STATE OF NEW JERSEY v. SEAN SANTAMASSINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN SANTAMASSINO, A/K/A

ROBERT SANTAMASSINO,

Defendant-Appellant.

______________________________

October 14, 2014

Submitted October 7, 2014 Decided

 
Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Accusation No. 12-04-0416.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his conviction for second-degree burglary, N.J.S.A. 2C:18-2. Defendant argues primarily that the judge erred by denying his request to convert gap time credit to jail credit. We affirm.

On July 21, 2011, police in Bergen County arrested defendant and charged him with committing third-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (the "Bergen offense").1 Defendant made bail and the police released him. On January 8, 2012, police in Passaic County arrested defendant, charged him with committing second-degree burglary, N.J.S.A. 2C:18-2 (the "Passaic offense"), and incarcerated him.2

On April 27, 2012, a Bergen County judge sentenced defendant pursuant to a plea agreement and imposed a five-year prison sentence. Thereafter, defendant pled guilty to the Passaic offense and awaited sentencing.

On October 26, 2012, a Passaic County judge sentenced defendant to three years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to the Bergen County sentence.3 The Passaic County judge gave defendant 110 days of jail credit from January 8, 2012 (the date of his Passaic arrest) to April 26, 2012 (the day before his Bergen County sentence). The judge gave defendant 182 days of gap time credit for the time he spent in custody between the Bergen sentence and Passaic sentence.

At sentencing, defendant requested that the Passaic judge reduce his negotiated plea by six months, or in the alternative, convert the 182 days of gap time credit to jail credit in the interest of "fundamental fairness." The judge declined, stating that defendant was

sentenced on April 27[,] [2012] for . . . [the Bergen offense]. Once [he was] sentenced on [that] offense, . . . [he] no longer [could] get jail [] credit. [The] credit becomes gap time credit.

. . . .

[Defendant] did six months on [the Bergen sentence]. [He was] getting . . . full credit . . . on that [] sentence for that time period.

On appeal, defendant argues that

POINT I

THE AWARD OF GAP TIME [CREDIT] IN THIS MATTER WAS THE RESULT OF CLEAR ERROR PURSUANT TO STATE V. PILLOT,[4] AND HIGHLY PREJUDICIAL, AND ACCORDINGLY SHOULD BE RECAST AS AN AWARD OF JAIL [CREDIT] OR PRIOR-SERVICE CREDIT.

In his pro se brief, defendant raises the following point, which we have re-numbered

POINT II

THE UNREASONABLE DELAY OF BRINGING DEFENDANT BEFORE THE COURT FOR SENTENCING[] VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW[] THUS CREAT[ING] A MANIFEST . . . INJUSTICE.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.

Jail credit is awarded to a defendant "on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." R. 3:21-8. Jail credit results in a defendant being "entitled to credit against the sentence for every day . . . in custody for that offense prior to sentencing," and can be used to offset both a parole ineligibility term and the actual sentence. State v. Hernandez, 208 N.J. 24, 37 (2011).

Gap time credit is awarded when a defendant is subsequently sentenced to another term for an offense committed prior to the former sentence. Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988) (citing N.J.S.A. 2C:44-5b(2)). Gap time credit is granted if, like here: "(1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence." State v. Franklin, 175 N.J. 456, 462 (2003).

Unlike jail credit, gap time credit does not reduce a period of parole ineligibility. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994); see also Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001) (holding that gap time credit cannot reduce the eighty-five percent parole ineligibility mandated by NERA), certif. denied, 171 N.J. 339 (2002). Sentencing courts have no discretion in the award of gap time credit, and converting gap time credit into jail credit to avoid NERA consequences would violate clear legislative intent. See Hernandez, supra, 208 N.J. at 48-49; Meyer, supra, 345 N.J. Super. at 430.

Here, the Passaic judge properly awarded defendant gap time credit as required under Hernandez and N.J.S.A. 2C:44-5b(2). Defendant was sentenced to prison for the Bergen County conviction, he was subsequently sentenced for the Passaic County conviction, and both offenses occurred prior to the imposition of the Bergen sentence.

Affirmed.

1 Defendant was also charged with committing two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5); fourth-degree obstruction of justice, N.J.S.A. 2C:29-1; fourth-degree throwing bodily fluids on a corrections officer, N.J.S.A. 2C:12-13; and disorderly persons simple assault, N.J.S.A. 2C:12-1a.

2 The police in Passaic County also charged defendant with committing several disorderly persons offenses.

3 Although the Passaic County judge sentenced defendant on October 26, 2012, she signed the judgment of conviction on November 9, 2012.

4 115 N.J. 558 (1989).