STATE OF NEW JERSEY v. BRUCE E. LIGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3906-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE E. LIGE, a/k/a MICHAEL

A. LIGE, ANDREW LODGE, BRULE

E. LIGE,

Defendant-Appellant.

_________________________________________

August 14, 2014

 

Submitted November 4, 2013 Decided

 

Before Judges St. John and Leone.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-05-0714; 07-08-1241; 10-05-0656.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

 

Defendant Bruce E. Lige pled guilty to certain burglary, theft and receiving stolen property charges after a large amount of cash was seized, without a warrant, from an automobile he was driving. Defendant appeals the denial of his motion to suppress that evidence. He also appeals the imposition of restitution in connection with his sentence and the denial of certain gap-time and jail credits. For the reasons that follow, we affirm in part and reverse in part.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

On December 27, 2006, Officer Patrick Evans and Officer Oels1 of the New Brunswick Police Department stopped defendant driving a Chevrolet Blazer, for speeding and failure to use a turn signal as he exited a parking spot. Defendant identified himself as "Brian Chew," but was unable to provide identification or documentation for the vehicle. The vehicle was registered to Brian Shafer. Oels noticed a used package of suspected heroin in the vehicle.

Defendant was arrested and issued summonses for driving while suspended and numerous additional motor vehicle violations. After defendant was arrested and taken to the police station, Sergeant Middleton identified defendant as Bruce Lige. Evans also learned from Middleton that defendant was "known for guns, drugs, carrying large sums of money." In addition, Evans discovered defendant had an "extremely poor" driving record, a "very extensive" criminal history, and outstanding warrants from Union County and Howell Township. Defendant was also charged with possession of drug paraphernalia and obstruction for lying to the officers. He was issued summonses.

On January 14, 2007, Evans observed defendant drive past him in the same Chevy Blazer. The car had different license plates than the plates from December, so Evans called the license plate into headquarters and the response indicated the plate was registered to Brian Shafer. Defendant pulled into a parking spot in a private lot at 12 Reed Street and Evans followed, stopping his vehicle directly behind defendant's car. Evans then initiated a motor vehicle stop, as he recalled defendant was driving with a suspended license. Defendant was in the driver's seat, and Delshonda Lunn was in the front passenger's seat. As Evans moved towards the vehicle, defendant remained in the driver's seat with the car running. When Evans approached on the driver's side, he shined a flashlight into the backseat area and observed an open tan canvas "bag in the center of the floor board filled with what appeared to be hundred dollar bills." He testified "it looked like it was just very hastily thrown there."

As Evans drew closer to the driver's side, defendant "threw the door open" and stated to the officer, "you know who I am, I have a suspended license." He also informed the officer that he had just bailed out Lunn from the Middlesex County Correction Center. Defendant was sitting in the vehicle with the driver's door open and his feet outside the car. Evans replied, "we'll worry about that later" and asked defendant for his driver's license, registration and insurance card. As defendant reached over to the glove compartment to retrieve the credentials, the officer "looked even further back [in the car] and confirmed, it was indeed a large tan canvas bag filled with hundred dollar bills." Defendant appeared "very nervous" and "was stumbling with his voice." He also could not produce any credentials.

Evans instructed defendant to keep looking for his credentials and then called for backup. Officer Monticello arrived first and arrested Lunn for outstanding warrants. Evans arrested defendant for again driving while his license was suspended. Both individuals were handcuffed and held at the rear of the Blazer. At that point in time, only two officers were at the scene, Evans and Monticello. Immediately after defendant and Lunn were handcuffed, Evans took the cash filled bag from defendant's vehicle and placed it on the hood of his patrol vehicle "so this way everyone's in view of the money." Within approximately a minute, more backup officers arrived at the scene. Evans indicated he "checked the bag to make sure

. . . there was no guns or drugs or anything in it, it was just money, then the vehicle was searched." No other contraband was discovered.

Once additional backup units arrived, Evans called Sergeant William Oels because he wanted advice from a supervisor. Evans informed Sergeant Oels, "[he] was placing Bruce Lige under arrest for driving while suspended and [defendant] was found with a bag of money and [Sergeant Oels] needed to come to the scene." During the conversation, Sergeant Oels informed Evans that defendant was known for guns, drugs, and carrying large sums of money. Evans testified that he originally took the bag of money "for safekeeping because it was felt it was used in the commission of a crime and for investigative purposes." Evans searched the car because "[he] felt the money was used in a crime or crime had been committed to get the money, so [he] was looking for burglary tools, and Mr. Lige [was] known for guns and drugs, so [he] was looking for that."

Sergeant Oels arrived on the scene and took command. Sergeant Oels knew defendant for fifteen or sixteen years through defendant's help in the anti-crime unit. When Sergeant Oels arrived, defendant said, "Billy Oels, he's going to take my money. Tell him he can't do that." Sergeant Oels responded, "well, I think he's going to take it. We're going to have to discuss this." Evans informed Sergeant Oels that the car was being impounded because defendant had a suspended license and no one was available to pick it up. Sergeant Oels asked defendant whether he knew anyone who could come and claim the car because it was on private property, and defendant indicated he did not. An officer took the keys to the vehicle, and the car was towed.

Sergeant Oels indicated the money was seized because of his prior knowledge of the defendant "and the fact that [he] had never, ever [seen] a normal person driving around at one o'clock in the morning, with over $75,000 in cash. And not, at least, have some sort of explanation for it." Sergeant Oels and another officer transported defendant and the money to police headquarters. Sergeant Oels testified that he transported the bag of money "to avoid any claims of impropriety." He stated, "It was an open bag. I'd rather have two witnesses. One of them being the person who had it in their possession, when it was found." After advising defendant of his Miranda2 rights, Sergeant Oels asked defendant, "where did he get it." Sergeant Oels testified that defendant first responded that his father gave it to him, but, when advised that his father would be called to verify that fact, he then said that some Haitian investors "gave him the money to invest at the auto auction."

The New Brunswick Police later learned that a burglary had occurred at Dependable Iron, a scrap metal office in Woodbridge, on either January 13 or 14, where $6,000 cash was taken. John Rotella, owner of Dependable Iron, informed the New Brunswick Police that approximately $6,000 of petty cash was taken, and, before the security system was disabled, images revealed two suspects and a Chevrolet Blazer driving by the building several times. On January 18, 2007, Rotella, went to the police station and informed police that $41,100 was missing, and it was kept in an envelope in a large burlap bag. On January 19, Rotella again went to the police station and identified the bag found in defendant's car as his bag.

Additional investigation revealed that defendant had stolen a U-Haul van on January 4, 2007, and used that van to take an ATM from a Raceway Gas Station. Defendant had also taken a scissor lift from Sunbelt Rentals.

Defendant was charged with multiple crimes arising from these events pursuant to three separate indictments filed in Middlesex County. Defendant thereafter moved to suppress the cash and bag as the product of an unconstitutional search and seizure. The trial judge conducted a two-day suppression hearing, during which the judge heard testimony from Sergeant William Oels and Officer Patrick Evans, and also heard a taped radio transmission between the officers.3 On January 7, 2008, the trial court ruled that the evidence was constitutionally seized under the plain view and search incident to arrest exceptions to the warrant requirement. Defendant appeals from that decision.

After the trial court denied his suppression motion, defendant pled guilty pursuant to a negotiated plea agreement to the following: one count third-degree burglary, N.J.S.A. 2C:18-2 and an amended count of third-degree theft, N.J.S.A. 2C:20-3 on Indictment No. 07-05-0714; two counts of third-degree theft and two counts of third-degree burglary on Indictment No. 07-08-1241; and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7 on Indictment No. 10-05-0656. The judge ultimately sentenced defendant in accordance with his negotiated plea agreement.

On July 2, 2010, the court sentenced defendant on all three Middlesex indictments. On Indictment No. 07-08-1241, the court sentenced defendant to a discretionary extended term, N.J.S.A. 2C:44-3, of eight years with a four-year period of parole ineligibility on third-degree theft, and to two four-year terms with one-year of parole ineligibility for burglary and theft to run concurrent with each other and with the other third-degree theft sentence.

On Indictment No. 07-05-0714, the court sentenced defendant to two four-year terms with one-year periods of parole ineligibility for third-degree burglary and third-degree theft to run concurrent with each other, but consecutive to the eight-year sentence imposed on Indictment No. 07-08-1241.

On Indictment No. 10-05-0656, the court sentenced defendant to a four-year term with a one-year period of parole ineligibility for third-degree receiving stolen property to run consecutive to the sentences for the other two indictments. The consecutive sentences resulted in an aggregate sentence of sixteen years with a six-year period of parole ineligibility to run concurrent with prior sentences defendant was serving from Middlesex County and Hunterdon County.

The court did not award jail or gap credits with respect to any of the sentences. The court also ordered restitution, jointly and severally with co-defendant, Brian Shafer, in the aggregate amount of $32,711.67. The court dismissed the remaining charges on all indictments.

After filing a timely notice of appeal, defendant raises the following points for our consideration:

POINT ONE

 

BECAUSE THERE WAS NO EXCEPTION THAT JUSTIFIED THE WARRANTLESS SEARCH OF DEFENDANT'S CAR, THE EVIDENCE SEIZED FROM IT SHOULD HAVE BEEN SUPPRESSED. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) ART. 1, PAR. 7.

 

POINT TWO

 

A REMAND IS NECESSARY BECAUSE THE TRIAL COURT IMPROPERLY ORDERED THE DEFENDANT TO PAY $32,711.67 IN RESTITUTION WITHOUT CONDUCTING THE REQUISITE HEARING TO EVALUATE DEFENDANT'S ABILITY TO MAKE RESTITUTION, IN VIOLATION OF HIS STATUTORY AND DUE PROCESS RIGHTS. (Not Raised Below).

 

POINT THREE

 

THE MATTER MUST BE REMANDED TO CORRECT THE DEFENDANT'S JUDGMENTS OF CONVICTIONS TO REFLECT THE JAIL CREDITS, SERVICE CREDITS, AND GAP TIME TO WHICH HE IS ENTITLED.

 

Following our temporary remand to the Law Division with regard to the issues raised in defendant's Point Three above, the remand judge filed three amended judgments of conviction on March 28, 2014, awarding defendant certain gap-time and jail credits. After being granted leave to file an amended notice of appeal, defendant raises the following additional points for our consideration:

POINT ONE

 

DEFENDANT SHOULD NOT SUFFER A PENALTY BECAUSE OF THE STATE'S FOUR-YEAR DELAY IN INDICTING HIM WHEN IT HAD SUFFICIENT INFORMATION TO MAKE AN ARREST.

 

POINT TWO

 

DEFENDANT IS ENTITLED TO AN ADDITIONAL FIFTY-THREE DAYS OF JAIL CREDIT ON INDICTMENT NO. 07-08-1241.

 

II.

 

A.

 

In our limited review of a motion to suppress, we must uphold the factual findings of the trial judge as long as those findings are supported by sufficient credible evidence. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243 (2007). We accord particular deference to factual findings that are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Rockford, 213 N.J. 424, 440 (2013)(alteration in original)(internal quotation marks omitted). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Under both the United States and New Jersey Constitutions, a warrantless search or seizure "is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000)(citing State v. Alston, 88 N.J. 211, 230 (1981)). The State bears the burden of proving by a preponderance of the evidence the validity of warrantless searches and seizures. State v. Edmonds, 211 N.J. 117, 128 (2012).

One delineated exception to the warrant requirement is the plain view exception. See State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984); see also Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The plain view doctrine justifies a warrantless seizure when a police officer (1) is lawfully present in the viewing area, (2) inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-08 (2002)(internal quotation marks omitted).

Defendant argues that the incriminating nature of the seized burlap bag was not "immediate apparent" and that neither probable cause nor an exigent circumstances justified the warrantless search and seizure of the bag. Accordingly, defendant contends that the trial court erred by not granting his motion to suppress that evidence. We disagree.

In her decision, the motion judge focused on the information the officer reasonably knew at the time of the seizure and stated, "the officer . . . lawfully stopped defendant's vehicle for the motor vehicle violation; therefore the officer was lawfully in the viewing area . . . . Officer Evans pulled over the vehicle [defendant] was driving for the suspended license."

We do not find any genuine dispute that the first two requirements of the plain view test were present here, as the police lawfully conducted a valid motor vehicle stop of defendant's Blazer and Officer Evans, using his flashlight as a precaution to inspect the interior of the vehicle, observed the canvas bag holding a large quantity of hundred-dollar bills. See Johnson, supra, 274 N.J. Super. at 154 ("[T]he viewing of objects which are in plain viewwithin an automobiledoes not constitute an unlawful search."); State v. Nishina, 175 N.J.502, 517-18 (2003)(officer's use of a flashlight to viewa vehicle's interior "did not transform an otherwise proper plain-view observation into an impermissible search").

The third prong of the plain view exception requires proof that it is "immediately apparent" to the officers that the items in plain view were evidence of a crime or contraband. Bruzzese, supra, 94 N.J. at 236(internal quotation marks and citations omitted). In Texas v. Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513, the United States Supreme Court held that in order to seize evidence in plain view, the police officer must have probable cause to associate the property with criminal activity. In adopting that standard, our Supreme Court stated:

We do not believe that a police officer lawfully in the viewingarea must close his eyes to suspicious evidence in plain view. The Supreme Court's rule merely requires that "the facts available to the officer would 'warrant demand of reasonable cautionin the belief' (citation omitted) that certain items may be contraband, or stolen property or useful as evidence of a crime, it does not demand any showing that such belief be correct or more likely true than false."

 

[Bruzzese, supra, 94 N.J. at 237.]

The Court has held that the "immediately apparent" requirement does not require an "unduly high degree of certainty as to the incriminating character of the evidence," Johnson, supra, 171 N.J. at 207, and "looks to what the police officer reasonably knew at the time of the seizure." Bruzzese, supra, 94 N.J. at 237. To satisfy this prong, police need only show "[a] practical, non-technical probability that incriminating evidence is involved." Id.at 237 (internal quotation marks and citations omitted).

Further, a reviewing court "must give due weight to factual inferences drawn by . . . local law enforcement officers." Johnson, supra, 171 N.J. at 219 (alteration in original) (internal quotation marks omitted). In Johnson, our Supreme Court explained that, in determining probable cause:

the totality of the circumstances, including the facts that were known to [the officer] and the reasonable inferences he was permitted to draw from them in light of his experience and training, are weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement[.]

 

[Ibid. (citations and internal quotation marks omitted).]

 

The totality of the circumstances here warrant a person of reasonable caution in the belief that the bag of hundred dollar bills probably is incriminating evidence, and constitutional protections do not demand a showing that such belief be correct or more likely true than false.

Thus, all three prongs of the plain view exception were established. Therefore, Officer Evans could properly seize the bag filled with cash. See State v. Mann, 203 N.J. 328, 341 (2010). The seizure did not require a warrant or exigent circumstances.

We conclude the motion judge correctly decided the plain view exception to the warrant requirement was proved. Her determination implicitly relied upon the officer's training and experience, and the officer's knowledge of the defendant and his criminal history in immediately recognizing the bag of hundred dollar bills likely to be incriminating evidence.4

Although it has already been established that the seizure of the money was justified under the plain view exception, alternative reasoning would suggest that an inventory search of the vehicle after it was towed would have generated the seizure of the money. Therefore, the seizure is also justified by the inevitable discovery rule.

The law of administrative impoundment and inventory is applied when there is no probable cause to search and seize the vehicle; rather the car is impounded for community caretaking functions and is subsequently inventoried. The administrative impoundment of a car is a seizure and its inventory is a search within the meaning of the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to [32] protect against false claims of loss or damage. Seeid. at 369, 96 S. Ct. at 3097, 49 L. Ed. 2d at 1005; State v. Slockbower, 79 N.J.1, 15 (1979).

"Mere legal custody of an automobile by law enforcement officials does not automatically create a right to search its interior." State v. Ercolano, 79 N.J.25, 52 (1979)(Pashman, J., concurring). An individual's right of privacy in his motor vehicle and the effects contained therein must be balanced against "three distinct governmental needs: the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger." Opperman, supra, 428 U.S.at 369, 96 S. Ct.at 3097, 49 L. Ed. 2d at 1005 (citations omitted). Although the primary rationale for the subsequent inventory of an administratively impounded vehicle is to protect the owner's property, it is the burden of the police to demonstrate that the inventory was undertaken in order to fulfill one of more of the "needs" announced by the Court. State v. McDaniel, 156 N.J. Super. 347, 359 (App. Div. 1978).

The burlap bag of money was found in a car that was driven by a driver with a suspended license, and was properly towed after defendant informed officers that no one was available to pick it up. The initial decision to remove the car from the private property on which it was parked was reasonable. See ibid. Entry into the impounded car to secure the bag of money would fulfill the need to protect that property, and to shield the police from claims that the money was lost or stolen. Once the money was seized, defendant's inconsistent explanations for its source, and the subsequent discovery of the money from Dependable Iron, would have justified retention of the money.

Defendant argues that the bag of money was not seized pursuant to an inventory search, but was removed at the scene by the arresting officers. The police had reasonable grounds to do so, as an open bag of one-hundred dollar bills would have been at risk during the towing and impoundment process, jeopardizing the goals both of protecting the property from theft and shielding the police against claims. It was impractical to have the officers guard the vehicle on private property or escort it through towing, impoundment and storage prior to performing an inventory search at the impoundment location. See Cooke, supra, 163 N.J. at 675.

We need not rule on whether the reasonableness of the police action would itself justify seizure without a warrant, because even if the officers had not seized the bag of money at the scene, it would have been seized in a subsequent inventory search. Accordingly, we conclude that seizing the bag with money in connection with the impoundment of the vehicle was permissible, and the evidence therefore admissible, under the inevitable discovery rule. State v. Finesmith, 406 N.J. Super. 510, 552 (App. Div. 2009)(holding that the inevitable discovery rule applies where proper investigatory procedures would have been followed, which would have resulted in the inevitable discovery of the evidence, in a manner wholly independent of the discovery of the evidence by unlawful methods).

B.

We now turn to defendant's contention that the court erred with regard to his sentence. We apply a deferential standard of review to the sentencing court's determination, but not to the interpretation of a law. Appellate review of a criminal sentence is limited; a reviewing court decides whether there is a "clear showing of abuse of discretion." State v. Whitaker, 79 N.J. 503, 512 (1979) (internal quotation marks omitted). A trial court's imposition of restitution is reviewed under an abuse of discretion standard. State v. Rhoda, 206 N.J. Super. 584, 593-94 (App. Div.), certif. denied, 105 N.J. 524 (1986).

Defendant contends that the sentencing judge erred by awarding restitution without first holding a hearing to determine the amount of the victims' losses and defendant's ability to pay those sums, N.J.S.A. 2C:44-2(c)(2).

Although a court has discretion to require the payment of restitution when sentencing a defendant, its discretion is bounded by N.J.S.A. 2C:44-2. See State v. Newman, 132 N.J. 159, 164 (1993). Before ordering restitution pursuant to that statute, the sentencing court must first determine that the defendant has a present or future ability to pay restitution. N.J.S.A. 2C:44-2(b)(2); Newman, supra, 132 N.J. at 169. If there is a good faith dispute over the amount of loss or defendant's ability to pay, the court is required to conduct a restitution hearing in order to resolve those issues. N.J.S.A. 2C:44-2(c); State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). On the other hand, where there is no controversy as to the amount and ability to pay, a hearing is not required. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).

Here, the judgment of conviction imposed restitution but the sentencing transcript was silent. Ordinarily, we consider the sentencing transcript, rather than the judgment of conviction, to be the true source of the sentence. See State v. Walker, 322 N.J. Super. 535, 556 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). Here, however, the sentencing transcript is unclear as to whether the judge intended to impose restitution. Accordingly, on remand, if the court decides to impose restitution, it should make the requisite findings.

On remand, the court should also determine whether defendant's liability should be joint and several with co-defendant, Brian Shafer. Although there is no statutory provision addressing joint and several liability for restitution among multiple defendants, see State v. Scribner, 298 N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997), we have previously held that joint and several responsibility may be imposed in the appropriate circumstances. State v. Pessolano, 343 N.J. Super. 464, 479 n.10 (App. Div.), certif. denied, 170 N.J. 210 (2001).

In Scribner, supra, however, we held that imposition of joint and several liability, without an examination of an individual defendant's present or future ability to pay, could not be sustained. 298 N.J. Super. at 371-72. Moreover, even a pro rata distribution between defendants of a restitution order should reflect a defendant's ability to pay. Id. at 372. Thus, a finding with respect to a defendant's ability to pay has to precede any imposition of joint and several liability. Ibid. Accordingly, we remand this issue to the Law Division for a hearing.

C.

The parties stipulated that the trial judge erred when determining defendant's jail and gap-time credits and that a temporary remand was therefore necessary. By order dated February 6, 2014, we remanded the matter to the Law Division to determine the correct jail and gap-time credits and to amend the judgments of conviction accordingly. We retained jurisdiction.

On March 28, 2014, the remand judge, who was also the sentencing judge, conducted a hearing on gap-time and jail credit, and thereafter entered three amended judgments of conviction. Defendant's convictions were amended to reflect: 429 days of jail credit and 749 days of gap-time on Indictment No. 07-05-0714; 376 days of jail credit and 749 days of gap-time on Indictment No. 07-08-1241; and 58 days of gap-time on Indictment No. 10-05-0656. Defendant then moved for reconsideration on March 31, 2014, which was denied by the remand judge after hearing oral argument on the motion.

We granted defendant permission to file an amended notice of appeal, challenging the amended judgments of conviction, arguing that the remand judge erred by failing to grant him additional gap-time credit with respect to Indictment No. 10-05-0656 and additional jail credit with regard to Indictment No. 07-08-1241.

A challenge to the denial of gap-time or jail credits "constitutes an appeal of a sentence 'not imposed in accordance with the law.'" State v. DiAngelo, 434 N.J. Super.443, 451 (App. Div. 2014)(quoting State v. Rippy, 431 N.J. Super. 338, 347 (App. Div. 2013)). In our de novo review of these legal issues, "we accord no special deference to a trial judge's interpretation of the law and legal consequences that flow from established facts[.]" Ibid.(alteration in original)(internal quotation marks omitted).

Defendant first contends that the remand judge erred in calculating the gap-time credit he was entitled to on Indictment No. 10-05-0656, which he asserts should have been set at 1,297 days because of the State's four-year delay in indicting him despite allegedly having sufficient information to make an arrest. While we agree that defendant is entitled to additional gap-time credit, we disagree with defendant's calculation of the credit. For the reasons that follow, defendant is entitled only to 749 days of gap-time credit accruing from June 13, 2008 to July 2, 2010.

N.J.S.A. 2C:44-5(b) permits "gap-time credit," so called because "it awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." State v. Hernandez, 208 N.J. 24, 38 (2011).5 In order to grant gap-time credit to a defendant, the following three facts must be found: "'(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.'" Ibid. (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts are established, "the sentencing court is obligated to award gap-time credits," rather than jail credits. Ibid.

All three of these facts are present in this case: (1) defendant was sentenced in Hunterdon County to a term of imprisonment on June 12, 2008; (2) defendant was subsequently sentenced to a term of imprisonment on Indictment 10-05-0656 on July 2, 2010; and (3) the offenses for which defendant was sentenced in July 2010 took place in December 2006, and were thus committed "prior to the former sentence" in June 2008. Accordingly, defendant was entitled to gap-time credit under N.J.S.A. 2C:44-5(b) and the Hernandez test.

However, we see no basis in the statute to support defendant's argument that he is entitled to gap-time credit dating back to December 12, 2006, when the prosecutor purportedly could have indicted him for the offense. Defendant is not entitled to that credit because the gap-time statute only applies "[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence." N.J.S.A. 2C:44-5(b)(emphasis added). Under the clear language of the statute, a defendant cannot receive gap-time credit before the sentencing date of the first sentence. That is, there can be no "gap" between sentencing dates until a first sentence is actually imposed.

Therefore, defendant is not entitled to the 1,297 days of gap-time credit he claims on appeal, but only the 749 days between the date of his first sentencing on June 13, 2008 and his sentencing on Indictment No. 10-05-0656 on July 2, 2010.

Defendant also contends that he is entitled to an additional fifty-three days of jail credit with respect to Indictment No. 07-08-1241 because the judge erroneously credited him from March 13, 2007, the indictment filing date, rather than January 19, 2007, his purported arrest date.

"The determination of a defendant's eligibility for jail credits, which in effect reduces the time to be served on a sentence, is governed by [Rule 3:21-8], as most recently interpreted by the Court in Hernandez." DiAngelo, supra, 434 N.J.at 451. Rule3:21-8 provides that a 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." Ibid. "Such credit for pre-sentence custody is commonly labeled 'jail credits.'" Hernandez, supra, 208 N.J.at 36 (internal quotation marks omitted).

Our decision is guided by the principles enunciated in both Hernandez, which addressed jail credits in cases involving multiple charges, 208 N.J. at 36-49, and State v. DiAngelo, supra, which established a bright-line rule for determining when the "jail credit clock commences" under circumstances where a defendant was previously arrested on earlier charges and is subsequently charged with additional offenses while still in custody, 434 N.J. Super. at 460-62.

In Hernandez, the Court considered, for the first time, Rule 3:21-8's application when a defendant, arrested and confined pending disposition on earlier charges, is then also held awaiting disposition on subsequent charges. 208 N.J.at 45. Departing from prior case law holding otherwise, the Court made it clear that a defendant who has been confined prior to sentencing on multiple charges is entitled to "credits against all sentences for any time served in custody in jail . . . between arrest and the imposition of sentence on each case." Id. at 28; see also State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014).

In Hernandez, the named defendant was actually sentenced first on the later-filed offenses and denied jail credit against the sentence imposed on the earlier charges causing her initial arrest. 208 N.J.at 46-47. Thus, the accrual date for purposes of jail credit on the subsequent charges was not at issue and never addressed by the court.

We took up that issue in DiAngelo. In that case, the defendant, while on non-custodial probation, was arrested and detained on new criminal charges. DiAngelo, supra, 434 N.J. Super. at 446-47. While in jail, she was then served with a violation of probation (VOP) statement of charges recommending revocation of her probationary sentence and imposition of a custodial term for the prior conviction. Ibid. The defendant remained in custody until sentencing, at which point she requested jail credits not only against the sentence for the new charges but also for the VOP sentence. Ibid.

Having determined that the defendant was in fact entitled to jail credit for the VOP sentence, we then considered the appropriate period for which that credit should have been granted. Id. at 460-61. We rejected the defendant's assertion that jail credits began to accrue upon her arrest for the new charges, reasoning that credit should not be awarded for a period of time preceding the filing of the VOP statement of charges. Id. at 461-62. Instead, we concluded "[t]he serving of the statement of charges to a defendant who is confined [on an indictable offense] triggers the award of jail credits for the period of pre-adjudication confinement against the VOP sentence and the sentence for the new offense." Ibid. We went on to note that, "[a]bsent a showing of an abusive exercise of authority, it would be unreasonable to grant defendant credit for the custodial time elapsing prior to the filing of [subsequent] charges." Id. at 462.

Here, the remand judge's factual findings showed that defendant had been arrested and detained on January 19, 2007 based on Indictment No. 07-05-0714 only. Despite an error in the presentence report reflecting otherwise, the judge found that defendant was not detained on Indictment No. 07-08-1241 until it was filed on March 13, 2007.

On appeal, defendant does not challenge those factual findings. Rather, he asserts a similar argument to the one we rejected in DiAngelo: that, in accordance with the language of Rule 3:21-8 and the policies underpinning the Rule, his jail credit for Indictment No. 07-08-1241 began to accrue upon his initial arrest for the charges in Indictment No. 07-05-0714. Cf. DiAngelo, supra, 434 N.J. Super. at 461-62. Under DiAngelo, we cannot agree with the defendant, and conclude that the remand judge correctly calculated the jail credit beginning on the March 13, 2007 filing date of Indictment No. 07-08-1241.

In conclusion, we affirm the Law Division's order denying defendant's suppression motion. With respect to the order of restitution contained in the judgment of conviction for Indictment No. 07-08-1241, we remand to the Law Division for a restitution hearing. As to the award of jail credit and gap-time credit, we affirm in part and reverse in part the Law Division's order amending the judgments of conviction. We remand to the Law Division for an amendment of the judgment of conviction on Indictment No. 10-05-0656 to reflect 749 days of gap-time credit. We do not retain jurisdiction.

 

 

1 Officer Oels, whose first name is not contained in the record, was involved in the December 27, 2006 incident. Sergeant William Oels was involved in the January 14, 2007 incident.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Two other officers also testified with regard to a Miranda suppression motion which is not part of this appeal.

4 The motion judge also grounded her decision, that the vehicle was properly searched and the evidence seized, as incident to defendant's arrest. We recognize the Court's holding in State v. Pierce, 136 N.J. 184 (1994)(a warrantless arrest for a motor vehicle offense does not authorize the search of a vehicle's passenger compartment), which involved the arrest of a motorist for driving with a suspended license. Given the constitutional search and seizure of the bag of money under the plain view exception, we need not decide whether, under the facts presented, the search and seizure would pass constitutional muster under the search incident to an arrest exception.

5 In Hernandez, the Court stated that its holding would apply prospectively to sentences imposed after its June 8, 2011 date of decision, "except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Hernandez, supra, 208 N.J. at 49-50. Here, defendant "questioned" the judge's calculation of jail credits at sentencing and thereafter filed his amended notice of appeal, which challenged the omission of gap-time and jail credits, on April 12, 2011. Thus, this appeal falls within the exception established by the Court.