to give him credit for this time would chill his
constitutional right to contest extradition. Id. In State v.
Corbitt, 147 N.J. Super. 195 (Law Div. 1977), the issue
was whether a sentence imposed by a New Jersey court
should be served concurrently or consecutively to a
sentence previously imposed in another state when the
defendant had been brought to New Jersey, upon the
interruption of his confinement in the other jurisdiction,
under the terms of an extradition agreement which
required his immediate return upon the completion of
the New Jersey prosecution. The sentencing judge was
unaware of the proceedings in that other state and
therefore made no comment and gave no direction. The
court, in concluding that the sentence must run
concurrently with the sentence pending in the foreign
jurisdiction, stated that the burden of calling the terms
of such an agreement to the attention of the sentencing
judge rested upon the State. See N.J.S.A. 2C:44-4 and 5;
see also Braedon v. New Jersey Dept. of Corrections, 132
N.J. 457 (1993) (credit for time spent while serving
under conviction in one jurisdiction will not be allowed
against sentence upon another conviction in second
jurisdiction).
In State v. Parsells, 124 N.J. Super. 144 (App. Div.
1973), certif. denied, 63 N.J. 562 (1973), the Appellate
Division adopted the majority rule that the release of a
convict to one sovereign for prosecution for another crime
or to serve a sentence for which crime the prisoner has
already been convicted by another sovereign does not
constitute a waiver of that sovereign’s right to exact the
full penalty. Where a prisoner serving a sentence is
extradited as a fugitive from justice and delivered to
another state, jurisdiction over his person is not forever
waived by the asylum state. The prisoner may be
extradited to the asylum state to serve the remainder of his
sentence. Although federal courts have the power to
compel rendition, rendition remains discretionary if the
fugitive demanded is incarcerated in an asylum state for
violation of that state’s laws; the governor’s duty to
extradite in such situation does not mature until
punishment in the asylum state has been completed.
State v. Robbins, 124 N.J. 282, 286-290 (1990). As
matter of comity, the governor of the asylum state may
choose to extradite prisoner incarcerated in the asylum
state for violation of that state’s law prior to completion
of punishment. Id. at 293. Executive authority of the
asylum state may withhold a rendition request until the
fugitive has completed his prison sentence imposed by
the court of the asylum state, but this is a matter of
executive discretion and not a personal right of the
fugitive. The executive of the asylum state may waive the
right of that state to retain the prisoner and may
surrender him to the demanding state while he is still
undergoing, or subject, to punishment in the asylum
state. Id. at 293-294.IV. JUVENILES
In State in Interest of D.N.H., 147 N.J. Super. 1 (App.
Div. 1977), a juvenile charged as an adult with murder
in a foreign state was extradited as an adult following a
hearing at which he was represented by counsel and given
the opportunity to oppose the extradition. The
Appellate Division held that the extradition hearing was
appropriate and a preliminary hearing to determine his
status as a juvenile was not required. R. 5:9-5(b) and
N.J.S.A. 2A:4-48 were not applicable to extradition
procedures, and nothing in the Interstate Compact on
Juveniles (N.J.S.A. 8:23-1 et seq.) indicated that the
hearing required by it was to determine the status of the
person charged. It should be noted that R. 5:9-5(b) was
superseded by R. 5:22-2 and N.J.S.A. 2A:4-48 was
repealed and replaced by N.J.S.A. 2C:4A-26, effective
December 31, 1983.V. RELEASE OF THE ACCUSED
In Application of Dunster, 131 N.J. Super. 22 (App.
Div. 1974), certif. denied, 67 N.J. 72 (1975), the orderly
disposition of extradition proceedings was interrupted by
local detainers and proceedings resulting in sentences of
up to 390 days and continuances resulting from the
accused’s challenge to extradition. He was released on
bail a short time after completion of his local jail sentences
and remained on bail pending receipt of the foreign
requisition and disposition of the extradition proceed-
ings. These circumstances presented no basis for
discharging the accused. The purpose of N.J.S.A.
2A:160-21 to 2A:160-23 is to allow an accused to be
held in jail after his original arrest while awaiting the
Governor’s warrant pursuant to a foreign requisition, but
to prevent detention for an undue length of time. The
demanding state is not to be penalized for awaiting the
outcome of valid court proceedings brought by an
accused, before undertaking the expense of sending its
agent to claim him. Moreover, the 30 day period
specified in 18 U.S.C. § 3182, pertaining to the release
of an arrested fugitive, begins to run after the arrest
effected pursuant to the Governor’s rendition warrant.