On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Petrella, Baime and Villanueva. The opinion of the court was delivered by Baime, J.A.D.
Defendant appeals from the Law Division's denial of gap time credits against a sentence imposed on a violation of probation. The offense for which defendant was sentenced on the violation of probation occurred prior to the imposition of sentence on another violation of probation. Defendant thus contends that he is entitled to gap time credits for the interval between the resentencing on the first violation of probation and the completion of that sentence. Although the issue is not free from doubt, we agree and remand for a determination of gap time credits.
The chronology of events is extremely confusing. In order to simplify the issue presented, we do not discuss extraneous facts pertaining to intervening indictments, convictions and sentences. Instead, we focus upon the interplay between two crimes for which defendant was convicted and sentenced, one in Essex County and the other in Bergen County.
On April 1, 1986, defendant entered a retraxit plea of guilty to an Essex County indictment charging him with possession of cocaine with intent to distribute (N.J.S.A. 24:21-10a) (now N.J.S.A. 2C:35-5a(1)). The crime occurred on August 14, 1985. On June 18, 1986, defendant was sentenced to two years probation.
On July 25, 1989, defendant entered a retraxit plea of guilty to a Bergen County indictment charging him with possession of cocaine
with intent to distribute (N.J.S.A. 2C:35-5a(1)). The crime occurred on January 30, 1989. On September 8, 1989, defendant was sentenced to five years probation.
On November 30, 1989, defendant was formally charged with a violation of probation on the Bergen County conviction for failure to report and pay the penalties and fees assessed. Defendant was later charged with violating probation on the Essex County conviction. He appeared for resentencing on the Essex County case on April 5, 1990 and was sentenced to four years in prison. Defendant completed this sentence on February 28, 1992, and was transferred to the Bergen County jail because of the detainer that had been filed on the Bergen County violation of probation. On March 13, 1992, defendant was sentenced to four years on the Bergen County conviction.
At issue is whether defendant is entitled to gap time credits for the interval between the resentencing on the Essex County conviction, which occurred on April 5, 1990, and the completion of that sentence, which occurred on February 28, 1992.*fn1 The gap time credit statute, N.J.S.A. 2C:44-5b(2), provides:
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:
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[.]
Defendant contends that he is entitled to gap time credit because the "offense" for which he was convicted in Bergen County occurred before the sentence of imprisonment imposed on the Essex County violation of probation. The State asserts that ...