The opinion of the court was delivered by: DITTER
On May 23, 1985, defendant plead guilty before me to charges of conspiracy to distribute diazepam and unlawful use of a telephone. Defendant had previously plead guilty to drug charges in New Jersey and on May 28, 1985, he was sentenced to five years imprisonment. Three days later, he applied for handling under the intensive supervision program. On June 24, 1985, I sentenced defendant to a two-year term of imprisonment, recommending that he serve it in New Jersey concurrently with his state sentence. When I sentenced defendant, his counsel requested a sentence of probation since "a jail term on this case  would make him not eligible for that program [ISP]. . . ." (1/24/85 N.T. 5).
Defendant then filed a petition for reduction of sentence to probation on the ground that his federal sentence of imprisonment would prevent his entering ISP.
Subsequently, on October 4, 1985, defendant was accepted into ISP on a trial basis. After successful completion of the trial period, defendant's sentence of imprisonment on the state conviction was suspended, and he was resentenced to five years in ISP. Prior to his acceptance, federal officials had not filed a detainer with the New Jersey authorities. In November, 1986, defendant's federal probation officer learned of his release into ISP and the present motion followed.
The government and defendant agree that defendant would not have been accepted into the intensive supervision program if state officials had known of his federal sentence of incarceration. Each side attributes the lack of notice to the other. Defendant also claims that I lack jurisdiction to grant the government's motion or, in the alternative, that his sentence ran while he was sentenced to ISP. Before addressing defendant's arguments, I will briefly summarize the features of ISP.
The New Jersey Intensive Supervision Program is run under the supervision of the New Jersey Superior Court and is designed to alleviate overcrowding in the state's penal institutions. Each applicant undergoes a screening process. Once accepted, a participant is released into the community under the close supervision of an ISP officer and on the condition that he reside in New Jersey, have a community sponsor, submit to random visits or physical examinations by ISP officials, maintain lawful employment, pay all debts and fines, perform community service, and otherwise live a law-abiding life. A prisoner who successfully completes the trial period has his sentence of imprisonment suspended and is resentenced to a term in ISP.
An ISP participant normally receives day to day credit towards his suspended sentence for time spent in ISP. However, the director of ISP wrote that ISP participants who are recommitted "usually receive additional time in custody from the Parole Board." Letter from Richard Talty (Brief for defendant, Exh. 24a).
Defendant claims that I have no power to grant the government's requested relief because he is under the exclusive custody and control of New Jersey by virtue of his state sentence of imprisonment. It is true that once a person commences a sentence of incarceration the sentencing jurisdiction has the right to exercise control; however, this right only lasts "until the end of his term and his discharge . . . ." Ponzi v. Fessenden, 258 U.S. 254, 261, 66 L. Ed. 607, 42 S. Ct. 309 (1922). Thus, New Jersey's exclusive jurisdiction ceased when his sentence of imprisonment was suspended, he was placed in ISP, and the superior court took control over defendant. At that time, defendant's position was similar to a person out on parole or probation.
See, e.g., Cuddy v. United States, 339 F.2d 172 (9th Cir. 1964) (federal authorities did not violate principles of comity by seizing defendant out on parole to complete his federal sentence).
In any event, the superior court, through the director of ISP, has agreed to surrender defendant to federal custody. Since the principle of exclusive jurisdiction is based on interests of comity, acceptance of jurisdiction will not interfere with the state's interests.
Defendant also argues that I have no jurisdiction since the time to modify his sentence has run. Fed. R. Crim. P. 35. See also United States v. Addonizio, 442 U.S. 178, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979). This argument also lacks merit.
The government is seeking enforcement not modification of defendant's sentence of imprisonment. The government has concluded that defendant's time in ISP should not count against his federal sentence. After making this determination, the government could have ordered defendant to begin serving his sentence and defendant's only recourse would have been to file a petition for habeas corpus relief. See, e.g., Shaw v. Smith, 680 F.2d 1104 (5th Cir. 1982). Instead, the government has requested a judicial determination that its decision does not violate defendant's rights before it orders defendant to complete his sentence. The change in the order of presentation of the dispute does not affect my jurisdiction. Moreover, if it did, defendant would be the one harmed by having to challenge the government's action from prison. See also United States v. Liddy, 166 U.S. App. D.C. 289, 510 F.2d 669, 671 n.6 (D.C. Cir. 1974) (en banc) ...