July 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLAUDIO AREVALO, A/K/A TIRSO MERLANO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-10-1413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued June 25, 2009
Before Judges Cuff and Fuentes.
Defendant Claudio Arevalo was tried before a jury and found guilty of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.*fn1 The court sentenced defendant to a term of seven years, with a mandatory five-year period of parole ineligibility. The court awarded defendant 301 days of gap time credit, and assessed the appropriate fines and penalties.
The facts are straight forward. Indictment No. 04-10-1413-I originally charged defendant with third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count one); third-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), (count two); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4), (count three); and second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7, (count four); the State opted to proceed only with the charge under N.J.S.A. 2C:39-7.
At trial, Passaic Police Officer Reynaldo Arroyo testified that on April 3, 2004, at approximately 7:30 p.m., he and two other officers were in the area of Passaic Public School Number 11 when they saw two men sitting on bleacher style benches. According to Arroyo, one of the men appeared to be drinking some kind of alcoholic beverage, the other was smoking a cigar.
As Arroyo and his fellow officers approached, the men became startled; the one smoking threw the cigar on the ground; the other man (later identified as defendant) removed something from his waistband and dropped it to the ground, causing a clinking sound, like a piece of metal hitting a hard surface. When Arroyo pointed his flashlight in the direction of the sound, he saw a handgun under the bleachers, in the area were defendant had been sitting. Arroyo described the weapon as a.22 caliber revolver, with one round in the cylinder. The handgun had been defaced by having the serial number scratched out.
After being questioned directly by the court concerning his right to testify in his own defense, defendant chose not to testify. At defendant's request, the court instructed the jury not to draw any adverse inference from defendant's decision not to testify at trial. Defense counsel did not call any witnesses.
Against this record, defendant now appeals raising the following arguments:
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT.
THE COURT ERRED IN FAILING TO AWARD DEFENDANT 174 DAYS OF JAIL CREDIT FOR TIME SERVED FROM THE DATE OF HIS ARREST ON THIS OFFENSE UNTIL THE DATE HE WAS SENTENCED ON VARIOUS VIOLATIONS OF PROBATION.
THE COURT SHOULD HAVE AWARDED ADDITIONAL GAP-TIME CREDITS.
The argument raised in Point One lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because defendant did not object to the court's instructions at the time, we review any alleged impropriety under the plain error standard. R. 2:10-2. The court's jury instructions concerning defendant's decision not to testify, tracked the model charge approved by the Supreme Court. We discern no error, much less plain error in this respect.
In order to address the argument raised in Point Two, we must expand our factual recitation to include events that occurred before defendant committed the offense at issue here.
On March 7, 2004, (twenty-seven days before the offense at issue in this trial), defendant was charged with two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); second-degree possession of a weapon for an unlawful purpose (during a domestic violence dispute), N.J.S.A. 2C:39-4(a); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). A warrant for defendant's arrest was issued contemporaneously with these charges. This warrant remained open until April 3, 2004, when defendant was arrested on the weapon's possession charge for which he was tried and convicted here.
On July 14, 2004, a Passaic County Grand Jury issued Indictment No. 04-07-0978-I, formally charging defendant in connection with the domestic violence incident of March 7, 2004. This indictment charged defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a).
On October 14, 2004, a Grand Jury returned Indictment No. 04-10-1413-I, the instrument formally charging defendant with the weapon's offense for which he was tried and convicted here. On February 18, 2005, the court sentenced defendant to a term of three years on his guilty plea to third-degree terroristic threats, as reflected in count three of Indictment No. 04-07-0978-I. As part of this sentence, the court awarded defendant 174 days of jail credits from the day of his arrest on April 3, 2004, to September 24, 2004, the day he was sentenced for parole violations.
Defendant now argues that the trial court that sentenced him on the offense of possession of a firearm by a convicted felon erred by not awarding him the same 174 days of jail credits. Defendant relies on a plain reading of Rule 3:21-8, which provides: "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence."
Defendant concedes, that he is not entitled to any jail time credit after he began serving the three-year sentence imposed by the court on February 18, 2005 for terroristic threats. He nevertheless argues that under our decision in State v. De Rosa, 332 N.J. Super. 426, (App. Div. 2000), he is entitled to jail time credit on this offense. In response, the State contends that De Rosa is distinguishable from the facts here, because our driving concern in De Rosa was to avoid penalizing the defendant for exercising his right to appeal. Id. at 433.
In this light, a brief description of the factual circumstances in De Rosa is in order. John De Rosa was arrested on October 16, 1980, on murder and weapons charges. Id. at 428. He remained in custody on these offenses up to and including November 3, 1980, when he pled guilty to fourth-degree assault and third-degree receiving stolen property. Ibid. De Rosa was sentenced on these charges on November 18, 1980 to an aggregate term of eighteen months. The pre-sentence report states he received jail credits for that sentence from the date of his plea on November 3, 1980 to the date of sentence on November 18, 1980, in addition to a twelve-day credit from his arrest on one or both of those charges in June 1980. [Ibid.]
De Rosa went to trial on the murder charge, and was convicted by a jury on April 16, 1981. Ibid. He was sentenced to an aggregate term of forty years, with twenty years of parole ineligibility on May 27, 1981. Ibid. While serving this sentence, he pled guilty to charges of criminal mischief and possession of a weapon, and was sentenced in June 1981, to a concurrent term of six and one-half years. Ibid. In August 1982, De Rosa pled guilty to yet other burglary offenses, and was sentenced to a term of ten years, to run concurrent to the sentence on murder. Ibid.
De Rosa's conviction on the murder charge was overturned on appeal. Ibid. The case was eventually retried, resulting in his re-conviction. Id. at 349. The question before the court concerned De Rosa's request to receive jail time for the murder conviction, from the date of his first conviction, up to and including his second trial, even though he was serving two sentences for unrelated offenses (the criminal mischief and burglaries). Ibid.
In granting De Rosa's request for jail credits, Judge Ciancia noted:
If defendant had not appealed his first conviction, or if he had appealed and lost, the time period here at issue would have been credited against his sentence for murder even though he was simultaneously serving time for other offenses on sentences that were running concurrently. If defendant had not pled to those other charges he would have received jail credit for the time spent incarcerated between the reversal of his first conviction and his sentence upon reconviction, pursuant to R. 3:21-8. If defendant is now denied these credits, in a very real sense he is being punished for successfully challenging his conviction. (Emphasis added.) [Id. at 433.]
We now return to the issue at hand. Here, defendant pled guilty to terroristic threats while he was incarcerated on the weapon's charge under review. He was sentenced and received full jail time credit from the date of incarceration to the date he began serving that sentence. He was thereafter tried, convicted, and sentenced on this weapon's charge. As this procedural history demonstrates, Arevalo's application for jail time credit here is not tethered to his right to stand for trial on the weapon's charge.
The key distinction between this case and De Rosa is Arevalo's custodial status. Here, Arevalo was not serving a custodial sentence at the time he decided to plead guilty to terroristic threats, and stand for trial on the weapon's charge. In De Rosa, the defendant was serving a State prison sentence on murder when his conviction was overturned on appeal. In De Rosa, it would have been an injustice to deny the defendant jail time credit upon his subsequent re-conviction, merely because he pled guilty to two separate offenses while the appeal was pending.
Here, had Arevalo been found not guilty of the weapon's offense, he would have continued to serve the state prison sentence for terroristic threats, having received the 174 jail time credit for that offense. Thus, requesting that the same jail time credit be recognized in the conviction for the weapon's offense amounts to double counting of jail time credit. To award Arevalo such "double counting" of jail time credit is not in the interest of justice. Its denial does not inhibit, in any way, Arevalo's right to stand for trial on the weapon's charge.
Finally, on the gap time credit issue raised in Point Three, the State concedes, and we agree, that defendant is entitled to be credited for 55 gap time credit days between December 17, the day he was originally scheduled to be sentenced, to February 8, 2006, the day before the court rendered his actual sentence. N.J.S.A. 2C:44-5(b).
Defendant's conviction is affirmed. The matter is remanded for the trial court to amend the Judgment of Conviction to reflect an additional 55 days of gap time credit.