Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
This appeal presents novel issues concerning the entitlement to jail credits. It is complicated somewhat by an absence of factual information, brought about in part by the age of the case and the unavailability of certain records.
The relevant procedural history available from the record before us is as follows. Defendant John De Rosa was arrested on murder and weapons charges on October 16, 1980. The record does not indicate if his incarceration following his arrest was attributable to a denial of bail or an inability to meet it. On November 3, 1980, while incarcerated, he pled guilty to a fourth degree assault charge and a third degree receiving stolen property charge. He was sentenced on these charges on November 18, 1980 to an aggregate term of eighteen months. The presentence report states he received jail credits for that sentence from the date of his plea on November 3, 1980 to the date of sentence on November 18, 1980, in addition to a twelve-day credit from his arrest on one or both of those charges in June 1980.
On April 16, 1981, defendant was convicted on the murder and weapons charges. On May 27, 1981, he received an aggregate sentence of forty years with a twenty-year period of parole ineligibility. While serving that sentence defendant pled guilty in June 1981 to additional charges of criminal mischief and possession of a weapon. He received a six and one-half-year sentence that was to run concurrently with the sentences for murder and weapons possession. In August 1982 defendant pled guilty to one or more burglary charges and received a total sentence of ten years. That term was also made to run concurrently with the murder/weapons-possession sentence.
On May 23, 1983, defendant's murder and weapons convictions were reversed by this court. The State's petition for certification was denied on September 24, 1984. 97 N.J. 696 (1984). On April 1, 1986, he was paroled from the ten-year burglary sentence and we assume he was by then paroled from the earlier six and one-half-year sentence for criminal mischief and possession of a weapon. He remained incarcerated on the murder charge that was eventually retried in January 1987. Defendant asserts, and the State does not contest, that the delay in initiating the second murder trial was through no fault of the defendant. That trial again resulted in a conviction for murder and on February 26, 1987, defendant was sentenced to a forty-year prison term with a twenty-year period of parole disqualification. It is that sentence he is now serving and to which he seeks the application of jail credits over and above those he has received to date.
It is not necessary to recount the details of defendant's attempts over the years through direct appeal, post-conviction relief petitions and other applications to obtain the jail credits to which he claims entitlement. At present the dispute has resolved itself into two discrete periods of time.
Defendant seeks jail credits for that period of time prior to the first murder trial when he was serving an eighteen-month sentence on charges of assault and receiving stolen property. He was also incarcerated at that time on the murder charge, either because no bail had been set or, more likely, because he was unable to meet bail. In any event, we are satisfied that jail credits pursuant to R. 3:21-8 are not available to defendant for the period of time starting November 18, 1980, and while he was serving the sentence for the third and fourth degree offenses prior to his conviction for murder and weapons possession. That rule requires that a defendant receive credit "for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence" but the rule only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration. State v. Black, 153 N.J. 438 (1998); In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div. 1981).
Under analogous circumstances it has been held that the primary basis for incarceration is the actual sentence being served by a defendant pursuant to a conviction, not the detainer or pending charges lodged against him. State v. Council, 137 N.J. Super. 306 (App. Div. 1975); compare State v. Hill, 208 N.J. Super. 492 (App. Div.), certif. denied, 104 N.J. 412 (1986) (credit not allowable on detainer charge when defendant incarcerated awaiting disposition of other unrelated charges.) Defendant's initial incarceration was based on the murder charge. Once defendant was sentenced on the third and fourth degree offenses it was those convictions that constituted his primary basis for incarceration. That is to say, his confinement was not most directly attributable to the murder charge but rather to his convictions on the third and fourth degree offenses.
Although defendant is not entitled to jail credits from November 1980 to April 1981, we believe that he is entitled to gap time under the present circumstances. N.J.S.A. 2C:44-5b states, in part:
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 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 time served in imprisonment on the ...