On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Bilder, Baime and Wallace. Baime, J.A.D.
[263 NJSuper Page 257] This appeal requires us to revisit the arcane subject of gaptime credits under N.J.S.A. 2C:44-5b(2). This statute entitles a defendant to credit for time served under a prior custodial term where the previous sentence was imposed after he had committed the crime for which he is currently being sentenced. At
issue is whether gap-time credits are to include the time period the defendant spent in jail pending imposition of the prior sentence. We hold that statutory gap-time credits are to include only the period of incarceration between imposition of the first and second sentence. The defendant should not be given gap-time credit against the subsequent concurrent sentence for the period of time spent in jail pending imposition of the earlier sentence.
The facts and chronology of events are extremely confusing and involve a plethora of charges stemming from a variety of crimes committed on different dates. To avoid distractions, we omit references to crimes and indictments which were ultimately dismissed. On May 17, 1988, defendant was arrested for armed robbery (N.J.S.A. 2C:15-1) and theft by deception (N.J.S.A. 2C:20-4). Defendant posted bail and was released on December 1, 1988. On October 7, 1989, defendant was again arrested, this time for aggravated assault on a police officer. (N.J.S.A. 2C:12-1b(5)). He was released on bail on this charge on February 6, 1990. All of these offenses were committed on different dates in different places in Middlesex County. Three separate indictments were ultimately returned on these charges.
On March 12, 1990, defendant committed theft by deception (N.J.S.A. 2C:20-4) and forgery (N.J.S.A. 2C:21-1a(3)) in Somerset County. Defendant was not immediately apprehended for those offenses because the victim did not report the incidents to the police. However, defendant's bail was revoked on the Middlesex County charges for unrelated reasons and he was returned to custody on April 20, 1990. Several months later, the victim of the Somerset County theft and forgery identified defendant as the culprit. On October 12, 1990, defendant was transported to Somerset County where he was arrested and released on his own recognizance that same day. Defendant was remanded to the Middlesex County jail where he remained until April 5, 1991.
On January 7, 1991, defendant was sentenced to an aggregate term of five years with a three year parole disqualifier on the Middlesex County indictments. Pursuant to R. 3:21-8, he was given full jail credits for the time period he was incarcerated while awaiting Disposition of the Middlesex County charges. On April 5, 1991, defendant was sentenced on the Somerset County charges. After merging the offenses, the court sentenced defendant to a custodial term of five years with the stipulation that he serve 18 months without parole eligibility. The Judge ordered that the sentence be served concurrently with the term imposed on the Middlesex County offenses. Defendant was given gap-time credits for the period of time he spent in custody between imposition of the Middlesex County sentence on January 7, 1991, and the Somerset County sentence on April 5, 1991. Defendant's subsequent motion to add, as gap-time credits, the period he spent in custody before Disposition of the Middlesex County charges was denied.
Defendant appeals, contending that he should have received credit for the period from April 20, 1990, when his bail was revoked on the Middlesex County charges, through April 5, 1991, when the Somerset County sentence was imposed. Although this custodial period was attributable to the Middlesex County charges, defendant claims that it should have been included as gap-time credits in order to make the sentences "truly concurrent." We disagree.
We begin our analysis with the operative language of the applicable sections. N.J.S.A. 2C:44-5b(2) provides in pertinent 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 ...