The opinion of the court was delivered by: NEAHER
Petitioner, a State prisoner, is currently serving indeterminate terms of imprisonment with a maximum of 25 years which were imposed following his conviction by jury verdict of robbery in the first degree and grand larceny in the second degree on February 10, 1975. Upon appeal to the Appellate Division of the Supreme Court, Second Department, the case was remanded to the trial court to determine whether pre-arraignment or post-indictment delay was caused by the District Attorney. 54 A.D.2d 723, 387 N.Y.S.2d 400 (2d Dept.1976). After a hearing in the trial court, the Appellate Division unanimously affirmed the judgments of conviction, 56 A.D.2d 904, 392 N.Y.S.2d 845 (2d Dept.1977), and leave to appeal to the Court of Appeals was denied. 42 N.Y.2d 890, 397 N.Y.S.2d 1037, 366 N.E.2d 891 (1977).
Challenging his State convictions on three grounds, petitioner has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that the delay between the issuance of an arrest warrant and the commencement of his trial violated his Sixth Amendment right to a speedy trial; that the jury panel violated his Sixth and Fourteenth Amendment rights to be tried by a jury composed of a fair-cross section of the community; and that the State's failure to bring him to trial within 120 days of his arrival in New York under the terms of the Interstate Agreement on Detainers, 18 U.S.C.App. (the "IAD"), was contrary to provisions of the statute. The court finds none of the grounds asserted has merit and hence the petition is denied.
According to the undisputed facts, petitioner was produced from federal custody and brought to New York for prosecution pursuant to a previously filed detainer warrant and a subsequent request for temporary custody under the provisions of the IAD on March 28, 1974. On the following day, petitioner was arraigned and the matter was placed on a conference calendar on April 22, 1974. Petitioner's counsel stated at the conference that his client did not wish to plea bargain and wanted to be tried. The case was marked "Ready and Passed" for trial. On May 14th, the case was referred to another judge, and on June 20, 1974, the matter appeared on the trial calendar and was marked ready and passed to September 16, 1974. Thus, the facts disclose that on the 16th of September petitioner had remained in the State 172 days after his arrival without having been tried and appears to have stated a violation of the provisions of the IAD.
The primary purpose of the Interstate Agreement on Detainers is to provide a mechanism for the orderly and expeditious disposition of criminal charges pending against a prisoner held in one jurisdiction by authorities in another. The rationale for the IAD has been thoroughly explored and, by now, is so familiar that it need not be restated. For the IAD's history and purposes, see United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). It suffices to note that the IAD seeks fundamentally to protect a prisoner's rehabilitative opportunities and expectations and does so by imposition of strict timing requirements.
Article IV(c) provides that:
"In respect to any proceeding made possible by this article (providing for temporary custody of a prisoner by request of appropriate authorities), trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."
It is the provisions of this article that are alleged to have been violated, and it is the sanction of dismissal of the indictment with prejudice that petitioner seeks as a remedy. See Article IV(e).
Respondents raise numerous objections to petitioner's claim. First, they question the jurisdiction of the court under 28 U.S.C. § 2254 to hear a claim alleging a violation of the IAD. The argument is presumably that the IAD is not a law of the United States for purposes of § 2254. Although the Court of Appeals for this circuit has not apparently addressed the question, the courts that have dealt with the issue have uniformly decided that a claim raised under the IAD is cognizable under § 2254, at least where the United States is a sending or receiving jurisdiction. See, E. g., Echevarria v. Bell, 579 F.2d 1022, 1024-25 (7 Cir. 1978); Williams v. State of Md., 445 F. Supp. 1216, 1219 (D.Md.1978); Stroble v. Egeler, 408 F. Supp. 630, 633-34 (E.D.Mich.1976), rev'd on other grounds, 547 F.2d 339 (6 Cir. 1977), and Stroble v. Anderson, 587 F.2d 830 (6 Cir. 1978); Beebe v. Vaughn, 430 F. Supp. 1220, 1222-23 (D.Del.1977). Assuming a substantial jurisdictional issue exists, this ample precedent demonstrates that where, as here, the United States is a sending jurisdiction, federal rights are implicated and the court has jurisdiction over the claim.
Respondents next suggest in somewhat vague terms that petitioner failed to raise the IAD claim according to State procedure and thus should be deemed to have committed a procedural default barring federal habeas corpus review under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1977). They contend that the IAD claim was first raised in a supplemental brief filed in the Appellate Division after the hearing on the original remand from the Appellate Division disclosed to petitioner's counsel the existence of an IAD claim and that the "Appellate Division, in accordance with New York's preservation of issues requirements did not apparently pass on the merits of the newly raised Agreement issue." (Respondent's Memorandum at 14.)
On the first day of his trial, however, petitioner moved in accordance with New York Criminal Procedure Law § 210.45 for an order dismissing the indictment on the ground that defendant had been "denied his right to a speedy trial, pursuant to the applicable provisions of the Criminal Procedure Law, and for whatever additional relief this Court may deem just and proper." While it is clear that the motion raised the speedy trial issue in terms of the Sixth Amendment right and the New York statutory counterpart, CPL § 30.20, New York courts will entertain federal claims on appeal "even though not expressly raised at trial if a similar claim seeking similar relief Was clearly raised." County Court of Ulster County v. Allen, 442 U.S. 140, 151 n.10, 99 S. Ct. 2213, 2221, 60 L. Ed. 2d 777 (1979), Citing People v. De Bour, 40 N.Y.2d 210, 214-15, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976); People v. Robbins, 38 N.Y.2d 913, 382 N.Y.S.2d 977, 346 N.E.2d 815 (1976); People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1969) (emphasis in original). Cf. People v. Primmer, 46 N.Y.2d 1048, 416 N.Y.S.2d 548, 389 N.E.2d 1070 (1979) (IAD claim raised for first time on appeal not reviewable).
Upon learning of the existence of a possible violation of the IAD at the hearing on remand from the Appellate Division on the speedy trial issue, petitioner filed a supplemental brief squarely raising the claim. Respondents assert that the Appellate Division "apparently" did not consider it or pass on its merits. Although it is not possible to determine whether the IAD point was considered or passed on by the Appellate Division, it is clear it was presented to the court. Cf. Smith v. Digmon, 434 U.S. 332, 98 S. Ct. 597, 54 L. Ed. 2d 582 (1978). Thus, the Appellate Division had an opportunity to pass on the claim specifically brought to its attention and, in the absence of any express indication that the court did not consider the point adequately preserved for appeal, see Wainwright v. Sykes, supra, 433 U.S. at 74, 97 S. Ct. at 2499, this court cannot hold that petitioner committed a procedural default barring federal habeas review. In this situation, comity will not be offended, judicial economy will be served, and the interests of New York will be respected if the claim is considered on the merits. See County Court of Ulster County v. Allen, supra, 442 U.S. at 154 & n.13, 99 S. Ct. at 2223. Cf. Rivera v. Harris, Dkt. No. 78 C 349, slip op. (S.D.N.Y. July 28, 1978).
This conclusion is at least implicitly supported by the citation in County Court of Ulster County v. Allen, supra, to United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978), Affirming United States v. Ford, 550 F.2d 732 (2 Cir. 1977), which construes various provisions of the IAD. In Mauro, the Court concluded that appellant's failure to invoke the IAD in specific terms in the trial court did not result in a waiver of the IAD claim where the record disclosed that he did make the objection in general terms, thereby placing the Government on notice of the substance of the claim and, as here, did not actually know that a detainer was lodged against him. See also ...