Opinion
DOCKET NO. A-0036-14T2
02-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BENIGNO ROSARIO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Haas. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-03-0607. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Benigno Rosario appeals the April 4, 2014 Law Division order denying his petition for post-conviction relief (PCR). The judge found that the five-year time bar in Rule 3:22-12(a)(1) applied because defendant's service of a prison sentence in New York did not constitute excusable neglect. The judge further found his sentence was not illegal despite the fact he was not awarded gap time in New Jersey for time served on a New York sentence. We affirm.
We need not describe the extensive proceedings surrounding defendant's convictions which are not necessary to this decision. Suffice it to say that defendant was extradited to New Jersey while serving a term of imprisonment in New York. Eventually, he entered a guilty plea to first-degree armed robbery, N.J.S.A. 2C:15-1, and first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). Pursuant to the negotiated plea agreement, on March 18, 2008, he was sentenced to an aggregate of thirty years, with parole ineligibility of fifteen years, to be served consecutive to the New York sentence. The sentencing judge, during the course of that proceeding, denied for the first time defendant's request for gap time credit for time served on the out-of-state sentence.
Defendant's appeal of his sentence, heard on the excessive sentence calendar on February 8, 2010, was denied. See R. 2:9-11.
Defendant thereafter filed this petition seeking to set aside his sentence as "unauthorized," "illegal[][,]" as well as otherwise "invalid" as a matter of law. Despite the fact that defendant did not characterize his petition in any fashion, assigned counsel filed an "amended verified petition . . . for post-conviction relief pursuant to Rule 3:22." In the brief which counsel also filed, he argued that defendant was entitled to gap time credits pursuant to the statute, N.J.S.A. 2C:44-5(b).
Defendant's pro se submission was filed July 2, 2013. This meant his petition was nearly four months out of time. See R. 3:22-12(a)(1). In addition to finding that defendant's New York incarceration did not constitute excusable neglect excusing the five-year time bar, the judge also found that defendant was not entitled to gap time credit pursuant to State v. Carreker, 172 N.J. 100, 111 (2002).
Defendant now raises the following issues on appeal:
POINT I: BENIGNO ROSARIO'S PETITION WAS NOT TIME BARRED BECAUSE HE WAS SEEKING TO CORRECT AN ILLEGAL SENTENCE AS HE WAS ENTITLED TO JAIL TIME CREDITS BECAUSE HE WAS DETAINED BY THE STATE OF NEW JERSEY RELATED TO CHARGES ARISING OUT OF NEW JERSEY.
POINT II: IN THE ALTERNATIVE, BENIGNO ROSARIO WAS ENTITLED TO GAP TIME CREDITS BECAUSE THE STATE'S ACTIONS IN REFUSING TO HONOR THE TERMS OF THE BI-STATE PLEA AGREEMENT DIRECTLY LED TO HIS REQUISITION TO NEW JERSEY AND SUBSEQUENT INCARCERATION BEFORE TRIAL ON THE VERY CHARGES THAT THE APPELLATE DIVISION ULTIMATELY DETERMINED SHOULD HAVE BEEN RESOLVED THROUGH THE BI-STATE PLEA AGREEMENT.
We note initially that claims regarding illegal sentences are not to be raised in PCR petitions, but by motion. See R. 3:21-10(b)(5). This means that the time bar that applies to PCR does not apply to claims of illegal sentence, which can be corrected at any time under Rule 2:21-10(b)(5). State v. E.W., 413 N.J. Super. 70, 77-78 (App. Div. 2010). In any event, the arguments in support of the claimed illegality in this case are so lacking in merit as to not warrant much discussion in a written opinion. R. 2:11-3(e)(2).
By illegal sentence, defendant means he was entitled to credits for time served in custody pursuant to Rule 3:21-8. The rule states that a defendant "shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and imposition of sentence." R. 3:21-8. The period of time in question is the alleged 447 days defendant was held in New Jersey, after extradition, while serving his New York sentence. The transcript of the oral argument on defendant's petition is devoid of any reference to this argument. We nonetheless briefly address the issue.
Defendant anchors his claim to State v. Hernandez, 208 N.J. 24 (2011). We state the obvious. Hernandez, decided in 2011, was to be applied "only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. On the date Hernandez was decided, defendant had no appeal pending or in the pipeline. Any entitlement to the credits he now claims did not exist at the time sentence was imposed and cannot be awarded retroactively.
Additionally, once defendant waived extradition after the issuance of a governor's warrant, while awaiting the disposition of his New Jersey charges, he was accruing credits towards his New York sentence. It is well-established that a defendant serving an out-of-state sentence is not entitled to credit for the time he is held in this state while awaiting resolution of New Jersey charges. See State v. Perry, 430 N.J. Super. 419, 427 (App. Div.), certif. denied, 216 N.J. 366 (2013). Therefore, under any theory defendant is not entitled to jail credits under Rule 3:21-8.
Next, defendant again contends he was entitled to gap time credit for time served in New York after his New Jersey arrest because of the circumstances surrounding his conviction after trial, the reversal of the conviction on appeal, and his subsequent plea bargain and sentence. Gap time credit, however, is awarded only for sentences imposed in this state. See Carreker, supra, 172 N.J. at 111.
The purpose of the gap time statute is:
to mitigate the possible manipulation of sentences by prosecutors who might delay a criminal indictment even when an inmate is available for disposition on a New Jersey offense. In the case of a defendant (like defendant here) who has fled the jurisdiction and is serving time in a foreign facility, the risk of manipulation is greatly reduced, if not vitiated, by that defendant's absence."Although this defendant did not flee, certainly he was outside of the jurisdiction, "serving time in a foreign facility[.]" Thus defendant's application for gap time credit, and claim that the sentencing judge's initial failure to grant gap time made his sentence illegal, was correctly denied.
[Id. at 113-14.]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION