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State v. Hoang

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TEDD HOANG, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-02238.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2008

Before Judges S. L. Reisner and Gilroy.

On June 17, 2005, defendant was indicted by a Rockland County New York Grand Jury with having committed various sexual offenses against A.B., a minor, including the crime of rape in the second degree. The offenses occurred between April 1, 2005, and May 16, 2005. On October 18, 2005, defendant pled guilty to the charge of rape in the second degree. On December 9, 2005, defendant was sentenced to a term of imprisonment between one to three years, with a conditional release date of December 12, 2007, and a maximum expiration of December 4, 2008.

On December 20, 2005, defendant was indicted by a Bergen County Grand Jury with having committed various sexual offenses against A.B., the same minor victim of the New York crimes. The indictment charged defendant with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) (Counts One, Three, and Five); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Counts Two, Four, and Six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Seven). These offenses occurred on various dates between March 1, 2005, and May 31, 2005.

On January 9, 2006, defendant's counsel requested that defendant's bail be revoked on the New Jersey charges. The request was granted, and a detainer was lodged. On April 11, 2006, defendant appeared in the Superior Court, pursuant to the Interstate Agreement on Detainers Act, N.J.S.A. 2A:159A-1 to -15. On June 5, 2006, defendant pled guilty to Count One of the Bergen County indictment. In exchange for defendant's plea, the State agreed to dismiss the remaining charges and to recommend a sentence in the second-degree range with a maximum exposure of five years, with an 85% parole disqualifier, pursuant to the No Early Release Act*fn1 (NERA), to run concurrent with the sentence defendant was then serving in New York. On September 22, 2006, defendant appeared for sentencing and requested jail credit for the time he was incarcerated between January 9, 2006, the date that his New Jersey bail was revoked, and the date of sentence. The court denied the request, but did grant two days jail credit for time served on May 17, 2005, and May 18, 2005. Defendant was then sentenced to a five-year term of imprisonment, to run concurrent with the sentence defendant was then serving in New York, in accordance with the plea agreement. Defendant appeals from the denial of his request for an additional 256 days of jail credit. We affirm.

On appeal, defendant argues that the trial judge erred by not granting him jail credit for time he was incarcerated from the time when his bail was revoked on the Bergen County charges until the date of sentence. Defendant contends that he is entitled to 256 days of jail credit against the sentence imposed on the Bergen County conviction for time that he was incarcerated in New York, after his bail on the Bergen County charges was revoked, because the Rockland and Bergen County charges are "integrally related" and "[i]f the acts all occurred within one jurisdiction, there would have been one consolidated sentence." Alternatively, defendant asserts that even if the trial court properly denied him jail credit under Rule 3:21-8, the court should, nevertheless, have awarded him jail credit, as a matter of fairness, justice, and fair dealing, citing State v. Grate, 311 N.J. Super. 544, 548 n. 3, 549-50 (Law Div. 1997), aff'd, 311 N.J. Super. 456 (App. Div. 1998).

A "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of the sentence." R. 3:21-8. Jail credit under the rule: is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed. The credit is given for the term served between the date of arrest and the imposition of sentence. When the rule applies, the credit is mandatory. Where the rule does not apply, the credit may nevertheless be awarded based on considerations of fairness, justice and fair dealings. [State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div. 2007) (internal citations omitted).]

"The credit is impermissible if the confinement is due to service of a prior-imposed sentence or another charge." Id. at 71.

We have considered defendant's contentions in light of the record and applicable law. We determine defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venezia in his oral opinion of September 22, 2006. Nevertheless, we add the following comment.

Defendant is not entitled to jail credit pursuant to Rule 3:21-8. State v. Council, 137 N.J. Super. 306, 308-09 (App. Div. 1975). Nor did the judge abuse his discretion in denying defendant jail credit based on considerations of fairness, justice, and fair dealing. Defendant received a favorable plea bargain, including a minimum sentence to a crime, one degree lower than the first-degree crime to which he pled, with the sentence running concurrent to the sentence imposed on the New York conviction. We determine no abuse of discretion in denying defendant an additional reduction in his sentence.

Affirmed.


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