THOMAS J. MUSTO, JR v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3354-08T23354-08T2

THOMAS J. MUSTO, JR.,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________

 

Submitted: June 9, 2010 - Decided:

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

On appeal from the Department of Corrections.

Thomas J. Musto, Jr., appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Robert Lougy, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Thomas J. Musto, Jr., an inmate at Northern State Prison, appeals from a final agency decision denying his request "to apply work and minimum credits against appellant's sentence of 30-to-life." Musto filed an "Inmate Remedy System Form" on December 22, 2008, in which he claimed that "the Legislature has defined 'life' as 75 years by stating that 25 years is the one-third parole ineligibility term for a life sentence without a mandatory minimum" and "by that statutory definition," he claimed entitlement to "work and minimum credits against a 75 year sentence." In response, the appropriate officer of the Department of Correction (DOC) wrote: "Your credits are post[ed] on a monthly basis for parole purposes. DOC does not calculate life because it is not a defined term."

In his administrative appeal, Musto wrote:

Unlike NERA, the legislature did not intend to exclude lifer[s] from receiving work/minimum credits and, if the Legislature defines 1/3 of a life sentence as 25 years, the D.O.C. has authority to treat a life sentence as a determinate term to serve the State's rehabilitative and fiscal interests.

In its final administrative determination, the DOC "Staff Response Form" replied:

The DOC does not calculate life as a term. Life is considered an incarceration for one's natural life. Work and minimum credit[s] are being accrued but do not reduce life.

Before us, Musto does not "dispute that commutation and work credits cannot reduce the statutory mandatory minimum [term] of 30 years." Nor is it disputed that Musto's parole ineligibility does not expire until August 19, 2016. However, he contends that commutation (comportment or good time) credits, N.J.S.A. 30:4-140, and work credits, N.J.S.A. 30:4-92, should be awarded against his sentence so it is reduced by that entitlement upon serving the ineligibility term. His argument is premised upon two statutes, N.J.S.A. 30:4-123.51(b), which makes a prisoner serving a life sentence without a mandatory minimum ineligibility term "primarily eligible for parole" after twenty-five years, and N.J.S.A. 2C:43-7.2(b), which converts a life sentence to seventy-five years.

The latter is part of the No Early Release Act (NERA) and treats a life sentence as seventy-five years "[s]olely for the purposes of calculating the minimum term of parole ineligibility" pursuant to N.J.S.A. 2C:43-7.2(a), that is for fixing eighty-five percent of life imprisonment. The Legislature so provided in order to make NERA applicable to life sentences for murder. See State v. Andino, 345 N.J. Super. 35, 38-40 (App. Div. 2001); State v. Allen, 337 N.J. Super. 259, 271-74 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). See also State v. Manzie, 335 N.J. Super. 267, 271-78 (App. Div. 2000), affirmed by an equally divided court, 168 N.J. 113 (2001). Defendant was not sentenced pursuant to NERA, so its provisions are not relevant.

Moreover, N.J.S.A. 30:4-123.51(a) refers to life sentences for murder imposed under N.J.S.A. 2C:11-3 (except those not relevant here under N.J.S.A. 2C:11-3(b)(2), (3), and (4), see N.J.S.A. 30:4-123.51(k)), and expressly provides that "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."

Accordingly, the DOC properly concluded the calculation should be deferred until after the thirty-year mandatory ineligibility term under N.J.S.A. 2C:11-3(b)(1) was fully served.

 
Affirmed.

No judgment of conviction is in the record before us, but there is no dispute that defendant was convicted of murder and, on November 7, 1986, was sentenced to life imprisonment with thirty years to be served before parole eligibility. See N.J.S.A. 2C:11-3(b)(1). We do not know the offense date.

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A-3354-08T2

July 7, 2010