August 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEYANO SAPP, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 BOOKER V. STATE PAROLE BOARD, 136 N.J. 257 (1994).
THE JUDGE ERRED IN FAILING TO GIVE DEFENDANT DISCRETIONARY CREDIT FOR THE TIME BETWEEN HIS PLEA AND THE IMPOSITION OF SENTENCE (Partially Raised Below).
We reject these arguments and affirm.
To the extent that defendant argues in Point I that gap-time credit should be applied against his NERA parole disqualifier, the argument is unfounded for two reasons. First, the issue is not properly before us. The State Parole Board, not the trial court, makes parole decisions. Included in those decisions is the application of jail and gap-time credits. Second, the law is settled that gap-time credits do not apply to a NERA parole disqualifier. Meyer v. New Jersey State Parole Bd., 345 N.J. Super. 424 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002).
In Meyer, we suggested a potential remedy in situations where, due to improper manipulation by the prosecutor of the timing of prosecutions on separate charges that might result in a potential deprivation of the benefits of gap-time credit, namely "[s]entencing flexibility [which] allows sentencing judges sufficient discretion to make necessary adjustments to protect defendants in the event of prosecutorial delay." Id. at 430. To the extent that defendant in Point I seeks this remedy, we are unpersuaded.
Before the trial court, defendant never requested a sentence of less than five years. The five-year recommendation was the result of a comprehensive plea agreement that included dismissal of other very serious charges and a "bottom of the range" sentence. The prosecutor was apparently induced to make this very lenient offer because of proof problems involving the refusal of a key State's witness, who is defendant's uncle, to testify. Judge Marmo, who had managed the case and was very familiar with the circumstances, deemed the plea agreement extremely lenient. Indeed, a trial was once commenced but aborted. He found the presence of three aggravating factors and no mitigating factors, and was "clearly convinced that the aggravating factors substantially outweigh[ed] the non-existent mitigating factors." Finally, no competent evidence was produced to suggest that the State improperly delayed the prosecution of this case as a device to deprive defendant of potential gap-time benefits. In his appellate brief, defendant makes no such argument. Accordingly, there is no basis in this case for application of the possible "sentencing flexibility" remedy we suggested in Meyer.
Defendant's argument in Point II, that he should have been awarded jail credit instead of gap-time credit for the three months between his plea and sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The cases relied upon by defendant which authorize the discretionary award of jail credits involve situations in which defendants were denied any credit for time served on unrelated charges or while in inpatient treatment programs, and where, based upon general equitable principles, courts are granted discretion to award such credit. That is not the situation here, where defendant continued to accrue gap-time credits during the three-month interval, those credits are statutorily established, and there is no discretion to "convert" them to straight jail credits.
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