February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN E. SCOTT, A/K/A JAY A. SCOTT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-02-0120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Skillman and Gilroy.
A jury found defendant guilty of six counts of receiving stolen property, in violation of N.J.S.A. 2C:20-7(a), four of which were third-degree and the other two fourth-degree offenses. The trial court sentenced defendant to an extended-term sentence of eight years imprisonment, with four years of parole ineligibility, for one of the third-degree offenses. The court imposed concurrent five-year terms for the other third-degree offenses and concurrent eighteen-month terms for the fourth-degree offenses. Defendant's sentence was made concurrent, but not coterminous, with a related Somerset County sentence he was already serving.
Defendant's convictions were based upon evidence obtained in an investigation of a string of residential burglaries committed in Montgomery and Hillsborough Townships, in Somerset County, during the period between May 2001 and January 2002. As a result of those burglaries, the Somerset County Prosecutor's Office established a task force consisting of members of the Prosecutor's Office and Montgomery and Hillsborough Police Departments to identify and apprehend the perpetrator or perpetrators. The task force's investigation led to the discovery that a maroon 1996 Mazda 626 had been observed at more than one burglary site.
Based on this evidence, the task force obtained an order authorizing the installation of a GPS tracking device in the maroon Mazda to facilitate surveillance of this car. The surveillance resulted in defendant's arrest near the scene of two residential burglaries committed in Hillsborough on January 26, 2002. Defendant was indicted and convicted in Somerset County of burglary, theft and other charges arising out of those burglaries.
Following defendant's arrest for the Somerset County burglaries, the task force obtained a warrant for the search of defendant's home and a safe deposit box, which were both located in Mercer County. These searches revealed property stolen in the earlier Somerset County burglaries, which formed the basis of the Mercer County receiving stolen property charges that are the subject of this appeal.
Before the trial on the charges based on the January 26, 2002 burglaries, defendant filed a motion to suppress all evidence obtained by means of the installation of the GPS tracking device in the maroon Mazda, which the Somerset County trial court denied. On defendant's appeal from his convictions of the charges arising out of those burglaries, defendant challenged the denial of that motion. We rejected that challenge and defendant's other arguments and affirmed his Somerset County convictions in a lengthy unpublished opinion.*fn1
State v. Scott, Nos. A-39-04T4 and A-694-04T4 (Sept. 15, 2006).
On his appeal from the Mercer County convictions, defendant presented the following arguments:
DEFENDANT'S SEPARATE SENTENCES ON 02-02-0120-I AND 02-02-0121-I VIOLATE THE TERMS OF STATE V. PILLOT, 115 N.J. 558 (1989) (Not Raised Below).
DEFENDANT WAS ENTITLED TO PERMISSIVE JOINDER UNDER R. 3:15-1 (Not Raised Below).
DEFENDANT IS ENTITLED TO JAIL CREDITS FOR ALL SENTENCES BEGINNING FROM THE DATE HE WAS ARRESTED ON JANUARY 26, 2002 (Not Raised Below).
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR PRE-TRIAL INTERVENTION (PTI).
THE SENTENCE ON THE MERCER TRIAL WAS MANIFESTLY EXCESSIVE (Not Raised Below).
Before submission of the appeal to this panel, defendant withdrew the argument presented under Point V of his brief. Therefore, that argument is no longer before us.
The arguments defendant presents under Point IV of his brief relating to the denial of his motion to suppress the evidence obtained as a result of the order authorizing installation of the GPS tracking system in the maroon Mazda are substantially the same arguments we rejected on his appeal from the Somerset County convictions. Defendant has not presented any argument that would warrant our revisiting that ruling. Therefore, we reject the argument presented under Point IV of defendant's brief substantially for the reasons set forth in our prior opinion.
The arguments defendant presents under Points I, II and VI of defendant's brief are clearly without merit and do not warrant extensive discussion. R. 2:11-3(e)(2).
Regarding Point I, Rule 3:25A-1 provides in pertinent part:
[W]hen a defendant has charges pending in more than one county at any stage prior to sentencing, either the defendant, or the prosecutor in any such county with the consent of the defendant, may move before the presiding judge of the criminal part in the county in which consolidation is sought, or before any judge designated to hear such motion, for consolidation for purposes of entering a plea or for sentencing. [Emphasis added.]
Thus, such consolidation for the purpose of offering pleas or for sentencing may only be made on the motion of the defendant or with his consent. Defendant never sought such consolidation. Furthermore, defendant did not enter a guilty plea to either the Somerset or Mercer County charges. See Pressler, Current N.J. Court Rules, comment on R. 3:25A-2 (2010) (noting that "[c]ollecting charges in a single county other than at the time of plea or dismissal is inadvisable"). Therefore, Rule 3:25A-1 plainly has no applicability to this case.
Regarding Point II, we only note that defendant acknowledges that there was no basis for mandating joinder of the Somerset and Mercer County charges under Rule 3:15-1(b), and that even though a trial court can order permissive joinder under Rule 3:15-1(a) on its own motion, this was not an appropriate case for such joinder. In fact, defendant successfully objected in the Somerset County trial to any reference to the evidence upon which the Mercer County charges were based. Therefore, it is manifest that defendant had substantial strategic reasons for not seeking joinder of the Somerset and Mercer County charges.
Regarding Point V, defendant's very substantial criminal record and the number of offenses he was found to have committed clearly provided an adequate basis for the sentence imposed. The prohibition of N.J.S.A. 2C:44-5(a)(2) against imposition of multiple extended terms did not preclude the court from sentencing defendant to an extended term because the Somerset and Mercer County judgments of conviction involved separate sentences imposed in different proceedings for different offenses. See State v. Williams, 299 N.J. Super. 264, 272-73 (App. Div. 1997) (holding that N.J.S.A. 2C:44-5(a)(2) "does not apply to a situation in which two different courts have imposed extended terms for different offenses"); State v. Reldan, 231 N.J. Super. 232, 238 (App. Div. 1989) (same).
Finally, we deal with defendant's argument, presented under Point III of his brief, that he is entitled to additional jail and gap time credits. After this appeal was submitted to us, it came to our attention that defendant had been released from prison. Consequently, we sent a letter to defense counsel to confirm this change in defendant's custodial status and to inquire whether defendant's claim to additional jail and gap time credits had been mooted by the completion of his sentence and release from prison. Defense counsel confirmed by a letter dated January 26, 2010 that defendant had been released and was not on parole.
Nevertheless, defense counsel argues that defendant's claim to additional jail and gap time credits is not moot because he may have a basis for a civil action against the State if he was found to have been deprived of the full number of credits to which he was entitled and as a result was incarcerated for a longer period than if those credits had been awarded. In support of this argument, defendant relies upon N.J.S.A. 52:4C-1 to -6, which creates a cause of action against the State in favor of "any person convicted and subsequently imprisoned for one or more crimes which he did not commit[.]" N.J.S.A. 52:4C-2. One of the required elements of such a cause of action by a former inmate is to establish that "[h]e did not commit the crime for which he was convicted[.]" N.J.S.A. 52:4C-3(b). Moreover, the statute expressly states that "[a] person serving a term of imprisonment for a crime other than a crime of which the person was mistakenly convicted shall not be eligible to file a claim for damages pursuant to the provisions of this act." N.J.S.A. 52:4C-6(a). We have affirmed defendant's convictions for six counts of receiving stolen property. Therefore, he is not a person who was imprisoned "for one or more crimes which he did not commit[,]" and thus has no cause of action under N.J.S.A. 52:4C-1 to -6.
Defense counsel also asserts that defendant may have a common law cause of action against the State if he was not awarded the full amount of jail and gap time credits to which he is entitled. However, he cites no supporting authority for this assertion, and we do not believe there is any such common law cause of action. Moreover, even if there were a basis for such a cause of action, defendant could undertake to prove he was entitled to additional jail and gap time credits in that action because there has never been a judicial determination of the amount of such credits. In any event, defendant's alleged entitlement to additional jail or gap time credits would have no effect upon his convictions and sentences, which are the sole subjects of this appeal.