On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Brody, Long and Scalera. The opinion of the court was delivered by Brody, J.A.D.
We are again called upon to interpret the meaning of N.J.S.A. 2C:44-5b(2) (the statute) because of the need for clarification that we noted in State v. Alevras, 213 N.J. Super. 331, 339, n. 2 (App.Div.1986). The statute entitles a defendant being sentenced to imprisonment to credit for time served under an unrelated previous custodial sentence where the previous sentence was imposed after he had committed the crime for which he is currently being sentenced.
Pursuant to a plea agreement, defendant was sentenced to concurrent terms of imprisonment aggregating five years for 11 thefts and attempted thefts by deception. N.J.S.A. 2C:20-4. Defendant committed the crimes when he passed and attempted to pass bad checks. Pursuant to the plea agreement, the trial judge dismissed several unrelated municipal court complaints and ordered that the terms being imposed for the check offenses be served concurrently but not coterminously with a
previous six-month term of imprisonment for shoplifting that had been imposed in another county.*fn1 The judge gave defendant two days credit for the jail time attributable solely to the check offenses but expressly denied him credit for the five months that he had served by then of the previous six-month term. All of the bad check thefts had been committed prior to imposition of the six-month term for shoplifting. Defendant contends that when he was sentenced for the bad check crimes, he should have been given credit under the statute for the five months that he had served for the shoplifting.
N.J.S.A. 2C:44-5b(2) provides in relevant part:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody;
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served; . . .
N.J.S.A. 2C:44-5e provides:
(1) When terms of imprisonment run concurrently, the shorter terms merge in and are satisfied by discharge of the longest term.
(2) When terms of imprisonment run consecutively, the terms are added to arrive at an aggregate term to be served equal to the sum of all terms.
These statutes require a judge sentencing a defendant to imprisonment to do the following: (1) determine whether the defendant had previously been sentenced to imprisonment for any other offenses; if so, (2) determine whether the defendant had committed any offense for which he is being sentenced, prior to imposition of the previous ...