On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 00-03-0227-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2007
Before Judges Coburn and Chambers.
Since these related appeals arise out of a one indictment,*fn1 we have consolidated them for purposes of this opinion.
The first seven counts of the indictment, which was returned on March 14, 2000, charged defendant with offenses that occurred on August 24 and 26, 1999, and the remaining counts concerned offenses that occurred on September 2, 1999. Defendant was arrested on September 2, 1999, for the offenses committed on that date, and bail was set at $200,000. Defendant was unable to make bail.
Subsequently, the police identified defendant as a suspect on the earlier set of offenses. Although defendant was never arrested on those offenses, they were included in the indictment. The bail was not increased, and defendant remained incarcerated pending trial. At defendant's request, the judge severed the first seven counts, and a trial before a jury ensued on the remaining counts, 8 through 15. A jury found defendant guilty on all of those counts, and on March 1, 2002, the judge imposed an aggregate prison sentence of sixty years with thirty years of parole ineligibility. Pursuant to R. 3:21-8, the judge gave defendant credit for the 912 days he had spent in custody from September 2, 1999 through March 1, 2002.
On June 24, 2005, defendant entered into a negotiated plea agreement with the State regarding the offenses that occurred in August 1999. On June 24, 2005, the judge imposed an aggregate concurrent prison sentence on counts 1 and 3 of seven years with the parole ineligibility term required by the No Early Release Act. Neither jail nor gap time credits were awarded to defendant on this sentence.
In his appeal from the judgment of conviction on the jury verdict, defendant contends that the judge failed to adequately define "knowingly" in his instructions on the charges involving that mental state. He also contends that the judge erred in imposing sentence. Citing N.J.S.A. 2C:43-7(a)(2) and (b), the State properly concedes that the maximum period of parole ineligibility in this case was not thirty years, the term imposed by the judge, but twenty-five years. The State also properly concedes that State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006), require reconsideration by the trial judge of the maximum sentences imposed on each count.
Therefore, counts eight through fifteen are remanded for resentencing. However, defendant's arguments with respect to the charge on "knowingly" are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). See State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999).
Therefore, the jury's verdict will remain, and the case is remanded for re-sentencing.
In his appeal from the sentences subsequently imposed on the August 1999 offenses, defendant contends that he should have been awarded 912 days of jail credits. The State opposes that claim but avers that defendant is entitled to gap times credits on those sentences for the period from the date of his first sentence, March 1, 2002, to the date of his sentencing on these offenses, June 24, 2005.
The State is clearly correct with respect to its position on gap time. N.J.S.A. 2C:44-5(b)(2); State v. Carreker, 172 N.J. 100, 105 (2002); Booker v. New Jersey State Parole Bd., 136 N.J. 257 (1994).
The State is also correct on the jail credit issue. Jail credits are awarded pursuant to R. 3:21-8, and they only apply "to confinement directly attributable to the particular offense giving rise to the initial incarceration." In re ...