December 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES L. BEY, A/K/A JAMES L. LAWSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that to happen, which is the type of situation that Mr. Bey found himself involved in.....
[This] is something that I cannot fail to take into account in dealing with Mr. Bey.... there was more at stake here in... testifying and coming forward and providing information than perhaps any average case.
As a result, the trial judge gave great weight to defendant's cooperation with law enforcement, further explaining:
I will give a great deal of weight to Mr. Bey's willingness to cooperate with law enforcement authorities, to face the intimidation of testifying for the State with Mr. Seabrooks and his gang's knowledge at numerous trials. And, obviously, people were aware that he was providing information. And I understand that he did that at great risk to himself. So I will give great weight to that mitigating factor.
Defense counsel noted at sentencing that, due to the five-year delay between the plea and sentencing, defendant was deprived of the opportunity to earn good time, work time, and commutation credits, which would have been available if the five years had been spent in state prison. Further, defense counsel maintained that the sentence may have been concurrent with the parole violation. Based on these factors, defense counsel argued for a sentence of twenty years with ten years of parole ineligibility. The State sought a sentence of thirty years with fifteen years of parole ineligibility pursuant to the plea agreement.
The trial judge imposed a sentence of twenty-five years with twelve and one-half years of parole ineligibility, which was five years less than the plea agreement. At that point, the trial judge had calculated jail credits of 969 days. That sum was later corrected to 970 days.
The case appeared on our sentencing calendar on April 5, 2006. Although we did not find the sentence excessive, we did remand the case to the trial court for reconsideration of jail credits and gap time credits. This was not done, and on August 22, 2007, the case again appeared on our sentencing calendar, and we remanded to the trial court a second time.
On remand, the trial judge determined that defendant was entitled to 970 days of jail credits and 705 days of gap time credit, representing the time he served on the flat three-year sentence. These calculations are not disputed.
On appeal, defendant seeks discretionary jail credit. Although this issue was not raised before the trial court, defendant requests that we exercise our original jurisdiction and award defendant the credits. We have decided to exercise our original jurisdiction to consider this question concerning discretionary credits. R. 2:10-5. A remand would serve little purpose since the sentencing judge has now retired; any new trial judge handling the question on a remand would be limited to the same record that we have. Further, we note that the question of credits on defendant's sentence has now been pending since his sentencing on September 13, 2002, more than seven years ago, and we have already remanded the case twice on sentencing issues. See State v. de la Hoya, 359 N.J. Super. 194, 196 (App. Div. 2003) (where we exercised our original jurisdiction in a bail forfeiture and remission case after the matter came back to us after one remand).
Although defendant acknowledges that the calculation of jail credits and gap time is accurate, he nonetheless maintains that he is entitled to discretionary jail credits for the period from January 31, 1998, the day after his three-year sentence ended, to January 18, 2000, the day before the parole detainer expired, a period of almost two years. He argues that he is entitled to the credits as a matter of fairness, relying on the law in Breeden v. N.J. Dept. of Corr., 132 N.J. 457 (1993); State v. Hill, 208 N.J. Super. 492 (App. Div.), certif. denied, 104 N.J. 412 (1986); State v. Grate, 311 N.J. Super. 456, 457-58 (App. Div. 1998); and State v. Fyffe, 244 N.J. Super. 310, 313-16 (App. Div. 1990). He cites as equitable considerations the five-year delay between his plea and sentencing due to his cooperation with federal and state authorities against a notorious drug kingpin, and the fact that he placed his life at risk when cooperating with law enforcement authorities. Further, by delaying the sentencing, he argues that he lost the opportunity of having his sentence concurrent with the parole violation. He also lost the opportunity of earning good time, work time and commutation credits in the prison system for this time period.
All of these factors, however, were considered by the trial judge. In fixing the sentence, the trial judge expressly stated that she was taking into account defense counsel's arguments regarding the lengthy delay's impact on defendant's sentencing circumstances, stating:
I have also given consideration to defense counsel's argument that... with no control of his own, we have delayed this matter in sentencing for a lengthy period of time, which, of course, has impacted on him in the ways that she has argued. So I have taken all that into consideration in imposing sentence.
As a result, the sentence was five years less than that set forth in the plea agreement. Further, in the discussion at the sentencing hearing, the trial judge explained that defendant was not entitled to credit for time spent serving the parole violation, and defense counsel did not dispute that.
We are satisfied based on this record that when the trial judge imposed the sentence, she adequately took into account the equitable factors defendant now argues. To allow additional credits based on those factors would effectively double count those factors and reduce the sentence. Further, in looking at the sentence as a whole in light of the nature of the conviction, the plea agreement, defendant's cooperation with law enforcement and the risk of doing so, the delay in sentencing, and the jail credit and gap time received, we conclude that it is fair.
© 1992-2009 VersusLaw Inc.