On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-12-4083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Rodríguez and Chambers.
The issue presented in this appeal is whether defendant James L. Bey should be accorded discretionary jail credits for a period of 718 days in which he was incarcerated after his arrest and while a parole detainer was pending against him. He seeks these credits due to the five-year gap between his plea agreement and sentencing. The lengthy delay in sentencing was due to defendant's cooperation with state and federal law enforcement authorities during this time period.
Defendant does not dispute the trial judge's calculation of jail credits and gap time. Rather, he is now requesting additional discretionary credits as a matter of equity. However, we conclude that defendant is not entitled to any discretionary jail credits because the trial judge took into account the delay in sentencing and defendant's cooperation with law enforcement authorities when she gave defendant a lesser term than that set forth in the plea agreement.
We briefly set forth the chronology of events that gave rise to this application. In Newark, on July 3, 1995, defendant, then twenty-three years old, shot Brian A. Adonis in the chest at the behest of Eugene Seabrooks, a powerful drug figure. In Indictment 96-12-4083, defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (first count); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (second count); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (third count); and second- degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (fourth count).
On January 24, 1996, defendant was arrested on this indictment, and he has remained incarcerated since that time. The day after that arrest, a parole detainer was lodged against defendant. On February 16, 1996, defendant received a three-year flat sentence on another unrelated earlier indictment.
On May 30, 1997, defendant pled guilty to Indictment 96-12-4083 pursuant to a plea agreement, including the first count as amended to first-degree manslaughter. The State agreed to recommend a custodial sentence not to exceed thirty years with fifteen years of parole ineligibility. As part of the plea agreement, the State agreed to dismiss another indictment, Indictment 96-03-960, charging defendant with certain drug offenses. Also as part of the plea agreement, defendant agreed to testify in other proceedings and agreed to enter into a confidential cooperation agreement.
While pending sentence on Indictment 96-12-4083, defendant completed his service of the three-year flat sentence which ended on January 30, 1998. However, his parole detainer remained in effect until January 19, 2000, when it expired.
Defendant was finally sentenced on Indictment 96-12-4083 on September 13, 2002, over five years after his plea and siX years, seven months after his arrest. The State acknowledged at the time of sentencing that defendant's cooperation with law enforcement was a mitigating factor. At sentencing, the trial judge described the significance and risk of that cooperation as follows:
This [cases arising out of Seabrooks' conduct] is probably the most unusual set of cases I have ever handled as a judge in my eighteen years. It is... rare that I have presided over prosecutions of one defendant [Seabrooks] so many times, first of all for so many different acts of violence and a large number of them involving murders of persons who would dare to oppose him, murders of witnesses.....
And one of the things that I commented on when we finally closed the books on all of his matters was... the degree to which it appeared that he was able to control other people, a large number of them women and particularly young men........
And it was also very clear, from the litany of cases that I handled, that it was well known on the street that anyone who would have the nerve to oppose him or to testify against him would likely pay for that with their life. And not necessarily because Mr. Seabrooks would cause that to happen, but someone else who you might least expect would cause ...