Before Judges Petrella*fn1, Steinberg and Alley.
J. Michael Blake, Assistant Deputy Public Defender, argued the cause
for appellant (Ivelisse Torres, Public Defender, attorney; Mr. Blake, of
counsel and on the brief).
Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for
respondent (John J. Farmer, Jr., Attorney General, attorney; Michael J.
Haas, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey State Parole Board.
This appeal implicates the interplay of an award of gap-time credit pursuant to N.J.S.A. 2C:44-5(b)(2) and the eighty-five percent period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). David Meyer is currently serving a twelve-year sentence of incarceration imposed as a result of his conviction for first-degree robbery.*fn2 Because Meyer's conviction for first-degree robbery was considered to be a violent crime for purposes of NERA,*fn3 the judge also directed that he serve eighty-five percent of the sentence without parole. In addition, the judge awarded Meyer 322 days of gap-time credit. The New Jersey State Parole Board (Board) denied his application to apply the gap-time credit to reduce the eighty-five percent parole ineligibility term. Meyer appeals that determination.*fn4
On this appeal, Meyer contends that the Board's refusal to apply the gap-time credit to the period of parole ineligibility mandated by NERA renders the credit meaningless. He asserts that this is in violation of the statute and is also inconsistent with Booker v. New Jersey State Parole Board, 136 N.J. 257 (1994). We reject those contentions.
The statutory requirement for gap-time credit is found in N.J.S.A. 2C:44-5(b)(2), which provides as follows:
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 term 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.
The statute governs sentencing at different times for multiple offenses and
requires that a defendant who has been sentenced to imprisonment and is subsequently sentenced to another term for an offense committed prior to the imposition of the former sentence (other than an offense committed while in custody) be "credited" at the time of the second sentence for so much of the term of imprisonment as the defendant has served on the prior sentence. [Booker, supra, 136 N.J. at 259.]
The term "gap-time credit" is used because the credit applies to the gap between the sentences. Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). It is not to be confused with the credit awarded pursuant to R. 3:21-8, commonly referred to as jail credit, which is awarded for any time served in custody in jail or in a state hospital between arrests and the imposition of sentence. Ibid.
While at first blush, the gap-time statute appears relatively simple and straightforward, its application is not as simple and straightforward as what might first appear. Our Supreme Court noted the gap-time statute's internal inconsistencies, as well as the substantial difficulties that have been encountered in its application. Booker, supra, 136 N.J. at 267. The statute has been referred to as "a judicial nightmare." State v. Guamam, 271 N.J. Super. 130, 135 (App. Div. 1994). Indeed, we have also referred to gap-time credit as "a riddle wrapped in a mystery inside an enigma." State v. Edwards, 263 N.J. Super. 256, 262 (App. Div. ...