On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication March 21, 1997. As Corrected March 26, 1997.
Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
This is an appeal by the State of New Jersey from the January 16, 1996 resentencing, on remand from this court, of defendant, Carmen A. Mercadante, Jr. The appeal concerns only certain aspects of the Law Division Judge's grant of jail credits and his purported running of the sentence concurrent to a federal sentence that had already been fully served at the time of defendant's original sentence on the present offense.
On February 16, 1993, defendant and his co-defendant were indicted for first degree possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1)) (count one), and with possession of cocaine (N.J.S.A. 2C:35-10a(1)) (count two). Their motion to suppress evidence was denied and they were tried before a jury. On February 18, 1994, both were found guilty of second degree possession with intent to distribute and third degree possession.
Pursuant to N.J.S.A. 2C:43-6f, the State moved for the imposition of an extended term upon defendant, but its motion was denied at sentencing on October 28, 1994. The two counts were merged, and defendant was sentenced to a five year custodial term with appropriate penalties and fees. The State moved for a stay of the court's imposition of the five year sentence. This was denied by the sentencing Judge. The State appealed the denial of its application for an extended term, and defendant cross-appealed the denial of his suppression motion.
The initial Judgment of Conviction set forth that defendant was to receive 184 days of jail credit for the period from April 26, 1994, to November 4, 1994. The Judge amended this judgment on December 2, 1994, to provide that defendant receive an additional 77 days of jail credit, for the period from February 9, 1994, to November 4, 1994, for a total credit of 261 days. On June 21, 1995, defendant was paroled by the State Parole Board.
On June 27, 1995, we affirmed defendant's conviction, and held that the trial Judge erred in denying the State's motion for the imposition of an extended term. We noted that we "would affirm the most lenient extended prison term available under N.J.S.A. 2C:43-6f," and remanded for resentencing. On October 23, 1995, the New Jersey Supreme Court denied defendant's petition for certification.
On December 7, 1995, defendant appeared for resentencing, but could not be sentenced as his presentence report was not adequate. On January 16, 1996, defendant was sentenced to a ten year term with a three year, four month period of parole eligibility, to run concurrently with defendant's already expired federal sentence. The Judgment of Conviction provided:
the defendant is entitled to 527 days of jail credit for time served before the original sentence was imposed and 438 days of credit for time served between the date of sentence and this resentencing hearing.
The Judge issued a written opinion concerning the credits he allowed. The following is from his opinion:
In 1991, the defendant, Carmen Mercadante, was convicted of distributing 20 grams of cocaine in the Federal District Court for the Middle District of Pennsylvania. He was sentenced to ten months in federal prison followed by a three year term of probation. On October 17, 1992, while serving his three year federal probationary term, the defendant was arrested for the State offense for which he is being resentenced today. That night, the defendant posted bail. He immediately turned himself in to federal authorities. Because his New Jersey arrest was a violation of his federal probation, the defendant was sentenced to 18 months in federal prison on October 26, 1992.
The defendant was indicted for this offense on February 16, 1993. This indictment was soon forwarded to federal authorities. On March 1, 1993, the defendant officially invoked the AOD to expedite the Disposition of his pending New Jersey case. On May 26, 1993, the defendant had his first appearance in New Jersey. After revoking the defendant's bail, the sitting Judge informed the defendant, who had expressed his desire to dispose of the case as soon as possible, that trial should occur within 60 days. The defendant was also informed that he would "get jail credit if convicted[.] If it takes three months, you get three months jail credit." Finally, the Judge noted that because "we would like to expedite this" and that "maybe" the parties "could work out some plea", like a sentence "concurrent to the sentence that he's now serving." On November 4, 1993, the defendant therefore waived his right to a 180 day Disposition under the AOD because he undoubtedly believed that he would be awarded jail credit for the time he spent in the ...