STATE OF NEW JERSEY v. MARVIN REID

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3717-03T43717-03T4

A-6407-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN REID,

Defendant-Appellant.

______________________________________________________________

 

Submitted November 27, 2007 - Decided

Before Judges Coburn and Chambers.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, 00-03-0227-I.

Yvonne Smith Segars, Public Defender attorney

for appellant (Mark H. Friedman, Assistant Deputy

Public Defender, of counsel and on the briefs).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Chief Assistant Prosecutor in A-3717-03T4, of

counsel and on the brief and Jason F. Statuto, Assissant Prosecutor in A-6407-05T4, of counsel

and on the brief).

PER CURIAM

Since these related appeals arise out of a one indictment, we have consolidated them for purposes of this opinion.

The first seven counts of the indictment, which was returned on March 14, 2000, charged defendant with offenses that occurred on August 24 and 26, 1999, and the remaining counts concerned offenses that occurred on September 2, 1999. Defendant was arrested on September 2, 1999, for the offenses committed on that date, and bail was set at $200,000. Defendant was unable to make bail.

Subsequently, the police identified defendant as a suspect on the earlier set of offenses. Although defendant was never arrested on those offenses, they were included in the indictment. The bail was not increased, and defendant remained incarcerated pending trial. At defendant's request, the judge severed the first seven counts, and a trial before a jury ensued on the remaining counts, 8 through 15. A jury found defendant guilty on all of those counts, and on March 1, 2002, the judge imposed an aggregate prison sentence of sixty years with thirty years of parole ineligibility. Pursuant to R. 3:21-8, the judge gave defendant credit for the 912 days he had spent in custody from September 2, 1999 through March 1, 2002.

On June 24, 2005, defendant entered into a negotiated plea agreement with the State regarding the offenses that occurred in August 1999. On June 24, 2005, the judge imposed an aggregate concurrent prison sentence on counts 1 and 3 of seven years with the parole ineligibility term required by the No Early Release Act. Neither jail nor gap time credits were awarded to defendant on this sentence.

In his appeal from the judgment of conviction on the jury verdict, defendant contends that the judge failed to adequately define "knowingly" in his instructions on the charges involving that mental state. He also contends that the judge erred in imposing sentence. Citing N.J.S.A. 2C:43-7(a)(2) and (b), the State properly concedes that the maximum period of parole ineligibility in this case was not thirty years, the term imposed by the judge, but twenty-five years. The State also properly concedes that State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006), require reconsideration by the trial judge of the maximum sentences imposed on each count.

Therefore, counts eight through fifteen are remanded for resentencing. However, defendant's arguments with respect to the charge on "knowingly" are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). See State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999). Therefore, the jury's verdict will remain, and the case is remanded for re-sentencing.

In his appeal from the sentences subsequently imposed on the August 1999 offenses, defendant contends that he should have been awarded 912 days of jail credits. The State opposes that claim but avers that defendant is entitled to gap times credits on those sentences for the period from the date of his first sentence, March 1, 2002, to the date of his sentencing on these offenses, June 24, 2005.

The State is clearly correct with respect to its position on gap time. N.J.S.A. 2C:44-5(b)(2); State v. Carreker, 172 N.J. 100, 105 (2002); Booker v. New Jersey State Parole Bd., 136 N.J. 257 (1994).

The State is also correct on the jail credit issue. Jail credits are awarded pursuant to R. 3:21-8, and they only apply "to confinement directly attributable to the particular offense giving rise to the initial incarceration." In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div. 1981)(citations omitted). Defendant was never arrested on the August offenses. Thus, his confinement from September 2, 1999, to the date on which the indictment was returned, March 14, 2000, obviously did not relate to the August offenses. Although the State employed a single indictment, the bail was not thereafter increased. Therefore, it cannot be said that defendant's pre-trial confinement was related in any way to the August offenses. Consequently, the award of 912 days of jail credit for the September offenses fully satisfied the requirements of

R. 3:21-8.

Defendant contends that he should nevertheless have been awarded jail credits on the August offenses on an equitable basis for the 912 days between his arrest on September 2, 1999, and his sentencing on March 1, 2002, for the September offenses. Alternatively, he argues for jail credit of 654 days from the period between his arrest and his conviction at trial of the September offenses.

Defendant relies on State v. Grate, 311 N.J. Super. 544 (Law Div. 1997), aff'd as modified, 311 N.J. Super. 456 (App. Div. 1988), to support his claim for equitable jail credits on the August charges. But his reliance is misplaced. In Grate, defendant was arrested and released after posting bail of $15,000. He was then arrested for a subsequent offense. The bail was set at $20,000, and combined with the earlier bail amount for a consolidated bail of $35,000. Defendant was unable to post the additional $20,000 and remained in jail. After 476 days passed, defendant was acquitted on the second charge and released from custody because he had already posed the $15,000 bail on the first charge. Defendant later pled guilty to the first charge. The trial judge awarded defendant the 476 days of jail credit even though the jail time was not directly attributable to the first charge since the bail he posted was never revoked. The trial judge reasoned that equitable considerations justified the jail credit because, among other things, the time spent in jail was not attributable to any other offense actually committed by defendant. Id. at 550. That is not the case here. Indeed, the opposite is so: defendant was convicted on both occasions. Moreover, defendant never made bail on the September offenses. Therefore, we perceive no equitable basis for awarding jail credits for the August offenses.

 
All of defendant's convictions are affirmed, but we remand for re-sentencing on the September offenses and for modification of the judgment on the August offenses by the addition of gap time.

The indictment charged defendant with the following offenses: burglary, N.J.S.A. 2C:18-2, counts one, three, eight, and thirteen; robbery, N.J.S.A. 2C:15-1, count two; armed robbery, N.J.S.A. 2C:15-1, counts four, seven, nine, and twelve; possession of a weapon with a purpose to used it against another, N.J.S.A. 2C:39-4(d), counts five and ten; possession of a weapon in manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d), counts six and eleven; theft, N.J.S.A. 2C:30-3, count fourteen; and resisting arrest, N.J.S.A. 2C:29(a)(1), count fifteen.

(continued)

(continued)

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A-3717-03T4

December 11, 2007