STATE OF NEW JERSEY v. ELVI CASTRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1670-07T41670-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ELVI CASTRO,

Defendant-Respondent.

________________________________________________________________

 

Submitted October 15, 2009 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-04-0506.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for appellant (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

The State appeals from an amended judgment of conviction, arguing that the sentencing judge erred in increasing the credit for time defendant spent in custody pursuant to Rule 3:21-8.

Defendant Elvi Castro was arrested on assault charges on December 22, 2005, and, on December 28, 2005, posted bail in the amount of $100,000. Defendant was arrested on a robbery charge on January 6, 2006, and was unable to post the $250,000 bail set for that charge. On January 27, 2006, an order was entered that released defendant's bondsman from the recognizance on the original bail for the assault charges.

After a jury trial, defendant was convicted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and mutual fighting, a petty disorderly persons offense, N.J.S.A. 2C:12-1(a). Defendant's bail for these charges was reduced to $20,000 with a ten per cent option but he remained in custody until his sentencing on March 19, 2007.

The original judgment of conviction reflects that the court merged the weapons possession count and the petty disorderly persons offense into the fourth-degree aggravated assault and imposed an eighteen-month sentence upon defendant with credit for seven days spent in custody from December 22 to 28, 2005. The sentencing judge later granted defendant's motion for additional jail credits. The judgment of conviction was amended to award defendant credit for 424 days spent in custody, consisting of the original seven days and adding the time from the date the bondsman was released from the recognizance until defendant's sentencing.

The State's motion for reconsideration was denied. Initially, this appeal was presented on a sentencing calendar pursuant to Rule 2:9-11. This court determined that the matter was not ready for disposition on oral argument without briefs and postponed the appeal to a later date after full briefing on a regular calendar.

Rule 3:21-8 provides:

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.

The credit applies only to "a period of incarceration attributable to the crime for which the sentence is imposed." State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.), certif. denied, 192 N.J. 68 (2007); In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981). The Rule does not provide credit for time in custody that is "due to service of a prior-imposed sentence or another charge." Hemphill, supra, 391 N.J. Super. at 71; State v. Hugley, 198 N.J. Super. 152, 160 (App. Div. 1985); State v. Council, 137 N.J. Super. 306, 308-09 (App. Div. 1975). When the Rule applies, the credit is mandatory. Hemphill, supra, 391 N.J. at 71.

The State argues that since the defendant posted bail on the assault charges and was unable to post bail on the robbery charge, he is not entitled to the additional credit because his confinement was due to the robbery charge and not the assault offenses. The trial court rejected this argument, noting that because the recognizance for the assault charge had been released, defendant was confined on that charge and entitled to the additional credit. We agree with the trial court.

The additional credit was given not from the day that defendant was arrested on the robbery charge but from the day that the recognizance on these charges was released. As of that day, defendant was no longer free on bail on these charges.

The State states,

we suggest that there should be a hierarchy of bails. When a defendant makes bail and then is arrested on an unrelated charge, the new bail, whether it is higher or lower than the old bail, should become the primary bail. Only after the defendant meets the new bail should he be entitled to post the re-set, old bail.

The State's suggestion and view of how Rule 3:21-8 should be applied, while interesting, is unsupported by legal authority. It is true that, if the recognizance had not been released, defendant would have been in custody for the additional time on the robbery charge and therefore, not entitled to the additional credit. However, the fact here is that the recognizance was released and defendant never posted bail thereafter on these charges, even when the bail was reduced after trial. Therefore, credit for the time served in jail on these charges prior to sentencing was mandatory.

Affirmed.

 

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A-1670-07T4

November 17, 2009