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State v. Carreker

May 14, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONNA L. CARREKER, A/K/A LISA GOOD, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal involves the "gap-time credit" provision found at N.J.S.A. 2C:44-5b(2). The provision becomes relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, the defendant is credited at the time of the second sentence for the time of imprisonment served on the prior sentence. The narrow question in this appeal is whether the statute entitles a defendant to gap-time credit for time served on an out-of-state sentence.

On April 6, 1998, Donna L. Carreker sold what appeared to be cocaine to an undercover police officer in Somerville. Actually, the substance was flour. Carreker's presentence report, however, lists "fugitive" as one of her offenses, suggesting that she fled the jurisdiction following the Somerville encounter.

On June 25, 1998, New York authorities sentenced Carreker to an indeterminate term of imprisonment of one-to-three years for third-degree possession of a controlled dangerous substance stemming from a December 1997 arrest in that State. While Carreker was incarcerated in New York, officials in New Jersey lodged a detainer against her on or about October 23, 1998, pursuant to an arrest warrant arising out of the Somerville incident. Carreker filed a request under the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15 (IAD), to resolve the New Jersey charges.

In January 1999, Carreker was indicted in Somerset County for third-degree distribution of an imitation controlled dangerous substance. She was extradited from New York to the Somerset County jail, and reached a plea agreement with the State under which she would serve a four-year term to run concurrent with her New York sentence. Carreker requested gap-time credit for the time served on her New York sentence. The trial court denied the request. In an unpublished decision, the Appellate Division affirmed.

The Supreme Court granted Carreker's petition for certification.

HELD: There is no entitlement to gap-time credit for time served on an out-of-state sentence.

1. Generally, gap-time credit applies when: (1) a defendant has been sentenced previously to a term of imprisonment, (2) he or she is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence. If those elements are established, the defendant must be awarded credit for the time served on the prior sentence when the permissible aggregate length of the term or terms is determined. New Jersey courts have surmised that the statute's purpose is to avoid the manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time. The statute was intended to counteract any dilatory tactics of prosecutors in pursuing a conviction for another offense. The statute is derived largely from section 7.06(2)(b) of the Model Penal Code (MPC). The MPC's earlier 1954 draft of the section had limited its scope to sentences imposed solely within an individual sentencing state. The drafters ultimately deleted the in-state limitation in their final 1961 proposal, which was enacted in New Jersey in 1978. (Pp. 4-5)

2. There is a conflict of authority within the Superior Court, Appellate Division on whether the statute requires gaptime credit for time served on an out-of-state sentence. In State v. Hugley, 198 N.J. Super. 152 (App. Div. 1985), the Appellate Division held that defendant was not entitled to credit for the time served on his Florida sentence. The Hugley court explained that because the defendant escaped from New Jersey to Florida, the prosecutor was unable to proceed on the indictment, eliminating the possibility of unjust delay on the part of the State. In State v. Dela Rosa, 327 N.J. Super. 295 (App. Div.), certif.. denied, The opinion of the court was delivered by: Verniero, J.

Argued January 14, 2002

This appeal involves the "gap-time credit" provision found at N.J.S.A. 2C:44-5b(2). Generally, that provision becomes relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, "the defendant shall be `credited' at the time of the second sentence for so much of the term of imprisonment as has been served on the prior sentence." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). The narrow question before us is whether the statute entitles defendant to gap-time credit for time served on her out-of-state sentence. The Appellate Division concluded that the answer to that question is no. We agree and affirm.

I.

On April 6, 1998, defendant sold what appeared to be cocaine to an undercover police officer in Somerville (actually, the substance was flour). The record does not reveal defendant's whereabouts in the immediate aftermath of that transaction. Defendant's presentence report, however, lists "Fugitive" as one of the offenses committed by her, suggesting that defendant fled the jurisdiction following the Somerville encounter.

On June 25, 1998, New York authorities sentenced defendant to an indeterminate term of imprisonment of one-to-three years for third-degree possession of a controlled dangerous substance stemming from a December 1997 arrest in that state. While defendant was incarcerated at New York's Albion Correctional Facility (Albion), officials in New Jersey lodged a detainer against her on or about October 23, 1998, pursuant to an arrest warrant arising out of the Somerville incident. (The record does not indicate how or when New Jersey authorities learned of defendant's whereabouts.) On December 8, 1998, defendant filed a request under the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15 (IAD), to resolve the New Jersey charges.

In January 1999, defendant was indicted in Somerset County for third-degree distribution of an imitation controlled dangerous substance, in violation of N.J.S.A. 2C:35-11a. On March 9, 1999, she was extradited from Albion to the Somerset County jail. Defendant and the State ultimately reached a plea agreement under which defendant would serve a four-year term to run concurrent with her New York sentence. The trial court sentenced her accordingly on June 11, 1999.

Defendant requested gap-time credit for the time served on her New York sentence. Specifically, she requested a 351-day credit calculated from the date (June 25, 1998) on which she began serving the New York sentence to the date (June 11, 1999) on which she was sentenced in New Jersey. The trial court denied that request. In an unpublished decision, the Appellate Division affirmed. This Court granted defendant's petition for certification. 168 N.J. 290 (2001).

II.

A.

The gap-time statute is codified at N.J.S.A. 2C:44-5b(2) and provides, in relevant part:

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 ...


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