On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 93-05-0373.
The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2006
Before Judges Stern, A. A. Rodríguez and Collester.
One of the issues presented in this appeal is whether defendant, James Hemphill, is entitled to receive credit for time spent in custody, on this charge, in the United Kingdom. We hold that defendant is entitled to such credit for this period.
In August 1994, defendant entered a negotiated plea of guilty to second degree endangering the welfare of a child (a thirteen-year-old girl), N.J.S.A. 2C:24-4a. He admitted at the plea hearing that for a two-year period he sexually abused the girl by touching her breasts, buttocks and vagina, while he masturbated. The State agreed to recommend that defendant be sentenced as a third degree offender and to dismiss related charges. Defendant remained on bail pending sentence. He then fled to Scotland prior to sentence. According to the State, he lived there under an assumed name for almost a decade. Eventually, defendant was arrested in Scotland on a warrant stemming from this charge.
Defendant alleges that he was held at the Edinburgh Prison in Scotland for about six months, until he was extradited to New Jersey. Then he was lodged in the Ocean County jail pending sentence.
In anticipation of sentence, Mark Frank, PhD, a clinical psychologist, examined defendant at the request of the Adult Diagnostic and Treatment Center (ADTC). Dr. Frank opined that defendant's conduct was compulsive and repetitive, therefore, it came within the purview of N.J.S.A. 2C:47-3. Defendant challenged the ADTC's conclusion and presented the report of his own expert, John J. Verdon, Jr., M.D., a psychiatrist. Dr. Verdon opined that defendant's conduct was not compulsive. Following a Horne*fn1 hearing, the judge concluded that defendant's conduct required that he be sentenced as a sex offender pursuant to N.J.S.A. 2C:47-3. The judge imposed a five-year term to be served at the ADTC and ordered defendant to comply with Megan's Law, N.J.S.A. 2C:7-1 to -19. The judge gave defendant a 197-day jail credit for time spent in custody in the Ocean County jail. Defendant asked for credit for time spent in custody in Scotland. The State objected. Without addressing the issue, the judge denied credits for custodial time spent in Scotland.
On appeal, defendant contends that:
SINCE THE STATE FAILED TO MEET ITS BURDEN OF PROVING THAT DEFENDANT WAS A REPETITIVE AND COMPULSIVE SEX OFFENDER, DEFENDANT'S SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR ...