September 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEVAR SPRUILL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1518.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Sabatino and Simonelli.
In this pro se appeal, defendant LeVar Spruill seeks relief from the sentence imposed upon him, following his guilty plea and conviction under N.J.S.A. 2C:35-10(a)(1) for third-degree possession of a controlled dangerous substance ("CDS"). More specifically, defendant appeals the Law Division's denial of his application for certain jail credits and for reconsideration of his sentence. We affirm.
At the time defendant committed the instant offense, he was on parole for a previous crime. He was arrested on August 18, 2005. The arrest was based on an outstanding parole warrant, as well as a bench warrant issued by the Law Division for failing to appear on the present drug charges.
Upon his arrest, defendant was provided a parole hearing and then temporarily transferred to the custody of the Department of Corrections. He was ultimately returned back to the Essex County Jail on January 10, 2006. On February 8, 2006, he was released from the county jail on bail.
Plea negotiations ensued. On March 24, 2006, defendant pled guilty to the third-degree CDS charges. In return, the State agreed to dismiss the three other counts in the indictment, one of which had charged a second-degree offense. The State also agreed to recommend a three-year flat custodial sentence.
On May 22, 2006, Judge Kennedy sentenced defendant to a two-year probationary term on the condition that he serve 364 days in the county jail. In his sentencing disposition, Judge Kennedy granted defendant limited jail credits for the periods from March 16 through March 18, 2005, and January 10 to February 8, 2006. The latter time frame corresponds to defendant's incarceration in the Essex County Jail after he had been reevaluated for parole by the State.
Defendant moved before Judge Kennedy to obtain additional jail credits, corresponding to his period of incarceration from August 18 through December 6, 2005. Judge Kennedy denied the application both in a written opinion in September 2006, and a subsequent motion by defendant for reconsideration.
In denying relief, Judge Kennedy relied upon State v. Black, 295 N.J. Super. 453, 458 (App. Div. 1996), which holds that jail credits may only be given for confinement directly attributable to the offense giving rise to the original incarceration. See also R. 3:21-8.
On appeal, defendant argues that Judge Kennedy undercounted his applicable jail credits, and also claims that his sentence was excessive. Neither of those arguments have merit.
With respect to the jail credits, we agree with the trial judge that Black, supra, is controlling. In Black, a defendant similarly attempted to gain jail credits for time he served after being apprehended on a parole warrant. Black, supra, 295 N.J. Super. at 458. The parole warrant had been issued in connection with defendant's sentence on a prior conviction. Ibid. Having already granted defendant credit against his prior conviction for this particular confinement period, the court properly denied defendant additional credits. Ibid. As we noted, the pertinent Court Rule, R. 3:21-8, applies "only to confinement directly attributable to the offense giving rise to the initial incarceration." Ibid.
Similarly here, defendant's confinement between August 18 and December 6, 2005, in the custody of the Department of Corrections, was based upon his parole status. That interval of confinement was not "directly attributable" to the present CDS offense. No further credits are owed.
We also readily dispense with defendant's claim that his sentence was excessive. The record indicates that defendant has two other adult indictable convictions and an extensive juvenile record. Although the plea bargain in this case included a recommendation by the prosecutor for three years flat and defendant was exposed in the indictment to a five-year term, instead he received only two years of probation and 364 days in the County jail. The judge appropriately identified and took into account three aggravating sentencing factors and the sole mitigating factor - the likelihood of responding affirmatively to probationary treatment. In sum, the sentence was not manifestly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984).
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