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State v. D'Alessandro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 30, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL R. D'ALESSANDRO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 80-581-M.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 10, 2007

Before Judges R.B. Coleman and Sapp-Peterson.

Defendant Michael D'Alessandro appeals from a May 2, 2006 order denying 312/315 days of gap time credit for time served prior to his sentence in connection with Morris County Indictment No. 80-581-M. The trial court awarded defendant seventy-one days of gap time credit from the date defendant was sentenced on Union County Indictment No. 771-81-U, October 25, 1985, to the date defendant was sentenced on the Morris County Indictment, January 3, 1986. We affirm.

In denying defendant's motion for additional gap time credit on the Morris County indictment, the trial court concluded that because both offenses occurred prior to defendant's sentencing on the Union County indictment, an award of gap time credit on the Morris County indictment back to the date of his arrest would be the equivalent of awarding defendant "duplicitous gap time credit" to which defendant was not entitled.

Gap time is awarded in accordance with N.J.S.A. 2C:44-5b(2), which provides in relevant part, 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 terms 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[.] [Ibid.]

Gap time refers to the gap between two sentencing events and is awarded whenever a defendant is sentenced at different times for two separate crimes, both of which were committed prior to imposition of the first sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 259 (1994). Where confinement relating to two charges occurs prior to the first sentencing date, gap time is awarded for the time period that defendant actually serves the first sentence. See State v. Ruiz, 355 N.J. Super. 237, 248-49 (Law Div. 2002).

Here the court properly rejected defendant's contention that he was entitled to gap time credit from the date of his arrest, February 22, 1985, to the date of his sentence on the second conviction, January 3, 1986. As the court noted in its order, defendant received jail credit on the Union County indictment from the date of his arrest on February 22, 1985, to the date of his sentence on October 25, 1985. To award gap time credit on the Morris County indictment from February 22, 1985, through the date of his January 3, 1986 sentence would be awarding defendant double gap time credits, contrary to the provisions of the statute. See N.J.S.A. 2C:44-5(b)(2). See State v. Edwards, 263 N.J. Super. 256, 263 (App. Div. 1993) (explaining the difference between jail credits and gap time credits and holding that gap time credits are not available for the period of time a defendant spends in jail awaiting disposition of the first set of charges).

Affirmed.

20070830

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