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State v. Johnson

New Jersey Superior Court, Appellate Division


Decided: March 23, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT A. JOHNSON, DEFENDANT-APPELLANT

On appeal from Superior Court of New Jersey, Law Division, Essex County.

Halpern, Ard and Antell.

Per Curiam

[167 NJSuper Page 65]

The issue presented is whether defendant should be credited under R. 3:21-8 for the 61 days he spent in a Nevada jail while resisting extradition to New Jersey for trial on an armed robbery charge. He was denied such credit after being convicted and sentenced to a 10-12 year term for this crime.

R. 3:21-8 provides:

The defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence.

In State v. Beatty , 128 N.J. Super. 488, 491 (App. Div. 1974), we held that the State's public policy expressed in

[167 NJSuper Page 66]

R. 3:21-8 should be liberally construed. We held further that defendant was entitled to credit against his sentence in New Jersey for the time he was confined in a New York penal institution because of a detainer filed by the State of New Jersey. We adhere to that liberal construction in this case because a refusal to do so would chill his constitutional right to contest extradition. See Keyishian v. Bd. of Regents of New York , 385 U.S. 589, 603-604, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967).

To the extent that State v. Sinacore , 151 N.J. Super. 106 (Law Div. 1977), is contrary to the rule expressed in Beatty and herein, it is overruled.

The sentence imposed below is modified to provide for the 61 days credit. In all other respects, the sentence is affirmed.

19790323


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