the state in which the absconding defendant is arrested,
even if the waiver does not conform to procedures
pursuant to N.J.S.A. 2A:160-1 et seq.. See State v. Maglio,
189 N.J. Super. 257 (Law Div. 1983). Such waivers
should, however, be explicit, not implicit. Id.
It is clear that the guilt or innocence of the accused
may not be challenged except as it may be involved in
identifying the person held as the person charged with
the crime. N.J.S.A. 2A:160-28; In re Cohen, supra.
Moreover, the asylum state has no authority to adjudge
the technical sufficiency of the indictment, this being
exclusively within the domain of the demanding state.
State v. Phillips, supra. Nor are the merits underlying the
proceedings a proper subject of inquiry. Foley v. State,
supra; Frank v. Naughright, 1 N.J. Super. 242 (App. Div.
1949); Cf. Klaiber v. Frank, 9 N.J. 1 (1952) (if executive
authority of asylum state knows of intent to use
extradition proceedings to attain civil jurisdiction of
individual and as means to private ends, rendition
warrant cannot lawfully issue.) The merits of the
accused’s trial and whether his constitutional rights have
been violated in the proceedings leading to his conviction
in the demanding state may not be considered either. In
re Cohen, supra; State v. Wilson, 135 N.J.L. 398, 400 Ct.
1947). However, in State v. Diefenbach, 137 N.J. Super.
531 (Law Div. 1975), the Court held that the Sixth
Amendment speedy trial prosecutions are applicable to
extradition proceedings, and such a constitutional issue
is cognizable at the extradition hearing.
Moreover, a governor’s grant of extradition in the
asylum state is prima facie evidence that the
constitutional and statutory requirements for extradition
have been met. A court considering defendant’s petition
for habeas corpus can do no more than decide whether the
extradition documents are in order; whether he is charged
with a crime in the demanding state; whether he is the
named person, and whether the defendant is a fugitive.
Once the governor of the asylum state acts on a
requisition for extradition based on the demanding
state’s finding of probable cause, no further judicial
inquiry may be had on that issue in the asylum state.
Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58
L.Ed.2d 521 (1978).
In Puerto Rico v. Branstad, 483 U.S. 219, 107 S.Ct.
2802, 97 L.Ed.2d 187 (1987), the Court, overruling
Kentucky v. Dennison, 24 How. 66 (1861), held that
federal courts have the power to order the governor of the
state to fulfill the state’s obligation under the Extradition
Clause of the Constitution, Art. IV, § 2, to deliver up
fugitives from justice.II. BAIL
Until such time as a Governor’s extradition warrant
is issued, N.J.S.A. 2A:160-24 authorizes an arrested
fugitive’s release on bail unless he is charged with an
offense punishable by death or life imprisonment in the
demanding state. In re Lucas, 136 N.J. Super. 24 (Law
Div. 1975), aff’d 136 N.J. Super. 460 (App. Div. 1975),
certif. denied, 69 N.J. 378 (1975).In Matter of Basto, 108 N.J. 480 (1987), the Supreme
Court held that the silence of the Uniform Criminal
Extradition Law on availability of bail after the governor’s
warrant is issued was not intended to preclude
availability of postwarrant bail, at least for nonfugitives,
for whom return to the demanding state is not
constitutionally required; thus, pending habeas corpus
hearing and any appeal therefrom, a nonfugitive accused
who has been granted bail after delivering himself into
custody in the asylum state pursuant to a requisition
warrant issued by the governor of demanding state is
eligible for bail after the governor of the demanding state
had issued an arrest warrant. Notwithstanding this
holding, the Supreme Court nonetheless cautioned, “the
power [to admit to bail] must be circumspectly
exercised” even though the extraditee is a nonfugitive
since, once the New Jersey governor has exercised
discretion in favor of extradition, there is a solemn
obligation to deliver up the extraditee if the habeas corpus
application is unsuccessful. This obligation is not
diminished by the fact that, as to a nonfugitive, the
rendition state governor’s obligation finds its source in
principles of comity rather than in a constitutional
requirement.New Jersey’s constitutional right to bail applies only
to New Jersey crimes and does not bar application of
nonbailable provisions of the Uniform Criminal
Extradition Law. State v. Morel, 253 N.J. Super. 420
(App. Div. 1992). Thus, in Morel, the accused was
charged in another state with an offense punishable there
by life imprisonment was not bailable in New Jersey
during pendency of rendition proceedings.III. SENTENCING AND INCARCERATION
R.. 3:21-8, which provides credit for time spent in
custody, should be liberally construed. State v. Johnson,
167 N.J. Super. 64 (App. Div. 1979). Where defendant
has spent time in custody resisting extradition, a failure