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State of New Jersey v. A-64 andrea Hernandez

June 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A-64 ANDREA HERNANDEZ, A/K/A ANDREA ROSARIO, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A-65 DERRICK WAYNE ROSE, A/K/A DERRICK W. STEWART, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Judge Stern

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Andrea Hernandez, a/k/a Andrea Rosario (A-64-09) (064946) and State of New Jersey v. Derrick Wayne Rose, a/k/a Derrick W. Stewart (A-65-09) (064945)

Argued September 14, 2010 -- Decided June 8, 2011

JUDGE STERN (temporarily assigned), writing for a majority of the Court.

In these appeals the Court considers the proper application of jail and gap-time credits to cases involving defendants sentenced to imprisonment on multiple indictments. One case involves the disposition of charges in multiple counties; the other multiple charges in the same county.

Andrea Hernandez (Hernandez) was arrested by Paterson (Passaic County) police on October 25, 2006, in connection with a series of armed robberies. On January 23, 2007, while in custody awaiting disposition of the Passaic County charges, Hernandez was charged in Ocean County with third-degree burglary and theft. She was moved to the Ocean County jail the day before. On August 24, 2007, after pleading guilty, Hernandez was sentenced in Ocean County to a three-year prison term, to run concurrent with any sentence she may receive in Passaic County. The judgment of conviction also awarded Hernandez 213 days of jail credit for the "time spent in custody" between January 23 and August 23, 2007. On April 12, 2007, Hernandez was indicted in Passaic County on multiple counts. On October 4, 2007, pursuant to a negotiated plea agreement, Hernandez pled guilty in Passaic County. The plea agreement provided for concurrent sentences of twenty years, eighty-five percent of which would be subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On February 1, 2008, the Law Division in Passaic County imposed a sentence consistent with the negotiated recommendation.

At the Passaic County sentencing proceeding, Hernandez objected to the amount of jail credit that she would receive. Hernandez believed that she was entitled to more than the ninety-day credit given for time she spent in custody from her arrest in Passaic County to the day she was moved to the Ocean County Jail. Hernandez argued (as she does now) that she should also receive credit towards her Passaic County sentence for 220 days she spent in custody between the Ocean County "arrest" and sentencing for the Ocean County offense. The sentencing court rejected Hernandez's request, noting that the requested credit had already been applied against her Ocean County sentence. The Passaic County judgment also awarded Hernandez 161 days of gap-time credit for the period that she spent in custody beginning August 24, 2007 -- the date of her Ocean County sentence -- until January 31, 2008 -- the day preceding the Passaic County sentence.

Hernandez's counsel argued on appeal that the trial judge should have used his discretion to grant additional credits towards Hernandez's twenty-year Passaic County sentence. In addition, Hernandez maintained that applying gap-time credits to the "back end," as opposed to the "front end," of a defendant's NERA sentence would be "meaningless" and contravene this Court's mandate that gap-time credits be awarded in a meaningful way. The State argued for affirmance because the sentencing court "definitely looked at [the credits] carefully, knew the dates and knew what [it] was giving when [it] gave it."

In an unpublished order, the Appellate Division affirmed the trial court's judgment. The panel found "no abuse of discretion with respect to the application of jail credits."

On May 4, 2006, defendant Derrick Wayne Rose (Rose) allegedly sold cocaine and heroin to an undercover police officer. On August 14, 2006, he allegedly sold crack cocaine to another undercover Plainfield (Union County) police officer. Rose was not arrested at the time. On January 26, 2007, Rose was arrested for a theft committed in Linden, another municipality in Union County. On May 31, 2007, he was charged with the Linden offenses. On October 29, 2007, pursuant to a negotiated plea agreement with the State, Rose pled guilty to third-degree theft by unlawful taking for the Linden offense and to two counts of third-degree distribution of CDS for the Plainfield offenses. The State recommended that Rose serve five-year sentences with a three-year period of parole ineligibility for the CDS offenses to run concurrently with each other and consecutively to a four-year sentence for the theft offense. On January 18, 2008, the court imposed the recommended sentence. For the Linden offenses, Rose was awarded 357 days of jail credit from the January 26, 2007, arrest to January 17, 2008, the day before sentencing.

Rose's counsel argued on appeal that credits should be reallocated and applied towards the three-year parole bar on Rose's five-year CDS sentence so as to improve his chances of being accepted earlier into a drug treatment program and asserted that the manner in which the credits were awarded to Rose "could not be worse awarded in terms of moving Mr. Rose from the State Prison system to drug programs."

In an unpublished order the Appellate Division affirmed the trial court's judgment on Rose's appeal and expressly "reject[ed] defendant's argument as to the reallocation of jail credits."

The Supreme Court granted Hernandez's and Rose's petitions for certification and consolidated the matters for purposes of this opinion.

HELD: Both defendants are entitled to precisely what Rule 3:21-8 provides: credits against all sentences "for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence" on each case. The Rule must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits.

1. A defendant may be eligible to receive jail credits under Rule 3:21-8 or gap-time credits under N.J.S.A. 2C:44-5(b)(2) to reduce the time to be served on his sentence. New Jersey courts have interpreted the Rule to allow jail credits only for "such confinement as is attributable to the arrest or other detention resulting from the particular offense." Jail credits are mandatory when the Rule preconditions for their application are satisfied. In addition, they are "day-for-day credits" and are applied to the "front end" of a defendant's sentence. The credit awarded under N.J.S.A. 2C:44-5(b) is referred to as "gap-time credit" because it awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Gap-time credits apply towards the defendant's aggregate sentence and are applied to the "back end" of a sentence. If no parole ineligibility term is imposed, gap-time credits will advance the date on which a defendant first becomes eligible for parole. However, the Court rejects Hernandez's contention that her gap-time credit should reduce her parole bar. Despite the Court's numerous opinions on gap-time credits, it has addressed jail credits only occasionally. In at least two of those cases, however, the Court declined to read Rule 3:21-8 as requiring additional credit. (Pp. 13-26)

2. The Rule governing jail credits has read as it now reads since 1969. However, there have been numerous developments in our criminal procedure and law of sentencing since the Rule was adopted that impact on its proper interpretation. The Code of Criminal Justice, adopted long after the Rule was placed in its present form, seeks to promote disposition of all open charges against a defendant to expedite any incarceration and rehabilitation. In addition, the rules were amended to promote more expeditious processing and disposition of criminal cases. In this context, it is inconceivable that two defendants sentenced to the same sentences for the same crimes in two different counties should actually serve different amounts of real time depending only on the sequence and timing of the imposition of sentence. Neither the Code of Criminal Justice nor our rules of procedure contemplate that the real time a defendant is to serve in custody should turn on which case a prosecutor or court decides to move first. Accordingly, Hernandez should be entitled to jail credit on the Passaic County sentence for the time she spent in custody between her Passaic County arrest and the date sentence was imposed in Ocean County. There is nothing new or extraordinary in this holding and the same principles apply to the Rose matter. Accordingly, the Court interprets Rule 3:21-8 to provide exactly what it states in plain language, and prosecutors and defendants negotiating plea recommendations as well as sentencing judges should so understand it. The Rule must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits. (Pp. 26-32)

The matters are REMANDED for reconsideration of the award of jail credits consistent with this opinion, which shall apply only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing.

JUSTICE HOENS filed a separate, DISSENTING opinion, in which JUSTICE RIVERA-SOTO joins, stating that the majority has thwarted, and not enforced as it should, the expressed will of the Legislature by concluding that the worst offenders in the State's criminal justice system, those facing multiple charges stemming from multiple arrests, regardless of the order in which those offenses were committed or the reason for the offender's continued pre-sentence incarceration, will reap the benefit of having all of that time count against each and every eventual sentence.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, and ALBIN join in JUDGE STERN's opinion. JUSTICE HOENS filed a separate, dissenting opinion, in which JUSTICE RIVERASOTO joins.

Argued September 14, 2010

JUDGE STERN (temporarily assigned) delivered the opinion of the Court.

We granted certification to consider the proper interpretation and application of Rule 3:21-8, the rule governing the award of jail credits, to cases involving defendants sentenced to imprisonment on multiple indictments. One case involves the disposition of charges in multiple counties; the other multiple charges in the same county. We hold that both defendants are entitled to precisely what the Rule provides: credits against all sentences "for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence" on each case. Accordingly, we remand to the Law Division for a re-determination of the credits to be awarded in these cases, which we have consolidated for purposes of this opinion.

I.

In September and October 2006, defendant Andrea Hernandez allegedly took part in a series of armed robberies in Paterson, with her co-defendant, Anthony Figueroa. Hernandez and Figueroa were arrested by Paterson police on October 25, 2006.*fn1

On January 23, 2007, while Hernandez was in custody awaiting disposition of the Passaic County charges, Ocean County authorities charged her with third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, for an earlier theft committed in Ocean Township. She was apparently moved to the Ocean County Jail the day before.*fn2

On May 29, 2007, Hernandez pled guilty to the Ocean County burglary charge, and on August 24, 2007, she was sentenced to three years in the custody of the Commissioner of the Department of Corrections. The sentence was made "concurrent with any Passaic County sentence defendant may receive." The judgment of conviction also awarded Hernandez 213 days of jail credit for the "time spent in custody" between January 23 and August 23, 2007.*fn3 The other count of the indictment was dismissed. In the meanwhile, on April 12, 2007, a Passaic County Grand Jury indicted Hernandez on seven counts of first-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6; seven counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); eight counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); three counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2) and N.J.S.A. 2C:2-6; two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and/or N.J.S.A. 2C:12-3(b); one count of second-degree burglary, N.J.S.A. 2C:18-2; and one count of first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) and N.J.S.A. 2C:2-6.

On October 4, 2007, pursuant to a negotiated plea agreement, Hernandez pled guilty to the seven counts of first-degree robbery embodied in the Passaic County indictment. In exchange the State recommended the remaining counts of the indictment be dismissed and that concurrent sentences of twenty years, eighty-five percent of which would be subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, be imposed. The State also recommended that the sentence run concurrent to the three-year Ocean County sentence that Hernandez was serving at the time.

On February 1, 2008, the Law Division in Passaic County imposed a sentence consistent with the negotiated recommendation. However, at the sentencing proceeding, Hernandez objected to the amount of jail credit that she would receive. Hernandez believed that she was entitled to more than the ninety-day credit given for time she spent in custody from her arrest in Passaic County on October 25, 2006, until January 22, 2007, the day she was moved to the Ocean County Jail. Although the record is unclear, it appears that Hernandez specifically argued (as she does now) that she should also receive credit towards her Passaic County sentence for 220 days she spent in custody between the Ocean County "arrest" and sentencing for the Ocean County offense. The sentencing court rejected Hernandez's request, noting that the requested credit had already been applied against her Ocean County sentence. She was thus awarded only the ninety days of jail credit spent in Passaic County solely attributable to the Passaic County offenses. The Passaic County judgment also awarded Hernandez 161 days of gap-time credit for the period that she spent in custody beginning August 24, 2007 -- the date of her Ocean County sentence -- until January 31, 2008 -- the day preceding the Passaic County sentence.

As a result, in the aggregate, Hernandez seeks "jail credits" for every day from October 25, 2006, the day of her arrest in Passaic County, to August 23, 2007, the day before her Ocean County sentence was imposed, and "gap-time" credits against the Passaic County judgment from August 24, 2007, the date of the Ocean County sentence, to January 31, 2008, the day before imposition of the Passaic County sentence. See N.J.S.A. 2C:44-5(b)(2). In other words, she seeks an additional 220 days of jail credits under Rule 3:21-8.

II.

On May 4, 2006, defendant Derrick Wayne Rose allegedly sold cocaine and heroin to an undercover police officer. On August 14, 2006, he allegedly sold crack cocaine to another undercover Plainfield police officer. Rose was not arrested at the time. On January 26, 2007, Rose committed a theft in Linden, another municipality in Union County. He was arrested that day by Linden police.*fn4

On April 26, 2007, defendant was indicted for distribution of a controlled dangerous substance (CDS) and distribution within 500 feet of a public housing facility, for the alleged sale on May 4, 2006. On May 1, 2007, another indictment embodying the same charges was returned for the August 14, 2006, CDS offenses. On May 31, 2007, defendant was charged with the Linden offenses, third-degree burglary, in violation of N.J.S.A. 2C:18-2, and third-degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3.*fn5

On October 29, 2007, pursuant to a negotiated plea agreement with the State, Rose pled guilty to third-degree theft by unlawful taking for the Linden offense and to two counts of third-degree distribution of CDS for the Plainfield offenses.*fn6

In exchange, the State recommended dismissal of the other charges and recommended that Rose serve five-year sentences with a three-year period of parole ineligibility for the CDS offenses to run concurrently with each other and consecutively to a four-year sentence for the theft offense.

At the sentencing hearing on January 18, 2008, Rose requested that he be placed in a drug treatment program. Although the court was sympathetic to Rose's request, it stated that it would not deviate from the minimum sentence prescribed in the plea agreement because Rose had eighteen prior convictions,*fn7 and, under the Brimage Guidelines,*fn8 it had no discretion to order a period of parole ineligibility below the three-year mandatory-minimum sentence for the CDS offense. See N.J.S.A. 2C:35-12; 2C:43-6f. However, the court did direct that Rose receive drug treatment and vocational training in prison.

The court imposed two concurrent five-year sentences with three years of parole ineligibility on the drug charges (CDS sentence), to run consecutively with a four-year sentence for the theft charge. It found that aggravating factors 3, 6, and 9 outweighed the nonexistent mitigating factors. See N.J.S.A. 2C:44-1(a), -1(b). The defendant was awarded one day of jail credit for the May 4, 2006, offense. The judgment reflects an "arrest" that day. It is unclear why this date and credit are noted. To the contrary, the police reports attached to the presentence report reflect no "arrest" that date, and -- as already noted -- the parties agree there was no arrest. No arrest date was included in the relevant portion of the other CDS judgment, and no credits were granted. For the Linden offenses the judgment reflects the January 26, 2007, arrest and grants 357 days of jail credit from the January 26, 2007, arrest to January 17, 2008, the day before sentencing.

III.

As already noted, in the Law Division Hernandez sought more jail credits beyond the ninety days awarded from October 25, 2006, to January 22, 2007, and the 161 days of gap-time credit from August 24, 2007, to January 31, 2008. The judge denied the request, stating, "[y]ou can't get credit for an ...


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