Submitted: February 25, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 11-11-2674 and 11-11-0139.
Joseph E. Krakora, Public Defender, attorney for appellant ( James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
Before Judges FISHER, ESPINOSA and O'CONNOR. The opinion of the court was delivered by FISHER, P.J.A.D.
[435 N.J.Super. 12] FISHER, P.J.A.D.
In appealing the judgments of conviction, defendant complains only of the trial judge's denial of 246 days of gap-time credit, which represents the time from his incarceration for a violation of probation until his sentence in these matters. The often knotty questions posed by gap-time credit disputes require particular attention to the details of the sentencing history in all related matters. To put those details into perspective, however, we first turn to the statute that authorizes the award of gap-time credit.
N.J.S.A. 2C:44-5(b)(2) directs that " [w]hen 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," and notwithstanding whether the judge imposes concurrent [435 N.J.Super. 13] or consecutive terms, " 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." In applying the statute here, we first observe that, on May 19, 2006, defendant was sentenced on a drug offense to a five-year probationary term conditioned upon his serving 120 days in the county jail in Indictment No. 06-01-0158 (" 158" ). As a result of a violation of the probationary
term, defendant was sentenced, on January 20, 2012, to a three-year prison term.
After the original sentence in 158, but prior to the disposition of defendant's violation of probation (VOP) in that matter, defendant was charged on November 3, 2011, with first-degree racketeering and other offenses in Indictment No. 11-11-0139 (" 139" ), and on November 30, 2011, with third-degree aggravated assault and other offenses in Indictment No. 11-11-2674 (" 2674" ). As noted above, on January 20, 2012, while these two indictments were pending, defendant was sentenced to a three-year term of imprisonment for violating the terms of probation contained in the 2006 judgment entered in 158. On September 24, 2012 -- approximately nine months after the sentence imposed for the VOP in 158 -- defendant pleaded guilty in 139 to second-degree racketeering, and in 2674 to third-degree aggravated assault; he was sentenced in the former to an eight-year prison term, with a four-year parole bar, and in the latter to a five-year prison term, with a two-year parole bar. These sentences were ordered to run concurrently with each other and with the sentence imposed on the VOP in 158.
Defendant argues that the trial judge erred in refusing to award gap-time credit for the period of time from January 20, 2012 (when the term of imprisonment was imposed in 158) through September 23, 2012 (the day before he was sentenced to terms of imprisonment in 139 and 2674).
[435 N.J.Super. 14] The Supreme Court has explained that the gap-time credit permitted by N.J.S.A. 2C:44-5(b) " 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." State v. Hernandez, 208 N.J. 24, 38, 26 A.3d 376 (2011). The Supreme Court has determined that the law's primary purpose " is to avoid the manipulation of trial dates to the disadvantage of defendants," Booker v. N.J. State Parole Bd., 136 N.J. 257, 260, 642 A.2d 984 (1994); see also Hernandez, supra, 208 N.J. at 38, 26 A.3d 376; State v. Carreker, 172 N.J. 100, 105, 796 A.2d 847 (2002), and to " counteract any dilatory tactics of the prosecutor" in pursuing a conviction for another offense once a defendant has been sentenced on an earlier offense, State v. Hall, 206 N.J.Super. 547, 550, 503 A.2d 344 (App.Div. 1985); see also Hernandez, supra, 208 N.J. at 38, 26 A.3d 376; Carreker, supra, 172 N.J. ...