Opinion
DOCKET NO. A-4605-12T1 DOCKET NO. A-4615-12T1 DOCKET NO. A-4617-12T1
11-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. JAMES KING a/k/a SAMMIE DOBSON, Defendant-Appellant/Cross-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. JAMES HOLMES, Defendant-Appellant/Cross-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. ANTHONY PETERSON, Defendant-Appellant/Cross-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent James King (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent James Holmes (Monique Moyse, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent Anthony Peterson (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent/cross-appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-0818, 11-05-0835, 11-05-0837, and 11-05-0836. Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent James King (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent James Holmes (Monique Moyse, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent Anthony Peterson (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent/cross-appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
These back-to-back appeals, consolidated for purposes of issuing a single opinion, involve convictions for offenses arising out of co-defendants' James King, James Holmes, and Anthony Peterson involvement in a 2009 bank robbery. Defendants appeal the denial of their motions to dismiss the indictments for violation of their rights to a speedy trial. The State cross-appeals from the judgment of conviction, specifically, challenging 1509 days of jail credit granted to defendants. We have considered the parties' arguments in light of the record and applicable legal standards, and we affirm.
I.
We glean the following facts from the record. On the evening of March 12, 2009, defendants entered the Bank of America at 1229 Route 27 in Franklin Township, Somerset County, just before closing, heavily armed and wearing masks. At gunpoint, defendants instructed patrons to get down on the floor. Peterson maintained control over the entrance and lobby, while Holmes demanded and received money from a bank teller. At the same time and also at gunpoint, King disarmed the security guard and demanded that another bank employee open the vault so he could take money from inside. Defendants stole approximately $93,000 from the bank, escaping in a stolen Jeep, driven by James Phillips. After driving to a nearby apartment complex, defendants abandoned the Jeep for a green minivan.
Responding to a reported bank robbery in progress, North Brunswick Police Detective Steven Dunkel, spotted the minivan and began pursuit. To avoid capture, defendants exchanged gunfire with Dunkel during the chase. Additional police officers joined the chase through several towns, finally cornering defendants in New Brunswick, Middlesex County. A gun battle ensued when defendants exited the minivan, attempting escape. Holmes, King, and Phillips all suffered gunshots wounds. Peterson suffered an asthma attack. Defendants were arrested at the scene and taken to a local hospital for medical treatment. Phillips subsequently died from his wounds on April 4, 2009.
Following arrest and release from the hospital, defendants were sent to the Middlesex County Adult Correction Center (MCACC). Bail was set at two million dollars, and was not posted.
A subsequent federal indictment, returned on April 8, 2009, charged defendants with conspiracy, bank robbery, and use of a firearm during a crime of violence. The next day, the Somerset County Prosecutor's Office, pursuant to Rule 3:25-1, administratively dismissed complaints for offenses occurring in Somerset County against defendants for first-degree robbery, second-degree weapons offenses, and second-degree conspiracy to commit robbery, in deference to prosecution by the United States Attorney. However, the Middlesex County Prosecutor's Office did not dismiss complaints for first-degree attempted murder, second-degree eluding, and second-degree possession of weapons for unlawful purposes, all offenses occurring in Middlesex County.
On October 29, 2010, Holmes pled guilty to the federal charges. On November 9, 2010, King and Peterson were tried in federal court. The jury found King and Peterson guilty on all charges. On May 13, 2011, King was sentenced to an aggregate prison term of 345 months. Almost two weeks later, Peterson was sentenced to an aggregate term of 643 months. Holmes was not sentenced until September 7, 2011, when he was given an aggregate term of 335 months in federal prison.
On May 25, 2011, the day following Peterson's federal sentencing, and twenty-six months after the defendants were arrested, a Middlesex County Grand Jury charged all three defendants, under Indictment No. 11-05-0818, with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1, for a bank and a security guard (counts two and three); second-degree theft of bank monies, N.J.S.A. 2C:20-3 (count four); and second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); third-degree theft - receiving a stolen automobile (two different vehicles), N.J.S.A. 2C:20-7 (counts six and seven); third-degree theft - receiving stolen property, N.J.S.A. 2C:20-2 and N.J.S.A. 2C:20-7 (count eight); second-degree unlawful possession of a weapon without a permit (four different weapons), N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4 (counts nine, ten, eleven, twelve); third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(b) (count thirteen); second-degree possession of a weapon for unlawful purpose (five different weapons), N.J.S.A. 2C:39-4(a) (counts fourteen, fifteen, sixteen, seventeen, and eighteen); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e) (counts nineteen and twenty); third-degree possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count twenty-one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1)-(2) (counts twenty-two, twenty-three, and twenty-four). In addition, under separate indictments, defendants were each charged with five counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (counts one to five). Prior to the indictments there were unsuccessful plea negotiations between defense counsel and the State. The State offered lengthy prison terms that were concurrent with the federal prison sentences.
King was charged under Indictment No. 11-05-0835; Peterson under indictment No. 11-05-0836; and Holmes under Indictment No. 11-05-0837. The indictments contained identical charges, and hereinafter, are collectively referred to as Indictment No. 11-05-0835.
On September 24, 2012, sixteen months after being indicted, and almost three-and-one-half years after defendants were arrested, Peterson filed a motion to dismiss the indictment based on lack of speedy trial, or alternatively, to bar prosecution of certain counts due to double jeopardy. King and Holmes joined in the motion.
The alternative argument of double jeopardy sought to dismiss the offenses that occurred in Somerset County which were administratively dismissed. The motion was denied but was not appealed.
The trial court denied the motions on February 26, 2013, almost four years following defendants' arrest. Two weeks later, on March 12, 2013, defendants pled guilty to first-degree armed robbery (count three) and first-degree attempted murder (counts twenty-two, twenty-three, and twenty-four) under Indictment No. 11-05-0818 and second-degree certain persons not to have weapons (count one) under Indictment No. 11-05-0835.
On April 29, 2013, in accordance with the plea agreements, defendants were sentenced to aggregate twenty-year terms of incarceration, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on counts three, twenty-two, twenty-three, and twenty-four of Indictment No. 11-05-0818. Defendants were also sentenced to a concurrent ten-year term of incarceration on count one of Indictment No. 11-05-0835, subject to a five-year period of parole ineligibility. All state sentences were to run concurrent with the federal sentence defendants were serving. The court also awarded each defendant 1509 days of jail credit for time served between the arrest and the sentencing in state court. The parties agreed that the State reserved the right to appeal jail credits awarded for the period following the date of the federal sentence and defendants could not withdraw their guilty pleas in the event the State was successful in reducing the jail credits.
From the day of their arrest, to the day of their sentencing on state charges, defendants were housed in state custody in Middlesex County Adult Correctional Center. In accordance with the plea agreements, following their sentencing, defendants were to be released to their federal detainer to serve federal sentences. There is no indication in the record that the defendants were housed by the State for federal custody purposes.
This was specifically stated in Peterson's and Holmes' plea agreements, but not in King's plea agreement. Given that King's confinement was similar, as were his plea terms, we presume he was also on a federal detainer and was to be placed in federal custody following state sentencing.
This appeal by the defendants and the State's cross-appeal followed. Before us, defendants raise the following argument:
POINT I
THE TWENTY-SIX MONTH DELAY BETWEEN DEFENDANTS' ARREST AND INDICTMENT VIOLATED THEIR CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
On cross-appeal, the State presents this point of argument:
POINT I
THE SENTENCE IMPOSED WAS ILLEGAL; THE AWARD OF JAIL CREDITS WAS NOT AUTHORIZED BY LAW.
II.
We first turn to the defendants' contention in their appeal that the trial court erred in denying their motion to dismiss their indictment because the State violated their Sixth Amendment right to a speedy trial. A decision to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmburn, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed only on the clearest and plainest grounds, where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). A trial court must dismiss an indictment if prosecution would violate the defendant's constitutional rights. State v. Abbati, 99 N.J. 418, 425 (1985).
Defendants contend that the twenty-six month delay between their arrest and indictment violated their right to a speedy trial afforded by the Sixth Amendment and Rule 3:25-3. The determination of whether a defendant's rights have been violated is based upon the four-factor balancing analysis set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). See State v. Cahill, 213 N.J. 253, 258 (2013) ("We conclude that the four-factor balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial in all criminal and quasi-criminal matters."). The four non-exclusive factors that a court should evaluate whether a defendant has been denied his right to a speedy trial are: (1) length of the delay, (2) reason for the delay, (3) assertion of the right by a defendant, and (4) prejudice to the defendant. Id. at 264 (citing Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L.Ed.2d at 117). No one factor is determinative of whether a right to a speedy trial has been violated. Id. at 267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L.Ed.2d at 118).
Our Court has further adopted a rule requiring the prompt presentation of charges. "Rule 3:25-3 permits dismissal for an unreasonable delay in presenting a charge to a grand jury or in filing an accusation against a defendant who has been held on a complaint." Id. at 269. "We have declined, however, to fix a date certain after which prejudice is presumed or the complaint or indictment must be dismissed, preferring instead to evaluate each claim of denial of a speedy trial on a case-by-case basis." Ibid.
Defendants argue that a proper balancing of the four Barker factors establish a violation of their right to a speedy trial. The State asserts that the trial judge carefully considered and properly applied each Barker factor in denying defendants' speedy trial motion. For the reasons that follow, we conclude that the judge did not abuse his discretion in denying defendants' speedy trial motions.
Regarding the first factor, the length of delay, there is no specific amount of time after which "a criminal charge would be subject to dismissal." Id. at 264 (citing Barker, supra, 407 U.S. at 523, 92 S. Ct. at 2188, 33 L.Ed.2d at 112-13). The right to a speedy trial attaches upon a defendant's arrest. State v. Douglas, 322 N.J. Super. 156, 170 (App. Div. 1999) (citing Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975)). Whether the delay is presumptively prejudicial depends on the nature of the charges and the customary time required to dispose of the charges. Cahill, supra, 213 N.J. at 264-65 (citing Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2191, 33 L.Ed.2d at 117). The court must consider "the amount of time customarily required to dispose of similar charges, and the defendant has the obligation to establish that customary period." Id. at 265 (citing Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 2690-91, 120 L.Ed.2d 520, 528 (1992)).
Defendants argue that the twenty-six month delay between the date of their arrest and the State's indictment is excessive for the single incident of a straightforward armed bank robbery. Although the record is devoid of any demonstration by the defendants regarding the customary time to present such charges to a grand jury, the trial court failed to determine whether the delay was "presumptively prejudicial." In our view, twenty-six months to indict defendants was lengthy for an armed robbery and attempted murder when they were arrested immediately after the incident following a car chase and gun battle, and requires consideration of the other Barker factors. See Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L.Ed.2d at 117)("[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge."); cf. Cahill, supra, 213 N.J. at 273 ("Sixteen months elapse[] from remand to the municipal court until notice of the first trial date" for driving while intoxicated charge "is long enough to trigger consideration of the remaining Barker factors.").
Turning to the second factor, reasons for the delay, the State contends that its presentation to the grand jury was due to the decision to wait until the federal charges were resolved and was done within the statute of limitations. Defendants argue that there was nothing about pendency of the federal charges that limited the State from presenting its allegations to a grand jury. The trial court found that, at least part of the reason for the delay was that the State waited until the federal prosecution concluded, and contrary to defendants' contention, the State was not seeking prison terms consecutive to the federal sentences. The court also found that despite being "housed" in state custody (MCACC), defendants were not available to the State's prosecution because they were undergoing "federal process and federal trial." In addition, the court noted that defendants were indicted within the five-year statute of limitation.
Defendant Holmes points out that he pled guilty to the federal charges on October 29, 2010 but was not indicted on state charges until after his co-defendants had been tried and were sentenced in federal court on May 25, 2011. However, unlike his co-defendants, Holmes was not sentenced until September 7, 2011. --------
Once the right to a speedy trial is asserted, the State must identify the reason for the delay. Id. at 266 (citing Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117). In weighing the reasons for delay, weight varies depending on the different explanations for delay of a case. Barker supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. "A deliberate attempt to delay the trial in order to hamper the defense is heavily weighed [more] against the government[,]" than "a more neutral reason such as negligence or overcrowded courts", albeit no matter the reason for delay, the ultimate responsibility to prosecute a case rests with the state. Ibid.
Here, we disagree with the trial court's consideration that the charges were brought within the statute of limitations weighed in the State's favor. There is no precedent to support such consideration. We also part company with the court's finding that defendants were not available to State prosecution because of the federal prosecution. We see no indication in the record that the State could not have presented its allegations against defendants to a grand jury at the same time the federal charges were being prosecuted. We cannot speculate whether the State would have been hampered in going to trial because the State pursued a different strategy. Despite these assessments, we do not conclude the reasons for delay weigh heavily against the State. The record does not suggest that State's delay was deliberate or intended to prejudice defendants. The State clearly wanted, or allowed, the federal government to proceed first with its prosecution. And, as discussed below, we believe that defendants did not object to the State's reasons to delay its prosecution.
We next address the third factor, the defendants' assertion of their rights. "A defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial." Cahill, supra, 213 N.J. at 266 (citing Barker, supra, 407 U.S. at 527, 92 S. Ct. at 2190, 33 L. Ed. 2d at 115). Although a defendant's delay in demanding a speedy trial does not constitute a waiver of his right, his "assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." Barker, supra, at 528, 92 S.Ct. at 2191, 33 L.Ed.2d at 115.
Based upon our review of the record, it appears that defendants were content with the State's decision to withhold its prosecution until the federal charges were resolved. As noted, they waited for almost three-and-one-half years after their arrest and continuous confinement, including a delay of sixteen months after they were indicted by the grand jury, to file their speedy trial motions. During this waiting period, they were fully aware that the State was still moving forward on its charges. Thus, we find this factor weighs against the defendants.
Lastly, we consider the fourth factor, prejudice to defendants, which is assessed in a light most favorable to defendants, whose interests the right is designed to protect. Cahill, supra, 213 N.J. at 266 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2193, 33 L.Ed.2d at 118). "Those interests include prevention of oppressive incarceration, minimization of anxiety attributable to unresolved charges, and limitation of the possibility of impairment of the defense." Id. (citing Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118).
Defendants argue that, although the federal proceedings were completed, the delay in the state charges caused anxiety because they faced more serious charges such as attempted murder. In particular, Holmes contends that if the State indicted him without delay, both the state and federal charges would have been resolved close in time. As a result, his jail time credits would not be in jeopardy in this appeal.
The trial court determined that defendants failed to show prejudice when it stated:
there's been no argument of lost witnesses, no argument there's spoiled evidence, and, in fact, having gone through one trial, one could reasonably infer that the availability of additional transcripts of prior statements would inure to their benefit, not their detriment. They can use these transcripts for impeachment purposes, and this Court cannot find any legitimate, discrete prejudice inured to the defendants' detriment.
We agree with the court's findings that the defendants did not show any prejudice caused by the delay in the State's prosecution. We add that, we accept that defendants would experience some measure of anxiety facing unresolved charges of attempted murder; however, we suspect it would be tempered by the fact each defendant served prison time for prior felony convictions. Moreover, the fact that they waited a significant time before filing their speedy trial motions undermines their claims of anxiety. Also, the plea agreements with the State that their sentences run concurrent with the federal prison time weigh against defendants' claims that the delay prejudiced them. In fact, the State had offered concurrent terms before defendants were indicted on the State charges.
In sum, balancing all four Barker factors leads us to conclude that there was no violation of defendants' right to a speedy trial.
III.
We now turn to the State's cross-appeal arguing that defendants were not entitled to jail credits for the time period between their federal arrest to their state court sentencing pursuant to State v. Hernandez, 208 N.J. 24 (2011). The State argues that under State v. Carreker, 172 N.J. 100, 115 (2002), defendants are not entitled to jail credit, but gap time credit, pursuant to N.J.S.A. 2C:44-5(b)(2), from the date of their federal sentence to the date of their state sentencing in this case. The State contends that based upon Booker v. New Jersey State Parole Board, 136 N.J. 257, 267 (1994), the trial court converted gap time credit, for the time period from the date of their federal sentences to their date of state sentences, to jail credit, in violation of N.J.S.A. 2C:44-5(b)(2). In doing so, the trial court reduced the defendants' real time sentence because gap time credit only reduces the aggregate term to be served after serving the mandatory period of incarceration. Defendants argue that the award of jail credits is in keeping with Hernandez and the trial judge repeatedly expressed his intention that they were entitled to receive credit for time served during the delay of their state charges while the federal charges were being prosecuted.
The award of jail credits raises issues of law that we review de novo. Hernandez, 208 N.J. at 48-49 ("[T]here is no room for discretion in either granting or denying [jail] credits."). Jail credits are governed by Rule 3:21-8, which states: "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."
In Hernandez, the Court held that "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." Hernandez, supra, 208 N.J. at 28 (quoting R. 3:21-8). The defendants sought "jail credit for time spent in presentence custody on multiple charges," but were not "seeking jail credits for time accrued after imposition of a custodial sentence." Id. at 45. The Court noted, "[w]e 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." Ibid. The Court concluded "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." Id. at 50.
However, the present facts differ from Hernandez. The dispute there dealt with a situation where all the charges the defendant faced were state offenses in New Jersey. Id. at 28. Here, defendants' offenses involve the same bank robbery incident, but they faced prosecution in two separate jurisdictions - federal and state court. Thus, State v. Council, 137 N.J. Super. 306 (App. Div. 1975), is more instructive in determining defendants' entitlement to jail credits.
In Council, the defendant was serving a federal sentence when New Jersey officials issued a bench warrant as a detainer. Almost a year later, while still serving his federal sentence, defendant was transferred to state custody where he was confined until sentenced on state charges. Id. at 308. The trial court refused his request for jail credit covering the time period from the date the bench warrant was issued to his State sentencing. Ibid. We affirmed, concluding that Rule 3:21-8 provides for jail credit "only to such confinement as is attributable to the arrest or other detention resulting from the particular offense." Id. (citations omitted). Since the defendant's federal incarceration was "for an unrelated offense" and that the detainer did not "lengthen[] his stay" in federal custody, we could not "speculate that the detainer might have had an adverse effect on defendant's eligibility for parole." Id. at 309. We also determined that the defendant was not entitled to credit for time spent in temporary state custody while awaiting disposition of his state charge. Ibid. This is because during that time his federal sentence continued to run, and after state sentencing, he was returned to federal custody. Ibid. "When there is such transfer of temporary custody, the person already incarcerated suffers no additional restriction on his freedom." Ibid.
Since Council, we have been steadfast in denying jail credits for a period of incarceration that a defendant is primarily serving another sentence. In State v. Hugely, 198 N.J. Super. 152, 160-61 (App. Div. 1985), we held that the defendant was not entitled to jail credit under Rule 3:21-8 for serving time in New Jersey awaiting sentencing while he was serving his Florida sentence.
In State v. Dela Rosa, 327 N.J. Super. 295, 298 (App. Div. 2000), where the defendant's detention was not attributable to New Jersey indictments, but to a sentence in New York, he was not entitled to jail credits under Rule 3:21-8. Months later, in State v. De Rosa, 332 N.J. Super. 426, 429-30 (App. Div. 2000), we addressed the situation where the defendant was initially confined due to murder charges, and while awaiting disposition he was convicted and incarcerated on third and fourth degree offenses. We concluded that pursuant to Rule 3:21-8, the defendant was not entitled to jail credit for his murder conviction covering the time he served on the third and fourth degree offenses "that constituted the primary basis for incarceration." Id. at 430.
In State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div. 2007)(citations omitted), we held "credit is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed." Thus, where the defendant was held in foreign custody on a detainer for New Jersey charges, he was entitled to credit for that period. Id. at 71.
Applying these principles, we conclude that the trial court's award of jail credit did not violate Rule 3:21-8. Although serving sentences on federal charges before their state convictions, defendants were continuously confined in state custody for state charges at the MCACC since their arrest until state sentencing. As evidenced in the plea agreements, there was a federal detainer against defendants while they were in state custody. There was no indication that there was a state detainer while the federal charges were pending because the State always had control over the defendants. As noted, the only reason the State did not seek an earlier prosecution was because it was decided that the federal government would proceed first. In doing so, the federal government expended the resources to prosecute defendants, while the State held them in custody on its charges. Holmes' guilty plea, and the jury's guilty findings against King and Peterson, obviously had an impact on their subsequent decisions to plea to the state charges. Under these circumstances, defendants' confinement was primarily attributable to the state crimes and they are entitled to the jail credits awarded by the trial court.
In reaching this conclusion, we reject the State's contention that defendants should be entitled to gap time credit for the time after they were sentenced on federal charges up to the date of state sentencing. Gap-time credit is provided pursuant to N.J.S.A. 2C:44-5b(2) when a defendant previously sentenced to a term of imprisonment, "is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, 'the defendant shall be credited at the time of the second sentence for so much of the term of imprisonment as has been served on the prior sentence.'" Carreker, supra, 172 N.J. at 103 (quoting Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988)). Instead of being applied to front end of a sentence like jail credits, "gap-time credits are applied to the 'back end' of a sentence." Hernandez, supra, 208 N.J. at 38 (citing Booker, supra, 136 N.J. at 260). The overall purpose of the statute is "to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time." State v. L.H., 206 N.J. 528, 529 (2011) (citations and internal quotation marks omitted).
The State's reliance on Carreker for the proposition that defendants are entitled to gap-time credits is misplaced. There, the Court determined that N.J.S.A 2C:44-5b(2) does not authorize gap-time credit for time served on an out-of-state sentence while awaiting disposition on another state charge. Carreker, supra, 172 N.J. at 103. The statute awards gap-time credit for "'time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served[.]'" Id. at 111 (citing N.J.S.A 2C:44-5b(2)). By using "the term 'aggregate,' the Legislature intended that provision to relate solely to in-state sentences." Ibid. See also, L.H., supra, 206 N.J. at 549 n. 15 (stating "[t]he principle that a defendant must be incarcerated within New Jersey's criminal justice system to claim gap-time credit under N.J.S.A. 2C:44-5(b)(2)").
In this case, we are dealing with the time served on a federal sentence, not a New Jersey state sentence; thus, gap-time under N.J.S.A. 2C:44-5b(2) is not authorized. Furthermore, in light of our conclusion that the trial court properly awarded defendants jail credits for the entirety of their incarceration before the date of their state sentences, the underlying policy of gap-time credits to prevent the manipulation of trial dates to defendants' disadvantage was not undermined.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION