STATE OF NEW JERSEY v. BILAL BELLAMY

NOT FOR PUBICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2959-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. February 20, 2020
APPELLATE DIVISION
BILAL BELLAMY,
Defendant-Appellant.
__________________________
Argued January 25, 2019 – Decided August 28, 2019
Before Judges Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-08-2027.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the brief).
Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans,
of counsel and on the brief).
The opinion of the court was delivered by
DEALMEIDA, J.A.D.
Defendant Bilal Bellamy appeals from the March 3, 2017 amended
judgment of conviction awarding him eighty-six days of jail credits on the
aggregate ten-year sentence he received on his convictions of aggravated
manslaughter and unlawful possession of a weapon. Defendant argues he was
entitled to 1149 days of jail credits. We affirm.
I.
On May 18, 2012, defendant was sentenced to a five-year term of
imprisonment, subject to an eighty-five-percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by
a three-year period of parole supervision for first-degree robbery.
On September 30, 2013, defendant was released from prison and began
his three-year period of parole supervision. On November 7, 2013, defendant
shot and killed Ricardo Brown.
On January 3, 2014, defendant was arrested for violations of parole
unrelated to the homicide and incarcerated to await action by the Parole Board.
On January 9, 2014, defendant, while incarcerated, was arrested for the
homicide.
On February 6, 2014, the Parole Board revoked defendant's parole, setting
a twelve-month period of parole ineligibility.
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On August 22, 2014, a grand jury indicted defendant on charges arising
from the homicide. Defendant was charged with: first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); second-degree conspiracy to commit burglary, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:18-2; second-degree burglary, N.J.S.A. 2C:18-2(b);
first-degree robbery, N.J.S.A. 2C:15-1(a); first-degree felony murder, N.J.S.A.
2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two
counts of second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:18-2.
On January 6, 2015, the Parole Board denied defendant parole, setting a
twenty-three-month period of parole ineligibility. On December 8, 2016,
defendant finished serving his period of parole supervision on the original
sentence. He remained incarcerated on the pending charges arising from the
homicide.
On December 14, 2016, defendant pled guilty to first-degree aggravated
manslaughter and second-degree unlawful possession of a handgun. The State
agreed to recommend a ten-year prison sentence, with an eighty-five-percent
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period of parole ineligibility, to run concurrent to his sentence on the parole
violation, which at that point he had completed.
On March 3, 2017, the trial court sentenced defendant to a ten-year period
of incarceration, subject to an eighty-five-percent period of parole ineligibility
pursuant to NERA for manslaughter and a ten-year period of incarceration, with
five years of parole ineligibility, on the weapons conviction to run concurrently
with the sentence on the manslaughter conviction. The court ordered the
sentences on these convictions to run concurrently with defendant's sentence for
the parole violation. The court dismissed the remaining charges arising from
the homicide.
With respect to the question of jail credits, the court considered the
following dates:
(1) 01/03/2014 Arrest on violation of parole supervision
(2) 01/09/2014 Arrest on homicide offenses
(3) 02/06/2014 Parole revoked on prior conviction, defendant must serve
twelve months before becoming parole eligible
(4) 01/06/2015 Parole denied on prior conviction, defendant must serve
twenty-three months before becoming parole eligible
(5) 12/08/2016 Defendant completes parole violation sentence
(6) 12/14/2016 Defendant pleads guilty to homicide offenses
(7) 03/03/2017 Defendant sentenced for homicide offenses
At sentencing, defendant argued he should be credited with jail time
served between date (2), the day he was arrested on the homicide offenses, and
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date (7), the day of sentencing on his homicide offenses, for a total of 1149 days.
The State argued defendant should be credited with time served between date
(5), the day defendant completed his parole revocation sentence, and date (7),
the day of sentencing on his homicide offenses, for a total of eighty-six days.
The court, relying on the holding in State v. Black, 153 N.J. 438 (1998), adopted
the State's position and credited defendant with eighty-six days of jail credit.
This appeal followed. 1 Defendant makes the following argument for our
consideration:
DEFENDANT IS ENTITLED TO JAIL CREDITS ON
THIS CASE FROM THE DATE OF HIS ARREST ON
THE INSTANT CHARGES TO THE DATE OF
SENTENCING.
II.
Rule 3:21-8 provides that "[t]he defendant shall receive credit on the term
of a custodial sentence for any time served in custody in jail or in a state hospital
between arrest and the imposition of sentence." The credit provided by the Rule
is commonly known as a "jail credit." Richardson v. Nickolopoulos, 110 N.J.
241, 242 (1988).
1
This appeal originally was listed on an excessive sentence calendar. We
directed that the matter be briefed and placed on a plenary calendar.
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Jail credits are "day-for-day credits." Buncie v. Dep't of Corr., 382 N.J.
Super. 214, 217 (App. Div. 2005). They are applied to the "front end" of a
defendant's sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994).
Jail credits therefore reduce a defendant's overall sentence and any term of
parole ineligibility. State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013);
State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div. 1996). Jail credits prevent
a defendant from serving double punishment because without them time spent
in custody before sentencing would not count toward the sentence. State v.
Rawls, 219 N.J. 185, 193 (2014).
Application of Rule 3:28-1 to facts substantively equivalent to those
presently before us was squarely addressed by the Supreme Court in Black. In
that case, the defendant was originally sentenced to a three-year term for drug
offenses. 153 N.J. at 441. He was released on parole but violated the conditions
of parole when he failed to report to his parole officer. Ibid. A parole warrant
was issued and he was also indicted for absconding. Id. at 441-42. The
defendant was eventually returned to custody for the violation of parole, at
which point his parole was formally revoked and he was ordered to complete the
remaining 337 days of imprisonment on his drug conviction, commencing as of
the date he returned to custody. Id. at 442. The defendant later pled guilty to
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the absconding charge in return for the State's agreement to recommend a three-
year sentence to run concurrently with the defendant's original sentence. Ibid.
The defendant was sentenced to the term recommended by the State. Ibid.
Although the 103 days the defendant spent in custody from the date of his arrest
on the parole violation to the day prior to sentencing was applied to his parole
violation term, he sought to also have those days applied to his sentence on the
absconding sentence. Ibid.
The Court rejected the defendant's argument. The Court began its analysis
by noting that Rule 3:21-8 "has been interpreted to require credit only for 'such
confinement as is attributable to the arrest or other detention resulting from the
particular offense.'" Id. at 456 (quoting State v. Allen, 155 N.J. Super. 582, 585
(App. Div. 1978)). In addition, the Court observed that the defendant's "return
to custody arose under the parole warrant." Id. at 456. The Court held that
when a parolee is taken into custody on a parole
warrant, the confinement is attributable to the original
offense on which the parole was granted and not to any
offense or offenses committed during the parolee's
release. If the parole warrant is thereafter withdrawn
or parole is not revoked, and the defendant is convicted
and sentenced on new charges based on the same
conduct that led to the initial parole warrant, then jail
time should be credited against the new sentence. If
parole is revoked, then the period of incarceration
between the parolee's confinement pursuant to the
parole warrant and the revocation of parole should be
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credited against any period of reimprisonment ordered
by the parole board. Any period of confinement
following the revocation of parole but before
sentencing on the new offense also should be credited
only against the original sentence, except in the rare
case where the inmate has once again become parole
eligible on the original offense but remains incarcerated
because of the new offense.
[Id. at 461.]
Defendant concedes that the facts of the present appeal are substantively
identical to those before the Court in Black and that the trial court correctly
calculated the number of jail credits to which defendant is entitled under Black.
Defendant therefore agrees that if Black remains good law the amended
judgment of conviction should be affirmed. He argues, however, the holding in
Black has effectively been overruled by State v. Hernandez, 208 N.J. 24 (2011),
which he argues requires he receive jail credits against the sentence on his
homicide convictions for the entire time that he was incarcerated after his arrest
for revocation of parole. We disagree.
In Hernandez, the Court considered how Rule 3:21-8 applies to defendants
incarcerated pretrial simultaneously on multiple separate charges. Hernandez
was arrested on armed robbery charges and incarcerated in the county jail. Id.
at 29. A few months later, while still incarcerated, she was arrested on separate
burglary charges. Ibid. Ultimately, Hernandez pled guilty to the burglary
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charges and was sentenced to a three-year term of imprisonment. Ibid. She
received jail credits from the time of her arrest on the burglary charges to the
day before sentencing on those charges. Ibid.
Hernandez thereafter pled guilty to the robbery charges on which she had
first been arrested. Id. at 30. She received a twenty-year term of incarceration
to run concurrently to the sentence on her burglary conviction. Ibid. She
received ninety days of jail credits, equal to the time from the day she was
arrested on the robbery charges to the day she received the second charges. Ibid.
Hernandez appealed her sentence, arguing that she was entitled to an additional
220 days of jail credits toward her sentence on the robbery charges for the period
between her arrest on the burglary charges and the sentencing on her burglary
charges. Ibid.
The Court held that a defendant held simultaneously on separate pending
charges is entitled to jail credits against the sentences for each of the separate
charges for the time between the defendant's first arrest and the date of
sentencing on the first charges on which the defendant is convicted. Id. at 47.
As the Court explained,
[t]here is nothing new or extraordinary in this holding.
Prior to sentencing on pending charges, a defendant
accrues and is entitled to jail credits for time spent in
custody, but once the first sentence is imposed a
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defendant is only entitled to gap-time credits for time
accrued thereafter when sentenced on the other charges.
[Id. at 47.2]
While this holding represented a change in the practice of how jail credits
are calculated for defendants detained pretrial on multiple separate charges, the
Court nowhere in Hernandez suggested it was departing from its holding in
Black. To the contrary, in Hernandez the Court discussed its holding in Black
at length, id. at 42-43, and explained that the defendant in Black was "serving a
custodial sentence, and we concluded [he was] not entitled to presentence jail
credits against a new sentence for time served in custody while those charges
were pending." Id. at 44. The Court continued,
[t]he custodial status of Hernandez . . . differs from that
of the defendant[] in Black[.] Hernandez . . . seek[s]
jail credit for time spent in presentence custody on
multiple charges and [is] not seeking jail credits for
time accrued after imposition of a custodial sentence.
We have not previously addressed these circumstances
or the meaning of Rule 3:21-8 when a defendant who is
incarcerated awaiting disposition on charges is also
held awaiting disposition on other charges.
2
Gap-time credits are awarded when a defendant held on separate pending
charges is given separate sentences on different dates. N.J.S.A. 2C:44-5(b). The
credits are applied to the second sentence the defendant receives and calculated
on the time the defendant spends in custody after he or she begins serving the
first sentence but before imposition of the second sentence. Gap-time credits
are inapplicable here, because defendant was held for violation of parole
supervision imposed on a prior conviction when charged with separate offenses.
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[Id. at 45.]
As the Court succinctly stated:
Today we simply clarify the manner in which jail
credits, which are earned prior to the imposition of the
first custodial sentence, are to be awarded with respect
to multiple charges. Again, once the first sentence is
imposed, a defendant awaiting imposition of another
sentence accrues no more jail credit under Rule 3:21-8.
[Id. at 50.]
The Court unequivocally stated that it considered its holding in Black to apply
to circumstances different from those before it in Hernandez.
We have carefully reviewed the precedents interpreting Hernandez on
which defendant relies in support of his argument that Black has effectively been
overruled. Those decisions apply Hernandez in various circumstances, none of
which concern a defendant incarcerated on a parole violation while awaiting
disposition of separate charges. In the absence of a Supreme Court opinion
directly addressing the circumstances before the Court in Black, and overruling
its interpretation of Rule 3:21-8, we decline to stray from its unequivocal
holding precluding the award of the additional jail credits sought by defendant.
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To the extent we have not specifically addressed any of defendant's
remaining arguments it is because we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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