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State of New Jersey v. A-64 andrea Hernandez

SUPREME COURT OF NEW JERSEY


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 -- an indictment in Ocean and credit here for -- for the same time period."

Before the Appellate Division, Hernandez challenged the Passaic County sentence and asserted that the sentencing court should have (1) found that a mitigating factor was supported by the record and (2) considered granting Hernandez additional credits towards her twenty-year sentence. On the latter point, counsel noted that Hernandez received jail credits for time spent in custody between her "arrest" in Ocean County and her three-year Ocean County sentence, which is not governed by NERA, but not towards her twenty-year Passaic County sentence, which is governed by NERA. Therefore, counsel argued that following State v. Hill*fn9 and State v. Marnin*fn10 and several other cases that follow that, the judge should have considered his discretionary ability to award credit toward the NERA sentence where the credit for day to day jail had been subsumed in a sentence that meant absolutely nothing in terms of her future.

That is to say, whether [ ] consecutive or concurrent, by the time she finishes the NERA [twenty] she will have maxed out the [three]-year sentence out of Ocean County.

So, to apply those credits to that sentence was to essentially extend her term that much the more. And the judge had the discretion under Hill and Marnin to apply those credits to the sentence, and I believe it should be remanded at least for him to consider whether that was appropriate because he certainly made no statement to the contrary. Hernandez's counsel also 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" to the defendant and contravene this Court's mandate in Booker v. New Jersey State Parole Board, 136 N.J. 257 (1994), that gap-time credits be awarded in a meaningful way. Accordingly, counsel suggested that the sentencing court "should at least have said[,] I have considered the possibility, I've considered my authority to use these credits as discretionary credits as a grant of front end jail time credit[,] and I choose not to do so."

In response the State maintained that the sentencing court adequately explained why Hernandez was getting gap-time credit, not jail credit, for the time that she spent in custody in Ocean County since August 24, 2007, the sentencing date in Ocean County, and why she was getting jail credit only for the time "she has spent only incarcerated on the Passaic offenses." Therefore, 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." We thereafter granted certification. State v. Hernandez, 201 N.J. 154 (2010).

On September 22, 2009, at the Sentence Oral Argument before the Appellate Division, Rose's counsel argued that Rose's credits should be reallocated and applied towards the three-year parole bar on his five-year CDS sentence so as to improve his chances of being accepted earlier into a drug treatment program, and that the sentencing court was not obligated to order the four-year theft sentence to run consecutively to the CDS sentence.*fn11 In regard to the credits argument, counsel explained that "prison programs and . . . release to inpatient programs are often predicated on the availability of parole for the individual" and asserted that the manner in which the credits were awarded to Rose -- one day of jail credit towards the five- year sentence with a three-year parole ineligibility term and 357 days of jail credit on the consecutive four-year sentence --"could not be worse awarded in terms of moving Mr. Rose from the State Prison system to drug programs." Specifically, counsel noted that "by th[e] time [Rose] serves the three-year parole ineligibility feature on the two drug charges he will be parole eligible with or without [the 357 days of jail credit] on his consecutive four-year sentence." In light of that, counsel maintained that the sentencing court should have allocated Rose's jail credits in a manner designed to shorten Rose's period of parole ineligibility. He also urged the panel to remand to the sentencing court "to consider State v. Marnin, State v. Hill, State v. Fyffe,*fn12 [and] State v. Grate,"*fn13 because "all of those cases . . . say in a situation like this the judge has the authority to award those credits to both sentences reducing, thereby, the period of parole ineligibility." The State countered that "the [L]egislature has determined that there's a three-year mandatory sentence for this" and that "to say that [Rose] should be . . . given extra special credits or a break at this stage in his life and his criminal career is . . . not appropriate."

In an unpublished order the Appellate Division affirmed the trial court's judgment on Rose's appeal. The panel expressly "reject[ed] defendant's argument as to the reallocation of jail credits." This Court then granted certification. State v. Rose, 201 N.J. 155 (2010).

IV.

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.

Rule 3:21-8 provides that "[t]he 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." Ibid. Such credit for pre-sentence custody is commonly labeled "'jail credits.'" Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). Jail credits were conceived as a matter of equal protection or fundamental fairness and a means of avoiding the double punishment that would result if no such credits were granted. See id. at 250 n.2. Otherwise, "the judicial sentence would be cumulative to jail time spent by a presumably innocent but poor defendant" who could not make bail or conditions of pretrial release. Ibid. Although "R[ule] 3:21-8 expresses the public policy of the State and should be liberally construed," State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974), 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." State v. Black, 153 N.J. 438, 456 (1998)(internal quotations and citation omitted); accord State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.), certif. denied, 192 N.J. 68 (2007); State v. Mercadante, 299 N.J. Super. 522, 529 (App. Div.), certif. denied, 150 N.J. 26 (1997); State v. Allen, 155 N.J. Super. 582, 584 (App. Div.), certif. denied, 77 N.J. 472 (1978); State v. Council, 137 N.J. Super. 306, 308 (App. Div. 1975); see also State v. Hill, supra, 208 N.J. Super. at 495 (Rule 3:21-8 "only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration." (quoting In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981)) certif. denied, 104 N.J. 412 (1986). When the Rule preconditions for the application of jail credits are satisfied, the award of such credits is mandatory, not discretionary. Hemphill, supra, 391 N.J. Super. at 70 (citation omitted). "Where the [Rule] does not apply," however, some lower courts have held that "the credit may nevertheless be awarded based on considerations of fairness, justice and fair dealings." Ibid. (citation omitted).

Jail credits are "day-for-day credits," Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006), that are applied to the "front end" of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day defendant was held in custody for that offense prior to sentencing. See Booker, supra, 136 N.J. at 263, 265. The practical effect of that allocation is that jail credits will "reduce a[] [parole] ineligibility term as well as the sentence imposed." State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied, 146 N.J. 569 (1996).

N.J.S.A. 2C:44-5(b) provides for "gap-time" credits:

When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served[.] [Ibid.]

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. The primary purpose of allowing such credit "'is to avoid the manipulation of trial dates to the disadvantage of defendants,'" State v. Carreker, 172 N.J. 100, 105 (2002) (quoting Booker, supra, 136 N.J. at 260), and to "'counteract any dilatory tactics of the prosecutor' in pursuing a conviction for another offense after a defendant has been sentenced on the previous offense." Ibid. (quoting State v. Hall, 206 N.J. Super. 547, 550 (App. Div. 1985)). However, gap-time credits are appropriate even in the absence of evidence of intentional prosecutorial delay. State v. Franklin, 175 N.J. 456, 463-64 (2003).

To demonstrate an entitlement to gap-time credit, a defendant must establish three facts: "(1) the defendant has been sentenced previously to a term of imprisonment[;] (2) the defendant is sentenced subsequently to another term[;] and (3) both offenses occurred prior to the imposition of the first sentence." Id. at 462 (citing Carreker, supra, 172 N.J. at 105). If the defendant meets those requirements, the sentencing court is obligated to award gap-time credits. Ibid. (citing Carreker, supra, 172 N.J. at 105). Those credits apply towards the defendant's aggregate sentence, which is calculated as the length of the defendant's longest term when he or she is ordered to serve multiple sentences concurrently and is "'equal to the sum of all terms'" when he or she is ordered to serve multiple sentences consecutively. Richardson, supra, 110 N.J. at 246 (quoting N.J.S.A. 2C:44-5(e)).

Unlike jail credits, gap-time credits are applied to the "back end" of a sentence. Booker, supra, 136 N.J. at 260. If no parole ineligibility term is imposed, gap-time credits will advance the date on which a defendant first becomes eligible for parole -- specifically, the point at which the defendant has served one-third of his aggregated sentence minus credits. Booker, supra, 136 N.J. at 264-65; N.J.S.A. 30:4-123.51(a). However, under the circumstances presented in Booker, "we agree[d] with the Appellate Division that 'a period of parole disqualifier is an absolute term, against which there are to be no credits (other than jail credits).' Accordingly, we reject[ed] Booker's contention that gap-time credit should reduce his parole bar." Supra, 136 N.J. at 263 (citing Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (1993)).*fn14

See also Richardson, supra, 110 N.J. at 254-55 ("[W]e reject defendant's argument that the 2C:44-5b(2) 'gap-time' credit serves to reduce a judicial or statutory parole bar by a 'front-end' reduction of aggregated sentences.").

Hernandez contends she would serve her entire twenty-year sentence (reduced by good time comportment and work credits) before the seventeen-year parole bar is reached, thereby rendering the gap-time credits "meaningless."

N.J.S.A. 30:4-123.51(a) clearly provides:

Each adult inmate sentenced to . . . a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, . . . less commutation time for good behavior pursuant to . . . [N.J.S.A.] 30:4-140 and credits for diligent application to work and other institutional assignments pursuant to . . . [N.J.S.A.] 30:4-92. Consistent with the provisions of the New Jersey Code of Criminal Justice ([N.J.S.A. ]2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term.

[Ibid.]

Under N.J.S.A. 30:4-140, a defendant like Hernandez who faces a mandatory-minimum sentence of seventeen years imprisonment is entitled to receive as many as 1,896 days of commutation credit against her base term "for continuous orderly deportment," ibid., and under N.J.S.A. 30:4-92, a defendant may receive work credits "not [to] exceed one day for each five days of productive occupation." Ibid. Therefore, particularly due to projected commutation and work credits, Hernandez will almost certainly "max out" on her twenty-year base term when the seventeen-year minimum term is satisfied. See Salvador v. Dep't of Corr., 378 N.J. Super. 467, 469-70 (App. Div. 2005) (noting that "'[m]ost NERA inmates will accumulate sufficient credits to 'max out' and be released immediately upon completion of their [eighty-five percent] parole bar'" and holding that credits cannot be used to reduce mandatory five-year period of parole supervision required by NERA (quoting State v. Freudenberger, 358 N.J. Super. 162, 169 (App. Div.), certif. denied, 185 N.J. 295 (2003) and disapproved on other grounds, State v. Johnson, 182 N.J. 232, 242 n.3 (2005)); Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429-30 (rejecting NERA defendant's argument that gap-time credit not awarded against the period of parole ineligibility is "rendered meaningless or 'bogus,'" because "the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release"); see also Booker, supra, 136 N.J. at 267 (noting that "those offenders with long parole bars will have 'maxed out' long before the credit becomes relevant"); State v. Webster, 383 N.J. Super. 432, 437 (App. Div. 2006) (finding "evidence of a clear intent by the Legislature when enacting NERA in 1997 to require defendants subject to the Act's provisions to serve the full eighty-five percent period of their parole disqualification prior to any release from custody"), aff'd o.b., 190 N.J. 305 (2007).

Hernandez's reliance on Booker for the proposition that sentencing courts can impose discretionary jail credits is misplaced, and the language she cites is taken out of context. In Booker, a gap-time credit case, we expressed the desire to avoid creating "'bogus credits,' a calculation without any effect." Supra, 136 N.J. at 267. As a result, we concluded that although gap-time credits should be applied to the "back end," as opposed to the "front end," of sentences, those credits would serve to advance the "primary parole eligibility date" for defendants facing sentences "when neither a judicial nor a statutory parole bar has been imposed[.]" Id. at 261, 263-65 (emphasis added).*fn15

We adhere to Richardson and Booker and reject Hernandez's contention that her gap-time credit should reduce her parole bar. However, those cases do not address our Rule 3:21-8 or jail credits for time spent in custody before sentencing following arrest on other charges.

Despite our numerous opinions on gap-time credits, see, e.g., Carreker, supra, 172 N.J. 100; Richardson, supra, 110 N.J. 241; Booker, supra, 136 N.J. 257; Franklin, supra, 175 N.J. 456, and on credits for time on parole or probation upon revocation, see State v. Oquendo, 133 N.J. 416 (1993); State v. Rosado, 131 N.J. 423 (1993); State v. Williams, 81 N.J. 498 (1980), we have addressed jail credits only occasionally.

In State v. Towey, 114 N.J. 69 (1989), we clarified the meaning of a custodial sentence under Rule 3:21-8. There the defendant pled guilty to aggravated manslaughter. Id. at 73. She was sentenced to a ten-year term of incarceration, with a parole ineligibility period of five years. Ibid. At issue was whether the Graves Act imposed limits on a sentencing judge's discretion regarding the term of parole ineligibility and what factors affect parole ineligibility terms. Id. at 72-73. After discussing the sentencing issues, id. at 76-85, we considered whether the trial court erred in denying jail credit for the defendant's time in a psychiatric hospital following a suicide attempt. Id. at 85, 75-76. When she entered the hospital, she had done so voluntarily and at a time when she was not yet charged. Id. at 85. We accordingly rejected the defendant's contention that, because the bail package provided for her continued stay at the institution, she was effectively in custody within the meaning of Rule 3:21-8. Id. at 85-86. Although the Rule "should be liberally construed" to avoid defendants being incarcerated beyond their maximum sentences, we held the defendant's hospital confinement was not custodial within the meaning and requirements of the Rule. Ibid. (citations omitted). See also State v. Lee, 60 N.J. 53 (1972) (no difference between imposition of custodial sentence and of custodial commitment under Sex Offender Act).

In State v. Black, supra, 153 N.J. at 455-61, we assessed the application of Rule 3:21-8 where a defendant released on parole was returned to custody based on conduct that led to revocation of parole and further service of the sentence on which he was paroled, as well as a conviction on the new charge of absconding. The defendant claimed on appeal that pursuing both the absconding charge and the parole revocation violated "principles of double jeopardy and fundamental fairness," and that the time he spent incarcerated between his absconding arrest and sentencing warranted a credit against the absconding sentence. Id. at 441-42. We also considered whether the defendant "should have received jail credit against his absconding sentence for the full time he spent in custody between his arrest and sentencing on that charge." Id. at 455-56.

Black was originally sentenced to a three-year term for CDS violations. Id. at 441. He was released on parole but failed to report to his parole officer. Ibid. A parole warrant was issued, and he was also indicted for absconding. Id. at 441-42. The defendant was eventually returned to custody at which point his parole was formally revoked, and he was ordered to complete the remaining 337 days of imprisonment on the CDS sentence, commencing as of the date of his return to custody. Id. at 442. The defendant also pled guilty to the absconding charge in return for the State's agreement recommending a three-year sentence to run concurrently with defendant's original CDS sentence, and he was sentenced in accordance with the plea.

Ibid. Although the 103 days spent in custody were applied to the parole violation, the defendant sought to have the 103 days applied to his absconding sentence as well. Id. at 442.

In examining the relevant caselaw, we noted that Rule 3:21-8 "has been interpreted to require credit only for 'such confinement as is attributable to the arrest or other detention resulting from the particular offense.'" Id. at 456 (citing State v. Allen, supra, 155 N.J. Super. at 585). We further noted that "the record suggests that [Black's] return to custody arose under the parole warrant," id. at 456, and that N.J.S.A. 30:4-123.62(a)(2) provides that "[n]o parolee held in custody on a parole warrant shall be entitled to release on bail." Id. at 459 (citing N.J.S.A. 30:4-123.62(a)(2)). Therefore, we held that when a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release. If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. If parole is revoked, then the period of incarceration between the parolee's confinement pursuant to the parole warrant and the revocation of parole should be credited against any period of reimprisonment ordered by the parole board. Any period of confinement following the revocation of parole but before sentencing on the new offense also should be credited only against the original sentence, except in the rare case where the inmate has once again become parole eligible on the original offense but remains incarcerated because of the new offense. [Id. at 461.]

Applying these principles, the Court affirmed the grant of three days credit, rather than the 103 days the defendant sought on the absconding conviction. Id. at 442, 461-62.

Finally, in State v. Carreker, supra, 172 N.J. at 115, we also addressed sua sponte the issue of whether the defendant would be entitled to presentence jail credits where she was serving a custodial sentence in New York but was returned to New Jersey pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, in order to resolve pending charges here. Id. at 104. While Carreker was incarcerated in New York, officials in New Jersey had lodged a detainer against her pursuant to an arrest warrant arising out of a Somerville, New Jersey incident. Ibid. Carreker filed a request under the IAD to resolve the New Jersey charges. Ibid. She was extradited from New York to the Somerset County jail and reached a plea agreement with the State under which she would serve a four-year term to run concurrent with her New York sentence. Ibid. The defendant did not seek jail credits, but we nevertheless explained:

For completeness, we note that defendant has not requested "jail credit" under Rule 3:21-8 for the time spent in Somerset County awaiting disposition of the New Jersey offense; nor would she be entitled to such credit on the record presented. Generally, that form of credit applies to confinement attributable to the offense that gave rise to the sentence. State v. Black, 153 N.J. 438, 456 (1998). In this case, defendant's presentence confinement in Somerset County was attributable not to a New Jersey offense, but to the fact that, under N.J.S.A. 2A:159A-5(f) of the IAD, she was required to continue her term of incarceration under her New York sentence. Under that circumstance, New Jersey jail credit does not apply. [Id. at 115.]

In Black and Carreker, the defendants were serving a custodial sentence, and we concluded they were not entitled to presentence jail credits against a new sentence for time served in custody while those new charges were pending. Under those circumstances, we declined to read Rule 3:21-8 as requiring additional credit.*fn16

The custodial status of Hernandez and Rose differs from that of the defendants in Black and Carreker. Hernandez and Rose seek jail credit for time spent in presentence custody on multiple charges and are not seeking jail credits for time accrued after imposition of a custodial sentence. We have not previously addressed these circumstances or the meaning of Rule 3:21-8 when a defendant who is incarcerated awaiting disposition on charges is also held awaiting disposition on other charges.

The Rule governing jail credits has read as it now reads since 1969. R. 3:21-8. See R.R. 3:7-10 (prior to 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 was adopted effective September 1, 1979, N.J.S.A. 2C:98-4, long after the Rule was placed in its present form. The Code introduced the concept of with degrees of crimes, ranges of sentence for each degree, and a presumptive sentence at the midpoint.

N.J.S.A. 2C:43-6.*fn17 In some instances extended terms may or must be imposed. N.J.S.A. 2C:43-6, -7, -3. The Code sentencing provisions also introduced the concept of discretionary and mandatory parole ineligibility terms as a result of which up to one-half of the sentence may, or even must, be served before parole eligibility. N.J.S.A. 2C:43-6(b), -6(f), -7(b). Subsequently, the No Early Release Act, N.J.S.A. 2C:43-7.2, was enacted and requires eighty-five percent of a term to be served on sentences for certain first- and second-degree crimes. Moreover, N.J.S.A. 2C:44-5 detailed guidelines and principles regarding multiple sentences.

Mandatory and discretionary parole ineligibility terms were essentially unknown to our law of sentencing when Rule 3:21-8 was first adopted and interpreted, see, e.g, Allen, supra, 155 N.J. Super. 582; Council, supra, 137 N.J. Super. 306; Marnin, supra, 108 N.J. Super. 442, and the Rule and cases did not contemplate the impact of an ineligibility term or order of sentence imposition might have on the real time consequences of a sentence. Moreover, as already noted, to encourage the simultaneous disposition of charges, the Code of Criminal Justice provides that anyone who is sentenced for a crime occurring before a prior sentence is to receive "gap-time" credit for the period of time defendant spent in custody between the prior and new sentence. N.J.S.A. 2C:44-5(b)(2). The Code, thus, seeks to promote disposition of all open charges against a defendant to expedite any incarceration and rehabilitation.

Around the same time as the Code was adopted, the Judiciary, with the participation of the Attorney General, New Jersey State Bar Association, and Public Defender, sponsored the 1980 and 1986 Judicial Conferences devoted to the promotion of speedy trials in criminal cases. See Reports of Task Force on Speedy Trial, "An approach to expeditious processing of criminal cases," 105 N.J.L.J. 521 (June 5, 1980); Report of Task Force on Speedy Trial, 117 N.J.L.J. 747 (June 5, 1986). As a result of the conferences and subsequent developments, our rules were amended to promote more expeditious processing and disposition of criminal cases. For example, Rule 3:25A-1 was adopted to promote the simultaneous disposition by plea of charges pending in several counties. See ibid. Hence, sentencing on all open cases could be simultaneously imposed where, as here, they were disposed by plea.

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. Yet that may be the consequence of a rule which does not provide credits for all time spent in custody between arrest and imposition of the first sentence. Had Ms. Hernandez remained in Passaic County before entering her plea and being sentenced in Ocean County, or had she been returned to Passaic immediately after her plea was entered in Ocean, and was sentenced in Passaic first, all time spent in presentence custody would have reduced the parole ineligibility term imposed in Passaic, whereas it did not under the sentence imposed, merely because she was sentenced in Ocean first. 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. In any event, in this case the defendant remained in custody on the Passaic charges while in Ocean County. It appears that she did not make bail and was simultaneously in custody on the charges filed in both counties until she was sentenced in Ocean. Accordingly, Ms. 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 (at which time her custodial status changed by virtue of the fact she began to serve a sentence).

There is nothing new or extraordinary in this holding. Prior to sentencing on pending charges, a defendant accrues and is entitled to jail credits for time spent in custody, but once the first sentence is imposed a defendant is only entitled to gap-time credits for time accrued thereafter when sentenced on the other charges.

The same principles apply to the Rose matter. Unless part of a negotiated agreement, the amount of real time to be served on a sentence should not depend on which matter is disposed first, if they are not simultaneously disposed, or even on the prosecutor's joinder practice.*fn18 If multiple charges are embodied in a single indictment and two or more counts are disposed of, the total amount of jail credits reduces the aggregate custodial sentence imposed. After all, the aggregate number of jail credits is listed at the bottom of the judgment embodying one or more convictions. R. 3:21-5.*fn19 If two thefts or CDS offenses are deemed part of a single transaction embodied in one indictment, the credits might have different consequences if the same consecutive sentences are embodied in a single judgment than if they are embodied in separate indictments and the credits applied only to one. The credits applicable to each might depend on whether the judge, prosecutor, bail unit, or even the defendant moved to revoke bail on the first matter after the defendant was arrested on the second or subsequent charge. The issue of credits simply cannot turn on such happenstance. In fact, the record in the Rose case omits any consideration of the fact that in accepting Rose's guilty plea, the judge consolidated bail. Rose was, at least from that point of time, in custody on all three matters and traditionally entitled to "jail credits" on all charges thereafter.

Accordingly, we interpret 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.*fn20 The Rule must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits. Both can promote sentence disparity based on the lack of uniformity in exercising discretion. Thus, such discretion avoids the very equal protection the Rule was designed to promote.*fn21

V.

Our dissenting colleagues make some statements that we feel compelled to address. In so doing, we agree that the Rule should be interpreted and applied in a consistent and uniform manner. However, many of the cases cited by our dissenting colleagues for support of a consistent application of the Rule present factual scenarios that are very different from those presented by Hernandez and Rose.*fn22

While we acknowledge that State v. Allen, supra, 155 N.J. Super. at 484-85, appears to hold otherwise, a defendant in jail pending trial in one county subject to a detainer on charges in another county must receive jail credits under Rule 3:21-8 for that time on both charges if ultimately sentenced on both. We decline to rely on one Appellate Division case to hold otherwise. To the extent our opinion conflicts with Allen, we disapprove of that decision.

The dissent also states that we have "simply elected to transform time that should be counted as gap time under the statute . . . into jail credit to be awarded under the Rule." However, we emphasize that once the first sentence is imposed, a defendant only accrues "gap-time" credits for time served thereafter when sentenced on the other charges. Thus, our holding does not covert gap-time credits into jail credits.

Finally, while we recognize that sentencing and appellate courts must "be mindful of the real-time consequences of NERA and the role that it customarily plays in the fashioning of an appropriate sentence," State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.), certif. denied, 182 N.J. 142 (2004), that principle does not control our disposition. This appeal presents our first relevant inquiry into the meaning of Rule 3:21-8 in these circumstances -- in one NERA and one non-NERA case. In deciding the case, we emphasize we are dealing with a court rule; there is no relevant legislative history for the dissent's proposition that the Legislature relied on prior interpretations of the Rule in adopting the gap-time statute. See II Commentary, Final Report of the New Jersey Criminal Law Revision Commission (1971) 2C:44-5; see also "A Review of the Legislative History of the New Jersey Code of Criminal Justice," including statements to 1978 enactment and 1979 revisions, 7 Crim. Just Quart 28-100 (1980). Moreover, the lack of legislative history has led us to recognize that "gap-time credits remain 'a riddle wrapped in a mystery inside an enigma.'" Booker, supra, 136 N.J. at 267 (quoting State v. Edwards, 263 N.J. Super. 256, 262 (App. Div. 1993)). Legislative history concerning gap-time credits simply does not support the dissent's interpretation of the jail credit rule.

Today we simply clarify the manner in which jail credits, which are earned prior to the imposition of the first custodial sentence, are to be awarded with respect to multiple charges. Again, once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8.

The matters are remanded for reconsideration of the award of jail credits consistent with this opinion. To the extent the opinion may be deemed inconsistent with a prior interpretation of Rule 3:21-8, and because negotiated pleas and sentences in the "pipeline" were possibly based on a different understanding of the Rule, this opinion 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. See, e.g., Natale, supra, 184 N.J. at 492-96; Booker, supra, 136 N.J. at 261.

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 RIVERA-SOTO joins.

SUPREME COURT OF NEW JERSEY

A-64/65 September Term 2009

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.

JUSTICE HOENS, dissenting.

Through the use of a single sentence embodied in Rule 3:21-8, this Court has defined a straightforward mechanism to award defendants credit for time spent in custody prior to imposition of sentence following a conviction. Its spare and simple language bears recitation: "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." Ibid.

Commonly called jail credit, the method set forth in our Rule has long served the overarching goals of our sentencing statutes, while protecting defendants' due process and equal protection rights. The Rule governing jail credit provides "day-for-day credits," see Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006), through which time spent in custody relating to a particular charged offense is counted toward the eventual sentence on that offense, including any period of parole ineligibility that has been imposed, thus reducing the time remaining to be served, see Booker v. N.J. State Parole Bd., 136 N.J. 257, 263-65 (1994); State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied, 146 N.J. 569 (1996). Its operation is different from, and it serves a different purpose than, gap time credit, see N.J.S.A. 2C:44-5(b), which is a statutory mechanism that provides credit toward a second-imposed sentence for time spent serving an earlier one, see Booker, supra, 136 N.J. at 260, but which does not reduce a period of parole ineligibility, see id. at 261 (concluding that legislature intended parole disqualification period to be "'an absolute term, against which there are to be no credits (other than jail credits)'") (quoting Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993) (citing N.J.S.A. 30:4-123.51a)).

The wording of the jail credit Rule, which leaves no doubt about its meaning or about the manner in which it operates when multiple charges or offenses are addressed in separate sentencing proceedings, has been stated repeatedly and applied consistently. Twice in the past this Court has taken the opportunity to emphasize the meaning of Rule 3:21-8 through published opinions, each time making precise our intention about its operation. See State v. Carreker, 172 N.J. 100, 115 (2002); State v. Black, 153 N.J. 438, 456 (1998). Our holdings were explicit about the meaning of the Rule and we expressly limited its award of jail credit*fn1 by permitting it to apply "only for such confinement as is attributable to the arrest or other detention resulting from the particular offense." Black, supra, 153 N.J. at 456 (citations and internal quotations omitted).

Consistent with that understanding of the Rule, we refused to allow jail credit to a defendant who, while serving a sentence imposed in New York, was returned to this State pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. See Carreker, supra, 172 N.J. at 115. Even though defendant's presence here was for the purpose of awaiting trial on New Jersey charges, and even though defendant was eventually sentenced on those charges, she was not entitled to jail credit for that time. Ibid. Instead, we reasoned that because the IAD required that she continue to serve her New York sentence as a condition of her transfer, see N.J.S.A. 2A:159A-5(f), she was not held here because of the then-pending New Jersey charges, with the result that jail credit toward her eventual New Jersey sentence was not available under our Rule, see Carreker, supra, 172 N.J. at 115.

The decisions by this Court confirmed an understanding of the Rule that had been utilized by our trial and appellate courts in a long line of published opinions dating back decades. Those opinions were entirely uniform both in their reading and in their application of the Rule, regardless of the claims being raised by defendants seeking a new or different interpretation. One and all, they held, and we agreed, that the Rule is strictly limited in its application, explaining, for example, that "[w]hile R. 3:21-8 speaks in terms of credit for time spent in custody between arrest and sentencing, it is clear that the confinement must be 'directly attributable' to the particular offense for which the credits apply." State v. Jones, 184 N.J. Super. 626, 629 (Law Div. 1982).

From the very earliest analysis of Rule 3:21-8, our appellate courts have consistently interpreted it to limit the application of jail credits to the particular offense or offenses for which there was confinement or detention. See, e.g., State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.) (holding that defendant who was captured and held in custody in the United Kingdom based on New Jersey warrant was entitled to jail credit for that time in custody following conviction of charge that supported warrant), certif. denied, 192 N.J. 68 (2007); State v. Dela Rosa, 327 N.J. Super. 295, 298 (App. Div.) (holding that transfer from New York to appear on Bergen County indictments pursuant to IAD did not qualify for jail credit on sentence following New Jersey conviction), certif. denied, 164 N.J. 191 (2000); In re Hinsinger, 180 N.J. Super. 491, 499-500 (App. Div.) (holding that defendant arrested and held as material witness was not entitled to jail credit against sentence for contempt when he refused to testify), certif. denied, 88 N.J. 494 (1981). Simply put, Rule 3:21-8 only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration.

Our courts have been uniform and consistent in the application of the Rule governing jail credits. For example, they have granted credit against a New Jersey sentence if defendant was held in another state's institution longer than he otherwise would have been because of a New Jersey detainer, see State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974), but not if the detainer was unrelated to the reason that defendant remained incarcerated elsewhere, see State v. Council, 137 N.J. Super. 306, 308-09 (App. Div. 1975), and not if defendant elected to be brought to New Jersey pursuant to the IAD and, while being held here, continued to be credited for time on a federal sentence, see State v. Mercadante, 299 N.J. Super. 522, 531 (App. Div.), certif. denied, 150 N.J. 26 (1997).

Similarly, the appellate courts have concluded that the Rule does not operate to treat jail time as if it were "money on deposit in the bank or a credit card, it may not be drawn on or credited for penalties imposed" for other unrelated crimes. State v. Marnin, 108 N.J. Super. 442, 445 (App. Div. 1970) (refusing to grant credit for earlier-served time on unrelated illegal sentence), certif. denied, 59 N.J. 435, cert. denied, 400 U.S. 835, 91 S. Ct. 70, 27 L. Ed. 2d 67 (1971); see State v. Hill, 208 N.J. Super. 492, 494-95 (App. Div.) (declining to read Rule to create credit for jail time spent awaiting trial on indictment that was eventually dismissed so that it could be used to reduce sentence imposed on charges in another county as to which detainer had been filed), certif. denied, 104 N.J. 412 (1986).

Not only is our existing jurisprudence consistent, but there is nothing unusual about the way in which the Rule should operate in the two unrelated appeals that the Court consolidated for consideration in this appeal. Defendant Hernandez, facing sentences imposed for convictions in two different counties, and defendant Rose, charged with multiple crimes in more than one indictment in a single county, present familiar fact patterns in which the Rule has been interpreted previously. Until today, the Rule has been applied to such fact patterns to limit jail credit so that it only applies to the sentence for the particular offense to which incarceration was directly attributable.

The circumstances presented by defendant Hernandez were addressed, for example, in State v. Allen, 155 N.J. Super. 582 (App. Div.), certif. denied, 77 N.J. 472 (1978). There, the Appellate Division considered the Rule's operation as to a defendant held in Somerset County on charges brought there, who was then convicted in Middlesex County, following which he returned to Somerset County and entered a guilty plea to the original charges. Id. at 583. The court reasoned that defendant, who was granted jail credits against the Somerset sentence for the time spent in the Somerset County jail, was not also entitled to credit for the same time as against his Middlesex County sentence. The court explained its decision by noting that "[t]o give him credit for the 127 days in both counties would bestow upon him impermissible double credit. R[ule] 3:21-8 was never so intended." Id. at 585.

Likewise, the fact pattern posed by defendant Rose is not unlike the far more complicated scenario addressed in State v. De Rosa, 332 N.J. Super. 426 (App. Div. 2000). There, the appellate panel, faced with numerous charges that resulted in convictions arising from both guilty pleas and jury trials, carefully analyzed the basis on which defendant had been incarcerated during a lengthy period of time, in order to determine which periods were eligible for jail credit against which eventual sentences and which periods of incarceration should instead result in an award of gap time. Id. at 429-31. As complicated as that analysis was, the court remained faithful to the essential purpose and operation of Rule 3:21-8.

To be sure, there has always been room in the analysis of the Rule for the possibility that unusual circumstances might provide a ground for the award of jail credits even though the strict operation of the Rule as traditionally understood would not support it. See State v. Grate, 311 N.J. Super. 456, 459 (App. Div. 1998) (agreeing with Law Division's reasoning that "defendant's incarceration, even if not directly a consequence of the arrest in this case, was nevertheless fairly attributable to the indictment on which he was eventually sentenced"). Similarly, there has always been a recognition that unfair tactics by a prosecutor that were designed to maximize time to be served could support a different interpretation of the Rule's operation, see Carreker, supra, 172 N.J. at 105, although we have not had occasion to so apply it. Absent such unusual and compelling circumstances, however, neither we nor our appellate courts have varied from interpreting the Rule to limit the award of jail credits to time that can be directly attributed to a particular offense.

These numerous opinions, notably, post-dated the adoption of our Code of Criminal Justice and, therefore, proceeded in full awareness of the impact of our interpretation of the Rule on overall sentencing consequences. Even so, the majority's approach springs from a new-found belief that there is something unfair about the way the Rule and the gap time statute operate when an offender is subject to a sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and that it is of sufficient magnitude that it must now be addressed through a rather radical and unprecedented change in the way in which jail credits are awarded. Indeed, although "adher[ing] to Richardson [v. Nickolopoulos, 110 N.J. 241, 254-55 (1988)], and Booker and reject[ing] Hernandez's contention that her gap-time credit should reduce her parole bar," ante at ____ (slip op. at 20), the majority has simply elected to transform time that should be counted as gap time under the statute, see N.J.S.A. 2C:44-5(b)(2), into jail credit to be awarded under the Rule.

It is curious, to say the least, that in making that dramatic leap,*fn2 the majority has chosen as its vehicle one offender for whom its pious exhortation about the "real time consequence" of a NERA sentence has no relevance. Defendant Rose, who does not face a NERA sentence, thus becomes the beneficiary of a new interpretation of the Rule that rests on no particular rationale. In reality, the majority simply no longer cares for the manner in which the gap time credit statute and Rule operate and wishes to create something more advantageous to all defendants. That the Court supports that result by pointing to what it perceives to be unfairness to offenders facing NERA sentences translates into a disregard for the Legislature's contrary view about sentencing of those offenders. Instead of remaining faithful to the statutory framework applicable to those who have been convicted of multiple serious crimes, and who the Legislature has commanded are subject to substantial mandatory periods of parole ineligibility, the Court today confers upon them a lesser punishment.

That many offenders facing a NERA sentence will receive little reduction in the time they will actually serve through gap time is a fact. So, too, is the far more favorable treatment that they would obtain were we to apply instead the jail credit Rule to that time. But both of those realities, along with the manner in which our Rule has long calculated jail credits, are facts about which we must presume the Legislature is fully aware. See State v. Fleischman, 189 N.J. 539, 550 (2007) (relying upon "established principle of statutory interpretation that the Legislature is presumed to act with knowledge of the judicial construction given to predecessor or related enactments"); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 51:1 at 203 (7th ed. 2008). Since NERA's adoption in 1997, the Legislature has not seen the need to address the operation of the two distinct kinds of credit nor has it elected to amend the gap time statute so that it operates to reduce the parole ineligibility period required under NERA. Surely, if the impact of the various kinds of credit in the context of a NERA sentence worked in a manner inconsistent with the Legislature's will, it would have acted to correct our long-standing application of the relevant statutes and our Rule.

The reason for the Rule's operation is simple and straightforward; any other interpretation leads directly to either double counting or to authorizing "free crimes" because time served at any time and for any offense becomes time served toward every offense, regardless of when it was committed. Nonetheless, against this clear and easily applied understanding of the Rule, and without even a hint of the kinds of foot-dragging or game-playing or overarching unfairness that might support a limited exception, the majority today embarks upon a new approach. For no apparent reason other than a change of mind, the majority now announces that time served on any offense will count as time served on all offenses. Although the majority implies that there is something in the operation of NERA that somehow makes our traditional reading of the Rule unfair or inconsistent with the statutes governing sentencing, the rationale behind this new reading of the Rule is nothing more than an effort to minimize the time that any offender will serve.

In the end, the majority has thwarted, and not enforced as it should, the expressed will of the Legislature; it has in fact concluded that the worst offenders in our 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. Effectively, the majority has, at least for this category of offenders, created the circumstance in which, contrary to the clear meaning of the statute, time that the statute regards as gap time is transformed into jail credit, counting against the NERA parole ineligibility period.

There being no basis in the Rule or any of the sentencing statutes on which to make so radical a change in interpretation, and that change being contrary to the Legislature's clear intent as expressed both in NERA and in the gap time credit statute, I respectfully dissent.

JUSTICE RIVERA-SOTO joins in this opinion.

SUPREME COURT OF NEW JERSEY

NO. A-64/65 SEPTEMBER TERM 2009

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREA HERNANDEZ, a/k/a ANDREA ROSARIO, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK WAYNE ROSE, a/k/a DERRICK W. STEWART, Defendant-Appellant.

DECIDED June 8, 2011

Chief Justice Rabner PRESIDING

OPINION BY Judge Stern (temporarily assigned)

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY Justice Hoens

CHECKLIST REMAND AFFIRM

CHIEF JUSTICE RABNER X JUSTICE LONG X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE RIVERA-SOTO X

JUSTICE HOENS X

JUDGE STERN (t/a) X

TOTALS 5 2


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