State of New Jersey v. Jessica E. Perry ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-4000-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JESSICA E. PERRY, a/k/a
JESSICA PERRY, J-ROCK,
QUAYONNA CROUCH,
and LAKEISHA JONES,
Defendant-Appellant.
_______________________
Submitted January 9, 2024 – Decided February 5, 2024
Before Judges Whipple and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 19-06-0966.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Shiraz I. Deen,
Assistant Prosecutor, on the brief).
PER CURIAM
This case comes to us after being referred to a merits panel from the
sentencing appeals calendar. Defendant challenges the July 26, 2022 order
denying her motion for reconsideration of a prior order denying her application
for gap-time credits. The trial judge denied defendant gap-time credits based on
our Supreme Court's decision in State v. Carreker, 172 N.J. 100, 111 (2002).
We affirm.
Defendant raised the following issues on appeal:
POINT I
[Defendant] is entitled to gap-time or equitable credit
for a grossly excessive 529-day delay before Ocean
County allowed her to appear in court via Zoom on a
[violation of probation] (VOP) statement of charges.
Alternatively, to avoid an arbitrary intercounty
disparity in sentencing practices, [defendant] is entitled
to gap-time or equitable credit for at least the 337-day
delay before Ocean County allowed her to appear in
court via Zoom after Mercer County had already
allowed her to appear in court via Zoom from the same
facility on the same VOP statement of charges.
POINT II
The State has consented to [fifty-two] days of credit
under R. 3:21-8(b) for time spent on probation at
Integrity House. 1
1
On January 11, 2024, pursuant to the parties' agreement, we entered an order
to reflect the fifty-two days of Rule 3:21-8 credit owed to defendant. Thus, only
Point I remains for our consideration.
A-4000-21
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The facts are undisputed. On June 25, 2019, defendant was indicted in
Ocean County for second-degree eluding, N.J.S.A. 2C:29-2(b); third-degree
receiving stolen property, N.J.S.A. 2C:20-7, third-degree distribution of CDS,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5), fourth-degree obstruction,
N.J.S.A. 2C:29-1; and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b).
On October 1, 2019, defendant entered a guilty plea to second-degree
eluding, third-degree distribution of CDS, and fourth-degree obstruction. In
exchange for her guilty plea, the State agreed to recommend a five-year term of
Recovery Court probation with an alternative aggregate sentence of five years
of incarceration. The State also anticipated consolidation of these charges with
defendant's then-pending Mercer County VOP charge.
The court sentenced defendant to a five-year term of Recovery Court
probation, with a six-month driver's license suspension, and awarded 218 days
of jail credit. The remaining charges were dismissed. On November 1, 2019,
defendant began her probationary sentence at Integrity House. On December
23, 2019, she absconded from Integrity House, resulting in a VOP.
On August 13, 2020, defendant was arrested in Maine for being a fugitive
and on various drug charges. On October 21, 2020, she was sentenced in Maine
to three years of incarceration. On January 28, 2021, Ocean County probation
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officers filed an addendum to defendant's VOP, based on her Maine court case
and her failure to pay child support. On August 9, 2021, defendant pleaded
guilty to her Mercer County VOP, and her probation was terminated at that time.
On March 15, 2022, defense counsel asked the court in Ocean County to
permit virtual sentencing for the Ocean County VOP while defendant was still
in Maine, which the court allowed. On July 12, 2022, the court permitted
defendant to appear via Zoom from Maine, and she pleaded guilty to her Ocean
County VOP. The court terminated her Recovery Court probation and sentenced
her to the alternative five-year aggregate sentence, to run concurrent with her
sentence on her Maine charges.
Defendant applied for gap-time credit for the period from January 28,
2021 through July 11, 2022—the period between the issuance of the amended
VOP and her VOP sentencing. The court denied her application. Defendant
moved for reconsideration, and the court denied reconsideration, holding
defendant was not entitled to such a credit as a matter of law. On November 21,
2022, defendant appealed; the matter was placed on the excessive sentencing
calendar and was ultimately transferred to the plenary calendar.
Defendant argues that she is entitled to 529 days of equitable gap-time
credit toward her Ocean County VOP for the time she spent in custody in Maine
A-4000-21
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that was solely attributable to Maine criminal charges. This argument is
meritless, because the gap-time statute does not apply to this time period. Gap-
time credits are governed by N.J.S.A. 2C:44-5(b), which provides, in relevant
part:
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, . . . 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.
Further, our Supreme Court has explicitly rejected out-of-state custody for
out-of-state charges as a basis for New Jersey gap-time credit. In Carreker, our
Supreme Court held it was the Legislature's intent to preclude gap-time credits
from applying to custody resulting from out-of-state sentences:
[T]he court below reasoned that the term "aggregate,"
within the framework of the statute, cannot encompass
an out-of-state term as New Jersey prison authorities
have no jurisdiction to "aggregate" out-of-state
sentences. We reason similarly. We are satisfied that
by including the term "aggregate" in the gap-time
provision, the Legislature intended that provision to
relate solely to in-state sentences.
[172 N.J. at 111 (internal citation omitted), abrogated
on other grounds by State v. Rawls, 219 N.J. 185, 193-
94 (2014).]
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In short, Carreker explicitly bars the interpretation of N.J.S.A. 2C:44-5(b)
which defendant asks this Court to adopt.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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