SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3866-99T5
DAVID MEYER,
Plaintiff-Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Defendant-Respondent.
________________________________
Argued: October 22, 2001 - Decided: December 5, 2001
Before Judges PetrellaSee footnote 11, Steinberg and Alley.
On appeal from the New Jersey State Parole
Board.
J. Michael Blake, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Blake, of counsel and on the brief).
Gregory A. Spellmeyer, Deputy Attorney
General, argued the cause for respondent (John
J. Farmer, Jr., Attorney General, attorney;
Michael J. Haas, Assistant Attorney General,
of counsel; Mr. Spellmeyer, on the brief).
The opinion of the court was delivered by
STEINBERG, J.A.D.
This appeal implicates the interplay of an award of gap-time
credit pursuant to N.J.S.A. 2C:44-5(b)(2) and the eighty-five
percent period of parole ineligibility mandated by the No Early
Release Act, N.J.S.A. 2C:43-7.2 (NERA). David Meyer is currently
serving a twelve-year sentence of incarceration imposed as a result
of his conviction for first-degree robbery.See footnote 22 Because Meyer's
conviction for first-degree robbery was considered to be a violent
crime for purposes of NERA,See footnote 33 the judge also directed that he serve
eighty-five percent of the sentence without parole. In addition,
the judge awarded Meyer 322 days of gap-time credit. The New Jersey
State Parole Board (Board) denied his application to apply the gap-
time credit to reduce the eighty-five percent parole ineligibility
term. Meyer appeals that determination.See footnote 44
On this appeal, Meyer contends that the Board's refusal to
apply the gap-time credit to the period of parole ineligibility
mandated by NERA renders the credit meaningless. He asserts that
this is in violation of the statute and is also inconsistent with
Booker v. New Jersey State Parole Board,
136 N.J. 257 (1994). We
reject those contentions.
The statutory requirement for gap-time credit is found in
N.J.S.A. 2C:44-5(b)(2), which provides as follows:
When a defendant who has previously been
sentenced to imprisonment is subsequently
sentenced to another term for an offense
committed prior to the former sentence, other
than an offense committed while in custody:
(2) Whether the court determines that the
term shall run concurrently or consecutively,
the defendant shall be credited with time
served in imprisonment on the prior sentence
in determining the permissible aggregate
length of the term or terms remaining to be
served.
The statute governs sentencing at different times for multiple
offenses and
requires that a defendant who has been
sentenced to imprisonment and is subsequently
sentenced to another term for an offense
committed prior to the imposition of the
former sentence (other than an offense
committed while in custody) be "credited" at
the time of the second sentence for so much of
the term of imprisonment as the defendant has
served on the prior sentence.
[Booker, supra, 136 N.J. at 259.]
The term "gap-time credit" is used because the credit applies to
the gap between the sentences. Richardson v. Nickolopoulos,
110 N.J. 241, 242 (1988). It is not to be confused with the credit
awarded pursuant to R. 3:21-8, commonly referred to as jail credit,
which is awarded for any time served in custody in jail or in a
state hospital between arrests and the imposition of sentence.
Ibid.
While at first blush, the gap-time statute appears relatively
simple and straightforward, its application is not as simple and
straightforward as what might first appear. Our Supreme Court
noted the gap-time statute's internal inconsistencies, as well as
the substantial difficulties that have been encountered in its
application. Booker, supra, 136 N.J. at 267. The statute has been
referred to as "a judicial nightmare." State v. Guamam,
271 N.J.
Super. 130, 135 (App. Div. 1994). Indeed, we have also referred to
gap-time credit as "a riddle wrapped in a mystery inside an
enigma." State v. Edwards,
263 N.J. Super. 256, 262 (App. Div.
1993). In any event, the gap-time statute remains in effect, and
we will endeavor to apply it consistent with the legislative intent
and previous judicial decisions.
In Richardson, the Court declined to reduce a period of parole
ineligibility imposed on a subsequent sentence which was to run
consecutively to the sentence Richardson was then serving by the
amount of gap time he was awarded on the subsequent sentence.
Richardson, supra, 110 N.J. at 254-55. Instead, the Court held
that gap-time credit is applied to the back end of the aggregated
sentences, rather than the front end.See footnote 55 See ibid. Stated another
way, the sentences are aggregated, and the aggregate length of the
sentences is reduced by the gap time. For example, if,
hypothetically, a defendant serving a flat three-year sentence was
subsequently sentenced to a flat five-year sentence and was awarded
one year of gap time, his sentences would be aggregated to a term
of eight years, but then reduced to an aggregate amount of seven
years by virtue of the award of one year gap-time credit. That
interpretation effectuates "the plain language of the statute,
which requires time served on the later offense to be credited to
the permissible aggregate length of the term or terms remaining to
be served." Booker, supra, 136 N.J. at 261. The Parole Board must
then "compute defendant's parole eligibility date on the basis of
the reduced aggregate sentence." Id. at 265 (citation omitted).
In Booker, the Supreme Court rejected defendant's contention that
his gap-time credit should reduce his period of parole
ineligibility imposed on a subsequent, concurrent sentence. Id. at
263.
N.J.S.A. 30:4-123.51(a) provides, in pertinent part, that an
inmate sentenced to a term of incarceration for a specific term of
years at the State Prison "shall become primarily eligible for
parole after having served any judicial or statutory mandatory
minimum term, or one-third of the sentence imposed where no
mandatory minimum term has been imposed less commutation time for
good behavior . . . and credits for diligent application to work in
other institutional assignments . . . ." In addition, commutation
and work credits do not reduce a period of parole ineligibility and
are only awarded subsequent to the expiration of that period.
Ibid. The statute sets forth what is commonly referred to as the
"primary eligibility date."
In what it considered to be a close decision, the Supreme
Court held that gap-time credits may advance the primary
eligibility date, indicating that "if we are to give any meaning at
all to the provision, it must involve some reduction of the
cumulative period of time to be served_a limit on the maximum term
of imprisonment that can be imposed at sentencing." Booker, supra,
136 N.J. at 265. Thus, once credits have been awarded by the
sentencing judge, the Board "must compute defendant's parole
eligibility date on the basis of the reduced aggregate sentence."
Ibid. (citation omitted). For example, by way of illustration, in
the hypothetical example previously given, after the gap-time is
awarded, effectively reducing the aggregate sentence from eight
years to seven years, the Board must compute defendant's parole
eligibility date on the basis of the reduced aggregate sentence of
seven years. In effect, that determination reduces the primary
eligibility date by one-third of the gap-time credit.
The Court also noted that "[i]f gap-time credits do not affect
prisoners' parole-eligibility dates, we would truly have what the
Public Defender calls 'bogus credits,' a calculation without any
effect." Seizing on that language, Meyer argues that if gap-time
credits do not reduce the period of parole ineligibility mandated
by NERA, they will be reduced to "bogus credits." Specifically, he
contends that a NERA sentence involving a mandated period of parole
ineligibility of eighty-five percent of the base term will
ordinarily result in an immediate release when the term is reduced
by the application of commutation credit and work credit. Thus, he
contends that the front-end of the sentence has become the back-end
of the sentence and, if he is not awarded gap-time credit against
the period of parole ineligibility, those credits will have been
rendered meaningless or "bogus." We reject that contention.
The construction urged by Meyer conflicts with the plain
language of the statute that requires that the inmate "be credited
with time served . . . on the prior sentence in determining the
permissible aggregate length of the term or terms remaining to be
served."See footnote 66 N.J.S.A. 2C:44-5(b)(2); accord Richardson, supra, 110
N.J. at 245. In addition, the construction urged by Meyer
conflicts with Booker and Richardson insofar as those cases hold
that a judicially imposed period of parole ineligibility, pursuant
to statute or discretion, is not reduced by gap time. See Booker,
supra, 136 N.J. at 263; Richardson, supra, 110 N.J. at 254-55. In
our view, the Legislature has spoken in clear and unambiguous terms
that a person convicted of a NERA offense must serve eighty-five
percent of the sentence imposed before becoming eligible for
release. To adopt Meyer's argument would be inconsistent with that
clear legislative intent.
We recognize that the general purpose of gap time "is to avoid
the manipulation of trial dates to the disadvantage of defendants
and to put defendants in the same position that they would have
been 'had the two offenses been tried at the same time.'" Booker,
supra, 136 N.J. at 260 (quoting Model Penal Code § 7.06 cmt., at
278 (1962)). However, not all delay is caused by dilatory tactics
of the prosecution. Unavailability of court or counsel are some of
the causes of delay. On occasion, defense strategy or the
availability of defense counsel or witnesses dictates the order of
dispositions. Richardson, supra, 110 N.J. at 251. Sentencing
flexibility allows sentencing judges sufficient discretion to make
necessary adjustments to protect defendants in the event of
prosecutorial delay.
Affirmed.
Footnote: 1 1Although Judge Petrella did not participate in oral argument, with the consent of the parties, he has been added to the panel for the disposition of this appeal. Footnote: 2 2He was given concurrent sentences for other offenses. Footnote: 3 3We previously affirmed NERA's applicability under the facts of this case. State v. Meyer, 327 N.J. Super. 50 (App. Div. 1999), certif. denied, 164 N.J. 191 (2000). Footnote: 4 4In his initial letter to the Board, Meyer's attorney posed a general inquiry as to how the 322 days of gap-time credit would be applied. He asked whether it would be deducted from the period of parole ineligibility or from the additional five years of parole supervision required by NERA. The Board, in response, stated that the gap-time credit would not be applied to reduce the period of parole ineligibility. The Board also noted that the judgment of conviction did not include the imposition of the mandatory, five-year period of parole supervision. Thus, the Board indicated it would seek clarification from the sentencing court. We cannot determine from the record whether the sentencing judge clarified the judgment of conviction in that respect. In any event, in his letter, then Chairman of the Board, Andrew B. Consovoy, stated that during the period of parole supervision, if one was imposed by the judge, Meyer would be in the legal custody of the Commissioner of the Department of Corrections (Commissioner). Thus, he directed counsel to the Commissioner for a determination as to whether gap time would be applied to reduce the period of parole supervision. Ultimately, the Commissioner, through his designee, advised Meyer's attorney that "there is no provision for 'gap-time' credit to the additional five years parole supervision." The Commissioner, through his designee, also stated: "The matter of the parole supervision and the calculation of our parole issues do not fall under the jurisdiction" of the Commissioner. The question of whether gap-time credit may be applied to reduce the period of parole supervision is not raised on this appeal, and we express no opinion regarding that question. Footnote: 5 5On the other hand, jail credit awarded pursuant to R. 3:21- 8 comes off the front of the sentence. See Booker v. New Jersey State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993), aff'd, 136 N.J. 257 (1994). Footnote: 6 6In addition, Meyer overlooks the fact that commutation credit may be forfeited if a prisoner has been guilty of flagrant misconduct. N.J.S.A. 30:4-140.