On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal #08-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges Graves and Alvarez.
Defendant, Christopher Carrigan, appeals from the imposition of a 100-day jail sentence, $1506 fine for his seventh conviction of driving while suspended, N.J.S.A. 39:3-40. He also appeals from the refusal of the court to award gap time credit, N.J.S.A. 2C:44-5(b)(2), against the sentence. The appeal is actually from a Law Division trial de novo pursuant to R. 3:23. We affirm.
Defendant incurred a host of motor vehicle charges, including the two on appeal, while in the Borough of Point Pleasant Beach on January 26, 2004. The offenses occurred prior to the multiple motor vehicle charges in at least three other municipal courts which resulted in his multiple consecutive sentences to a total of 495 days in prison, imposed before his Point Pleasant charges were addressed. Defendant engaged in vigorous but fruitless efforts to have the Point Pleasant matters heard while he was incarcerated. Eventually, after a procedurally tortured course of events that need not be detailed here, defendant entered guilty pleas to driving while suspended, refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.4a, and a municipal ordinance violation in the Point Pleasant Municipal Court on February 21, 2006. By that date, defendant had completed service of his state prison term. It is not disputed that the driving while suspended charge arises from a prior conviction of driving while intoxicated, N.J.S.A. 39:4-50 and is therefore subject to enhanced penalties.
On the charge of driving while suspended, by way of enhanced penalty, defendant was sentenced to a fine of $1506 as well as jail time of a total of 100 days pursuant to N.J.S.A. 39:3-40(c) and N.J.S.A. 39:3-40(f)(2). In the municipal court, and subsequent appeal de novo to the Law Division, defendant contended that he should only have been sentenced to ninety days in jail and a $500 fine under subsection (f)(2), and that the additional ten days and $1000 fine imposed under subsection (c) was improper. He continues to maintain that he can only be sentenced under (f)(2), with a resulting reduction to his jail time of ten days, and the resulting reduction to the fine of $1000. Defendant sought an award of gap time credit, which was denied in both the municipal court and the Law Division, and would have effectively nullified his jail sentence.
The gap time statute has been found to apply to the Juvenile Code "'to mitigate the possible manipulation of sentences by prosecutors who might delay a criminal indictment even when an inmate is available for disposition on a New Jersey offense,' and thereby cause the defendant to lose the opportunity for a concurrent sentence." State v. Franklin, 175 N.J. 456, 468-69 (2003) (quoting State v. Carreker, 172 N.J. 100, 113-14 (2002)). An award of gap time credit has been found to be appropriate for time served on municipal court sentences for disorderly persons matters where a defendant is later sentenced on an earlier indictable charge. State v. French, 313 N.J. Super. 457, 466 (Law Div. 1997). The rationale behind that conclusion in French is that both disorderly persons offenses and indictable matters come within the purview of the gap time statute as "offenses." Ibid. The term includes not only indictable "crimes" but disorderly persons matters as well, both of which are defined in the Code of Criminal Justice, N.J.S.A. 2C:1-4. French, supra, 133 N.J. Super. at 465-66.
Gap time credits are not allowed for time served pretrial or pre-conviction. State v. Ruiz, 355 N.J. Super. 237, 248 (Law Div. 2002). Gap time credits do not automatically reduce a parole bar. Booker v. New Jersey State Parole Bd., 136 N.J. 257, 261-63 (1994). Once awarded at sentencing, however, they do serve to advance primary parole eligibility dates. Id. at 265. Gap time credits apply, pursuant to the clear language of the statute, to terms of imprisonment regardless of whether they run on a consecutive or concurrent basis. Id. at 266-67. The gap time statute does not apply where the prior sentence was served out-of-state. Carreker, supra, 172 N.J. at 111.
The primary theme sounded in the opinions dealing with the scope of gap time credit is that the purpose of the legislation is to deter unfair prosecutorial manipulation, whether intentional or otherwise, of sentence dates. It is also intended to extend some relief to a defendant who loses the opportunity for concurrent sentences when earlier matters are overlooked for sentencing purposes. State v. Franklin, supra, 175 N.J. at 463. In this case, however, neither purpose would be advanced by the scheme proposed by defendant -- that gap time apply to all motor vehicle sentences.
In the first place, the Motor Vehicle and Traffic Regulations Code, N.J.S.A. 39:1-1 to 39:13-8, has an entire sentencing scheme separate and apart from the Code of Criminal Justice. All of the instances in which the gap time statute has been found to be available as a basis for an award of credit are related to Title 2C sentences only. Even when the statute was found to apply to the Juvenile Code, it was because the Legislature specifically found that all "defenses available to an adult" under Title 2C would be available to a juvenile. Id. at 466. Conceptually, Juvenile Code offenses refer back to the Criminal Code, and the two are in fact inseparable and must be, in many significant respects, read in pari materia. That relationship simply does not exist between the Motor Vehicle Code and the Code of Criminal Justice.
Additionally, in municipal courts, unlike in Superior Court, where juvenile and criminal matters are heard, presentence reports are virtually unavailable. French, supra, 313 N.J. Super. at 466. In every case involving indictable matters, a presentence report must be supplied. N.J.S.A. 2C:44-6(b). Presentence reports are the source of information as to pending charges, jail credits, scheduled court dates in other courts, and the like. It would not be fair to impose on municipal courts an obligation they cannot fulfill because they lack the necessary information.
The credit scheme contained within the gap time statute has been accurately described as "a matter of legislative grace." Ruiz, supra, 355 N.J. Super. at 249. The scheme defendant proposes would not advance the Legislative goal of preventing prosecutorial manipulation of sentence dates, and of allowing defendants to maximize concurrency opportunities. Therefore, gap time credits will not be awarded against municipal sentences for days served on municipal sentences, regardless of where the time is served.
The enhanced penalties which were imposed pursuant to N.J.S.A. 39:3-40 and its subsections, do appear to be cumulative. State v. Wrotney, 221 N.J. Super. 226, 228-30 (App. Div. 1987). Defendant's reliance on State v. Rought, 221 N.J. Super. 42 (Law Div. 1987), is misplaced. Even a cursory review of the statute makes clear that N.J.S.A. 39:3-40(f)(2) is intended to be in addition to punishment delineated in N.J.S.A. 39:3-40(c). Subsection (c) states that on a conviction for a third or subsequent driving while revoked, a fine of $1000 and imprisonment for ten days shall be imposed. Subsection (f)(2) provides that where the suspension issued as a result of a driving while intoxicated conviction, ...