Submitted: January 7, 1998
On appeal from the New Jersey State Parole Board.
Before Judges Muir, Jr, Kestin and Steinberg.
The opinion of the court was delivered by: Steinberg, J.s.c. (temporarily assigned).
This case of first impression requires us to consider the concept of aggregation of multiple sentences, and the effect of a previously aggregated sentence upon a new sentence imposed after a reversed conviction.
Rudolph Curry a/k/a Rumiejah Ukawabutu (defendant) appeals the calculation of his parole eligibility on his sentence for aggravated manslaughter. We agree with defendant that the calculation was incorrect and remand to the Parole Board for re-calculation.
Defendant was first sentenced under Camden County Indictment 89-8-2082 to ten years of imprisonment, with three years and four months of parole ineligibility. *fn1 Subsequently, he was found guilty in Atlantic County Indictment 89-10-2874-B of murder and other related offenses. He was sentenced on December 19, 1990, to life in prison with thirty years of parole ineligibility, on the murder charge, to run consecutively to his prior sentence. Concurrent sentences were imposed on the related offenses.
On February 23, 1995, we reversed the murder conviction and remanded for a new trial. On May 1, 1996, defendant entered a plea of guilty to an amended charge of aggravated manslaughter and was sentenced, on June 7, 1996, to fifteen years in prison with five years of parole ineligibility.
After defendant, upon original sentencing, was given the appropriate jail credits for Indictment 89-8-2082, the Parole Board determined that his period of parole ineligibility would expire on October 5, 1992. As a result, he began serving the thirty-year period of parole ineligibility under Indictment 89-10-2874, as aggregated, on that date.
Defendant was never paroled on Indictment 89-8-2082 and his sentence expired on December 20, 1995, approximately eight months after his conviction for murder on Indictment 89-10-2874 had been reversed.
After defendant was sentenced for aggravated manslaughter on June 7, 1996, as a result of the plea agreement, the Parole Board did not give him credit towards the five-year parole ineligibility imposed for the period of time from October 5, 1992 through February 23, 1995, a total of two years, four months and eighteen days. This was the span of time from the expiration of the period of parole ineligibility on Camden County Indictment 89-8-2082 through the date his conviction for murder on Atlantic County Indictment 89-10-2874 was reversed.
As a result of the initial aggregation of defendant's sentences when they were initially imposed, he received credit against his parole ineligibility period of thirty years for the period of time of October 5, 1992, through February 23, 1995. Defendant should not lose that credit now. He is entitled to that credit as a result of his aggregated sentence, since he had obtained the benefit of it when his conviction for murder was reversed.
In support of its position, the Parole Board argues that the June 7, 1996 judgment of conviction for aggravated manslaughter was a new judgment of conviction rather than a resentencing or an amended judgment of conviction.
We recognize that we are to give due deference to the determination of an administrative agency and are constrained to uphold that determination in the absence of a showing that it is arbitrary, capricious or violative of expressed or implicit legislative policies. Campbell v. Dept. of Civil Service, 39 N.J. 445, 462 (1963); Barone v. Dept. of Human Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
However, giving due deference to the determination of the Parole Board, we nevertheless conclude that it incorrectly calculated defendant's period of parole ineligibility by ignoring the credit he earned on the reversed conviction and treating it as if it never existed. If defendant loses the credit, he ...