STATE OF NEW JERSEY v. L. H

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0602-09T40602-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

L. H.,

Defendant-Respondent.

________________________________

 

Argued: April 28, 2010 - Decided:

Before Judges Stern, Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 08-10-3147.

Lucille M. Rosano, Assistant Prosecutor, argued the cause for appellant (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

Alexander R. Shalom, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Shalom, of counsel and on the brief).

PER CURIAM

The State appeals from the award to defendant of 2,145 days of gap time credits for the period April 12, 1995 to April 27, 1998 and March 13, 2001 to January 22, 2004. They were awarded because the sentence under review relates to a crime that occurred before the sentences resulting in those periods of incarceration were imposed and served. Defendant does not cross-appeal from the denial of 1,546 days of gap time credits based on his present involuntary civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to 30:4-27.38 (SVPA). Defendant was sentenced on September 18, 2009, pursuant to a negotiated plea in this case to sexual assault in exchange for a seven year term with no parole ineligibility. He received that sentence.

The State contends that the award contravenes the policy of the Legislature as embodied in the DNA Database and Database Act, N.J.S.A. 53:1-20.17 to 53:1-20.31 (DNA Act), requiring convicted offenders to submit DNA samples, used by the CODIS system to identify perpetrators of other crimes. The present crime occurred October 25, 1994. Defendant's two prior sentences were imposed in April 1995 and March 2001 before defendant's DNA was matched with a DNA sample taken from the victim of this crime in 1994. He was charged with this offense in October 2008. The State argues that if defendant receives the credits, even against "the back end" of the sentence, see Richardson v. Nickolopoulos, 110 N.J. 241, 254-55 (1988), in a case like this involving a 1994 crime, defendant, who was subsequently sentenced in 1999 and 2001, will end up with no additional time to serve and will receive, in essence, a "free crime."

But that is the consequence of N.J.S.A. 2C:44-5b(2), as it is presently codified. The State is correct: that provision was designed to encourage multiple dispositions to create an incentive for prosecutors to resolve all pending matters simultaneously so defendants would not be penalized by the delay between sentences and other prosecutions and could serve their time and move on with a hopefully more beneficial life. See State v. Guaman, 271 N.J. Super. 130, 135-34 (App. Div. 1994). But it also was designed to credit defendants with time spent in custody between one sentence and a subsequent sentence imposed for a prior crime because, as a matter of public policy, the defendant should have benefited by the work and experience in the "correctional" facility, and because the Model Penal Code encouraged a limit on cumulative sentences. Ibid. See also State v. Franklin, 175 N.J. 456, 462-64 (2003); Booker v. N.J. State Parole Bd., 136 N.J. 257, 260, 270 (1994).

In State v. Ruiz, 355 N.J. Super. 237, 239 (Law Div. 2002), the court found that the defendant was "entitled to gap-time credit for two prior sentences of imprisonment [for offenses occurring after the crime under consideration] although they encompass periods of time that Ruiz's own conduct . . . prevented the State from even knowing that the first crime has been committed." The court's conclusion was based on the plain meaning of N.J.S.A. 2C:44-5b(2), the purpose of the statute, and the impracticality of any approach other than following "a literal interpretation" of the statute. Id. at 249. This literal approach requires the award of gap time credits whenever "(1) the defendant has been sentenced previously to a term of imprisonment; (2) the defendant is sentenced subsequently to another term of imprisonment for an offense; and (3) both offenses occurred prior to the imposition of the first sentence to a term of imprisonment." Id. at 241 (citing State v. Carreker, 172 N.J. 100, 105 (2002)). See also State v. Franklin, supra, 175 N.J. at 462.

We agree with the Ruiz analysis, and cannot conceive that the legislative policy can be understood to distinguish this case, in which defendant did nothing to prevent the State from locating him, from Ruiz. The statute, as written, must be "literally" applied. See State v. Guaman, supra, 271 N.J. Super. at 134.

The practical problems caused by cases like this can often be addressed by the negotiated plea or by the sentence imposed in the absence of a plea. Under the Code of Criminal Justice, the judge should take into account the real time to be served and parole consequences of a plea recommendation and sentence. See N.J.S.A. 2C:44-1c(2).

The State points to cases in which gap time credits have not been awarded against a sentence for a crime which occurred before defendant's prior sentence. But in those cases, defendants were serving out-of-state sentences which our courts have always treated differently because of the difficulties of finding or returning a defendant to New Jersey for prosecution. See, e.g., State v. Carreker, supra, 172 N.J. at 111; State v. Hughley, 198 N.J. Super. 152, 158 (App. Div. 1985). Accordingly, defendant was properly awarded gap time credits.

In light of our disposition, we need not consider the ex post facto issue we raised and allowed the parties to brief in the event we agreed with the State's interpretation, but see, e.g., Lynce v. Mathis, 519 U.S. 433, 445-46, 117 S. Ct. 891, 898, 137 L. Ed. 2d 63, 75 (1997).

 
Affirmed.

Defendant was committed under the SVPA in January 2004 upon completion of his custodial sentence.

The record is not clear as to which prior conviction led to the positive DNA match. There is no claim the State unduly delayed any investigative use of the DNA or match. Nor does defendant contend there is any statute of limitations issue. N.J.S.A. 2C:1-6c was amended when the DNA Act was adopted to lengthen the statute of limitations when a prosecution "is supported by physical evidence that identifies the actor by DNA testing or fingerprint analysis. . ." See also N.J.S.A. 2C:1-6a, L. 1994, c. 53, 1(a), which was in effect at the time of this offense (when the victim was sixteen years old).

Of course, our cases also preclude gap time credits against mandatory parole ineligibility terms. Booker, supra, 136 N.J. at 262-63; Meyer v. Parole Bd., 345 N.J. Super. 424, 430 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002).

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A-0602-09T4

June 16, 2010