STATE OF NEW JERSEY v. JAMES J. CAMPILONGO

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NOT FOR PUBLICATION WITHOUT THE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.

JAMES J. CAMPILONGO,

Defendant-Appellant.

December 18, 2014

Submitted September 3, 2014 - Decided

Before Judges Ostrer and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 10-06-0226.

James J. Campilongo, appellant pro se.

Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James J. Campilongo appeals from the Law Division's March 22, 2013 denial of his motion for jail credits pursuant to R. 3:21-8. The Law Division denied defendant's request because defendant was being held on a parole warrant during the period for which defendant sought credit against his sentence for new offenses he committed while on parole.

Prior to defendant's parole, he was serving a seven year sentence in prison for second-degree possession with intent to distribute a controlled dangerous substance (CDS) within five hundred feet of a public housing facility, in violation of N.J.S.A. 2C:35-7.1(a). He served a portion of his sentence and was released on parole. While on parole, defendant moved to Vermont and the New Jersey State Parole Board transferred his parole supervision to the Vermont Parole Board through the Interstate Compact for Adult Offender Supervision. N.J.S.A. 2A:168-14.

Defendant remained in Vermont until January 15, 2010 when he received permission from the Vermont Parole Board to travel to New Jersey until January 17, 2010. During his short visit, police arrested and charged defendant with new CDS offenses. Defendant was released on bail on February 4, 2010 and he returned to Vermont. When he arrived in Vermont, he reported his new arrest to the Vermont Parole Board.

The Sussex County Prosecutor's Office applied for the revocation of defendant's parole. The New Jersey State Parole Board granted the application for an accelerated parole revocation hearing and issued a parole warrant for defendant's arrest. On March 4, 2010, police in Vermont arrested defendant and placed him in custody for extradition to New Jersey to be held pending his parole hearing.

While waiting for his hearing, on July 28, 2010, defendant pled guilty to second-degree possession of CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5(a)(1) and (b)(2). The court sentenced him to ten years in prison with a forty-nine month period of parole ineligibility on the new charge. The court granted him twenty days jail credit for the time served between January 16, 2010 and February 4, 2010.

A hearing officer later conducted a parole violation hearing on September 17, 2010 and determined defendant did not present any information at the hearing "to overcome the statutory presumption that parole shall be revoked" because of his recent conviction. Accordingly, the Parole Board revoked his parole.

Defendant later filed a motion to be awarded additional jail credits towards his July 28, 2010 sentence pursuant to R. 3:21-8 for the time he spent in custody from March 4, 20101 until he was sentenced on the new charge. In a letter opinion, Judge N. Peter Conforti denied defendant's motion. Judge Conforti found the Judgment of Conviction accurately stated defendant's jail credits because he was

taken into custody on the parole warrant and [his] parole was later revoked [so] the time spent in custody from March 4, 2010 until July 28, 2010 is attributable to the original conviction on which parole was granted and not to the [January 2010] offense . . . . See State v. Black, 153 N.J. 438, 461 (1998).

Defendant's appeal followed.

Before us, defendant argues two points

POINT I. DEFENDANT WAS ARRESTED AND DETAINED THROUGH A PAROLE WARRANT AFTER SECURING BAIL AT THE REQUEST FROM THE SUSSEX COUNTY PROSECUTOR'S OFFICE THUS HIS INCARCERATION WAS DUE TO "OTHER DETENTION" AND HELD ON THE NEW OFFENSE THEREFORE CREDITS SHOULD BE APPLIED UNDER R. 3:21-8.

POINT II. PAROLE BOARD FAILED TO REVOCATE APPELLANT AND CONDUCT AN ACCELERATED HEARING AND JAIL CREDITS SHOULD BE AWARDED UNDER STATE V. BLACK, STATE V. HARVEY AND STATE V. HERNANDEZ.

According to defendant, jail credits should be awarded towards the new offense because he was sentenced before his parole was revoked. We have considered these arguments in light of the record and applicable legal standards. We affirm.

Once defendant was arrested on the parole warrant, any time he spent in custody was attributable to his original sentence and not the new charge. A parolee is subject to incarceration for violating a condition of his uncompleted portion of the custodial sentence and "upon revocation continues to serve the custodial sentence from which he or she had been released." State v. Adams, 436 N.J. Super. 106, 114 (App. Div. 2014). While serving a sentence, jail credits do not accrue. Id. at 115.

In State v. Harvey, 273 N.J. Super. 572, 573-74 (App. Div. 1994), we explained

Although [Rule] 3:21-8 provides that a defendant shall receive credit for any pre-sentence custody, once a parole warrant was lodged defendant was no longer confined solely as a result of the new charges. Even if defendant had been able to post bail on the new charges, he would have remained in custody. N.J.S.A. 30:4-123.62(a)(2) provides that, "[n]o parolee held in custody on a parole warrant shall be entitled to release on bail." Therefore, after the detainer was lodged defendant's incarceration was attributable to the violation of parole.

[Id. at 574-75 (emphasis added)]

"[W]hen a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release." State v. Black, 153 N.J. 438, 461 (1998).2 As a result, there is no merit to defendant's claim for additional jail credits.

Finally, defendant's claim against the State Parole Board for failure to conduct a prompt parole revocation hearing was not appealed within the agency to the full parole board. Since there was no final agency action, this claim is not properly before us for our review. R. 2:2-3(a)(2).

Affirmed.

1 The State mentions in its brief March 30, 2010, when defendant was extradited to New Jersey, as the date defendant requested to begin receiving jail credit. However, defendant claims he requested jail credit in his motion for the period beginning March 4, 2010 after he was arrested in Vermont. Judge Conforti's letter opinion refers to both dates.

2 The Court did not disturb our holding in Black in its later decision in State v. Hernandez, 208 N.J. 24, 42-45 (2011). That case dealt with the issue of awarding jail credits for multiple charges for which a defendant was being held prior to sentencing. It did not involve an incarceration as a result of a parole violation.