SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Andrea Hernandez, a/k/a Andrea Rosario (A-64-09) (064946) and
State of New Jersey v. Derrick Wayne Rose, a/k/a Derrick W. Stewart (A-65-09) (064945)
Argued September 14, 2010 -- Decided June 8, 2011
JUDGE STERN (temporarily assigned), writing for a majority of the Court.
In these appeals the Court considers the proper application of jail and gap-time credits to cases involving defendants sentenced to imprisonment on multiple indictments. One case involves the disposition of charges in multiple counties; the other multiple charges in the same county.
Andrea Hernandez (Hernandez) was arrested by Paterson (Passaic County) police on October 25, 2006, in connection with a series of armed robberies. On January 23, 2007, while in custody awaiting disposition of the Passaic County charges, Hernandez was charged in Ocean County with third-degree burglary and theft. She was moved to the Ocean County jail the day before. On August 24, 2007, after pleading guilty, Hernandez was sentenced in Ocean County to a three-year prison term, to run concurrent with any sentence she may receive in Passaic County. The judgment of conviction also awarded Hernandez 213 days of jail credit for the “time spent in custody” between January 23 and August 23, 2007. On April 12, 2007, Hernandez was indicted in Passaic County on multiple counts. On October 4, 2007, pursuant to a negotiated plea agreement, Hernandez pled guilty in Passaic County. The plea agreement provided for concurrent sentences of twenty years, eighty-five percent of which would be subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On February 1, 2008, the Law Division in Passaic County imposed a sentence consistent with the negotiated recommendation.
At the Passaic County sentencing proceeding, Hernandez objected to the amount of jail credit that she would receive. Hernandez believed that she was entitled to more than the ninety-day credit given for time she spent in custody from her arrest in Passaic County to the day she was moved to the Ocean County Jail. Hernandez argued (as she does now) that she should also receive credit towards her Passaic County sentence for 220 days she spent in custody between the Ocean County “arrest” and sentencing for the Ocean County offense. The sentencing court rejected Hernandez’s request, noting that the requested credit had already been applied against her Ocean County sentence. The Passaic County judgment also awarded Hernandez 161 days of gap-time credit for the period that she spent in custody beginning August 24, 2007 – the date of her Ocean County sentence – until January 31, 2008 – the day preceding the Passaic County sentence.
Hernandez’s counsel argued on appeal that the trial judge should have used his discretion to grant additional credits towards Hernandez’s twenty-year Passaic County sentence. In addition, Hernandez maintained that applying gap-time credits to the “back end,” as opposed to the “front end,” of a defendant’s NERA sentence would be “meaningless” and contravene this Court’s mandate that gap-time credits be awarded in a meaningful way. The State argued for affirmance because the sentencing court “definitely looked at [the credits] carefully, knew the dates and knew what [it] was giving when [it] gave it.”
In an unpublished order, the Appellate Division affirmed the trial court’s judgment. The panel found “no abuse of discretion with respect to the application of jail credits.”