a congressionally sanctioned interstate compact the interpretation of the IAD is a question of federal law, Pero, supra, 370 N.J. Super. at 214 (quoting Cuyler v. Adams, 449 U.S. 433, 442, 101 S. Ct. 703, 709, 66 L. Ed. 2d 641, 650), the question presented here is one involving procedure and is thus controlled by state law. See State v. Whitehead, 104 N.J. 353, 357 (1986); Brown v. New Jersey, 175 U.S. 172, 20 S. Ct. 77, 44 L. Ed. 119 (1899). In our jurisdiction, "[u]nder the uniform method of calculation applicable to legal matters in New Jersey the date of the act or event from which a designated period begins to run is not included in determining a time limitation." Patterson v. Monmouth Regional High School Bd. of Education, 222 N.J. Super. 448, 451 (App. Div. 1987) (citing Poetz v. Mix, 7 N.J. 436, 445 (1951)), certif. denied, 110 N.J. 183 (1988). Accordingly, the first full day in the subject

180-day period was August 23, 2013, making February 18, 2014

day 180 the last day defendant could be brought to trial under the IAD.1 On this date defendant was in fact brought to trial. While defendant's motion had to be heard and decided, nevertheless, the parties were assigned out to trial and, as is common before a jury is brought into a courtroom or testimony begins in a non-jury matter, motions or other applications are heard by the court. As defendant was brought to trial within 180 days of serving his request for final disposition upon the prosecutor, the indictment should not have been dismissed.

Even if it were undisputed defendant had not been brought to trial until February 19, 2014, by making his motion to dismiss the indictment on Friday, February 14, 2014, and then filing a brief on Tuesday, February 18, 2014, the day the trial was to begin, defendant implicitly consented to delaying the trial to give the court the time necessary to hear and dispose of his motion. Under Article III of the IAD, the court may grant a reasonable continuance of a trial for good cause and thus expand the 180-day time period. N.J.S.A. 2A:159A-3(a); State v. Millett, 272 N.J. Super. 68, 57 (App. Div. 1994). Here, there was good cause to delay the trial and expand the 180-day period to allow the court to hear and decide defendant's motion.

Reversed and remanded. We do not retain jurisdiction.

1 The outcome would be the same under federal law. The Federal Rules of Criminal Procedure provides that "in computing any time period . . . in any statute that does not specify a method of computing time[,] . . . [and] [w]hen the period is stated in days, . . . (A) . . . the day of the event that triggers the period [shall be excluded.]" Fed. R. Crim. P. 45(a)(1).