STATE OF NEW JERSEY v. KENDALE T. ARMSTRONG

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0431-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENDALE T. ARMSTRONG, a/k/a
TALIV DAVIS,

     Defendant-Appellant.
_____________________________

              Submitted December 4, 2017 – Decided January 29, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 99-05-1941.

              Kendale T. Armstrong, appellant pro se.

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Stephen
              A. Pogany, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant appeals from an order denying his motion for an

award of jail credits.          We affirm.
     The facts are not disputed.             Defendant was arrested on

December 29, 1998, on charges that led to his indictment by an

Essex County grand jury.     Twenty-five days later, he was released

on bail on January 22, 1999.

     On June 21, 1999, a bench warrant was issued for his arrest

because he failed to appear for his arraignment.         On July 5, 1999,

defendant was arrested in Virginia on a kidnapping charge and held

in custody.      New Jersey subsequently lodged a detainer against

defendant   in   Virginia.    On   October    26,   2000,   defendant   was

sentenced to a fifteen-year custodial term in Virginia on the

kidnapping charge.

     On March 13, 2001, defendant returned to New Jersey pursuant

to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-

1 to -15.     On June 25, 2001, defendant pleaded guilty to three

counts of the Essex County indictment.              On November 2, 2001,

defendant was sentenced in accordance with his plea agreement to

an   aggregate    ten-year   custodial    sentence      subject   to    the

requirements of the No Early Release Act, 
N.J.S.A. 2C:43-7.2,

consecutive to his Virginia sentence.        The court awarded defendant

twenty-five days of jail credit for the time following his arrest

and prior to his release on bail.       We heard defendant's appeal of

his sentence on the sentencing calendar, R. 2:9-11, and affirmed.



                                    2                              A-0431-16T4
State v. Armstrong, A-3106-01 (App. Div. June 5, 2002) (slip op.

at 1).

     In June 2016, defendant moved for an award of jail credits

under Rule 3:21-8.         Defendant sought additional credits for two

time periods: (1) from July 5, 1999, when New Jersey lodged the

detainer in Virginia, until October 26, 1999, when defendant was

sentenced in Virginia; and (2) from March 13, 2001, when he

returned to New Jersey pursuant to the IAD, until November 28,

2001,    when   he   was   returned   to   Virginia.1   The   court    denied

defendant's motion in a written opinion.          This appeal followed.

     On appeal, defendant presents the following argument:

            POINT I

            THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
            MOTION FOR JAIL CREDITS PURSUANT TO R. 3:21-
            8.

     We have carefully reviewed the record and find defendant's

argument is without sufficient merit to warrant discussion in a




1
  Defendant also sought jail credits for the period from December
28, 1998, when he was first arrested, until January 22, 1999, when
he was released on bail. Credit for those twenty-five days was
awarded by the sentencing court and is reflected in defendant's
judgment of conviction.



                                       3                              A-0431-16T4
written opinion.      R. 2:11-3(e)(2).     We add only the following

brief comments.2

     Defendant's contention he is entitled to jail credit for the

period he was incarcerated in Virginia on the Virginia kidnapping

charge, and after New Jersey lodged a detainer, finds no support

in the law.   In State v. Joe, 
228 N.J. 125, 135 (2017), our Supreme

Court   rejected   the   identical   contention,   holding   that    "if    a

defendant is incarcerated out of state and the confinement is not

due solely to New Jersey charges, jail credit does not apply."

     Similarly, we find no merit to defendant's claim he is

entitled to jail credit for the period he was in New Jersey

pursuant to the IAD while serving his Virginia custodial sentence.

Defendant is not entitled to jail credit for that period because

although he was in temporary custody in New Jersey, he "remain[ed]

in the custody of" Virginia under the IAD, N.J.S.A. 2A:159A-5(g),

and continued to serve his Virginia custodial sentence, N.J.S.A.

2A:159A-5(f).      See State v. Carreker, 
172 N.J. 100, 115 (2002)

(finding no entitlement to jail credits where a defendant is

temporarily in New Jersey custody in accordance with the IAD while

serving an out-of-state custodial sentence); see also State v.



2
   The State does not argue, and we therefore do not address,
whether defendant's challenge to the jail credit award is barred
by our decision on defendant's direct appeal of his sentence.

                                     4                              A-0431-16T4
Hernandez, 
208 N.J. 24, 47 (2011) (finding jail credits do not

accrue while a defendant serves a custodial sentence); accord

State v. Adams, 
436 N.J. Super. 106, 115 (App. Div. 2014).

    Affirmed.




                               5                             A-0431-16T4