On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-05-0477-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant was indicted under Passaic County Indictment No. 01-05-0477 for first-degree murder, N.J.S.A. 2C:11-3a(1),(2) and other offenses. On June 10, 2005, a plea agreement was struck, by which the murder charge would be downgraded to second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), to which defendant would plead guilty in exchange for a recommended sentence of five years imprisonment subject to an 85% parole disqualifier and three years parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served concurrently with the sentence he was then serving, and the State would move for dismissal of the remaining counts of Indictment No. 01-05-0477, as well as a separate indictment charging defendant with second-degree robbery.
At the time of the plea proceeding on June 10, 2005, defendant was serving a State prison sentence that was imposed on April 5, 2001. The homicide to which defendant was pleading guilty occurred on February 24, 2001. As a result, defendant was entitled to gap-time credit from the date of the prior sentence to the date of this sentence. See N.J.S.A. 2C:44-5b(2).
The plea agreement contemplated that in order to accommodate members of the victim's family sentencing would be held on September 9, 2005. At the plea proceeding, the defense acknowledged the agreement regarding the sentencing date, but defense counsel advised the court that "I am going to argue that his credit should begin today because we are ready to be sentenced today." Judge Marmo expressed his belief that jail credit could not be given for time during which a defendant is serving a prison sentence, and that only gap-time credit could be awarded. Nevertheless, the judge expressed his willingness to hear any arguments at the time of sentencing in that regard.
At the plea hearing Judge Marmo carefully explained to defendant that he would receive only gap-time credit, which would reduce the overall length of the five-year sentence, but would not reduce the minimum mandatory portion of the sentence under NERA. Defendant acknowledged his understanding. Defendant pled guilty to manslaughter and provided an adequate factual basis. The judge accepted the plea.
The sentencing proceeding occurred on September 16, 2005. At the outset of the proceeding, defense counsel requested sentencing in accordance with the plea agreement, which he characterized as "very, very fair." The defense did not argue that the judge should "undercut" the recommended sentence in the plea agreement and sentence defendant to less than five years as though he had committed a crime of the third-degree. See N.J.S.A. 2C:44-1f(2) (authorizing sentence for second-degree crime within the third-degree range if "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" such a sentence); State v. Megargel, 143 N.J. 484 (1996).
At the sentencing proceeding, defense counsel did not make the argument he had forecast at the time of the plea that defendant was entitled to straight jail credit from the date of the plea to the date of sentencing. However, defendant personally made the argument. The judge found the argument baseless and rejected it. The judge also reminded defendant that he had clearly explained to him at the time of the plea that he would receive only gap-time credit.
The judge imposed a sentence of five years imprisonment subject to an 85% parole disqualifier and three years parole supervision, to be served concurrently with the sentence defendant was serving. On the prosecutor's motion, the judge dismissed the remaining counts of Indictment No. 01-05-0477 as well as the separate robbery indictment. The judge awarded 1,625 days of gap-time credit, which covers the time between the two sentences.
Defendant appealed, and the appeal was initially listed on our Excessive Sentence Oral Argument calendar, see R. 2:9-11, but was removed at the request of defense counsel to the plenary calendar with full briefing. Defendant argues:
THE DEFENDANT'S PRESENT SENTENCE MAKES HIS GAP-TIME CREDITS REQUIRED BY N.J.S.A. 2C:44-5B(2) MEANINGLESS, IN VIOLATION OF BOTH THE STATUTE AND THE SUPREME COURT'S DECISION IN ...