Before Judges Stern and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 15, 1999 *fn1
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Defendant, Enrique Dela Rosa, appeals from the denial of his request for an award of gap-time credits pursuant to N.J.S.A. 2C:44-5(b)(2) for the three months he spent in the Bergen County jail awaiting imposition of his New Jersey sentence. We reverse.
A Bergen County Grand Jury returned Indictment No. S-1407-91 against defendant charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The offense that led to that indictment was committed on August 11, 1991.
Thereafter, another Bergen County Grand Jury returned Indictment No. S-500-92, again charging defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The offense that led to that indictment took place on November 28, 1991.
Defendant failed to appear for trial and bench warrants were issued for his arrest. While still a fugitive, defendant was arrested on July 10, 1996, in New York for distribution of a controlled dangerous substance. He entered a plea of guilty and was sentenced on October 10, 1996, to two and one-half to five years in state prison. While defendant was serving his New York sentence, New Jersey lodged a detainer against him regarding the outstanding indictments in Bergen County. He was transferred to the Bergen County jail on April 27, 1998, pursuant to the Interstate Agreement on Detainers Act, N.J.S.A. 2A:159A-1 to -15, (the I.A.D.).
On May 28, 1998, defendant entered guilty pleas on both Bergen County indictments pursuant to a plea agreement. The State indicated it would recommend to the judge that defendant receive concurrent three-year sentences on both indictments and that defendant's New Jersey sentences should also run concurrent to defendant's New York sentence. On August 26, 1998, defendant was sentenced in accordance with the agreement. At sentencing, defendant's request for an award of jail credits was denied. Defendant's argument as to what credits he claimed was not clear and it appears as if the judge considered the request to be one for an award of jail credits pursuant to R. 3:21-8. Defendant's entitlement to an award of gap-time credits pursuant to N.J.S.A. 2C:44-5(b)(2) was not specifically discussed at the sentencing hearing.
On this appeal, defendant asks that we decline to follow State v. Hugley, 198 N.J. Super. 152 (App. Div. 1985) and award him gap- time credits, as opposed to jail credits pursuant to R. 3:21-8, for the period of time he was in New Jersey pursuant to the I.A.D.
We agree that defendant was not entitled to credit pursuant to R. 3:21-8 for the time he was incarcerated in New Jersey after being returned pursuant to the I.A.D. R. 3:21-8 only applies to confinement or detention that is attributable to the offense that leads to the sentence. State v. Black, 153 N.J. 438, 456 (1998); State v. Hill, 208 N.J. Super. 492, 495 (App. Div.), certif. denied, 104 N.J. 412 (1986); State v. Allen, 155 N.J. Super. 582, 585 (App. Div.), certif. denied, 77 N.J. 472 (1978). Indeed, the I.A.D. expressly provides that a defendant's sentence in the foreign jurisdiction continues to run while he is temporarily in this State awaiting disposition of an untried indictment pursuant to the I.A.D. N.J.S.A. 2A:159A-5(f). Here, defendant's detention in New Jersey was not attributable to the two New Jersey indictments. It was attributable to the sentence he was then serving in New York. Accordingly, he was not entitled to credits under R. 3:21-8. State v. Council, 137 N.J. Super. 306, 309 (App. Div. 1975).
We next consider defendant's entitlement to gap-time credit pursuant to N.J.S.A. 2C:44-5(b)(2), which governs sentencing at different times for multiple offenses. The statute provides, in pertinent part, as follows:
b. Sentences of imprisonment imposed at different times.
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 ...