STATE OF NEW JERSEY VS. ROBERT RUCKERÂ (13-09-1176 AND 13-09-1178, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3295-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT RUCKER,
Defendant-Appellant.
_________________________________
Submitted November 1, 2016 – Decided June 8, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 13-09-1176 and 13-09-1178.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Brian D. Gillet,
Deputy First Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Robert Rucker appeals from his judgments of
conviction dated October 15 and 17, 2014. Defendant pled guilty
to unlawfully possessing a .45 caliber Glock handgun and to
possessing it despite having a Michigan felony conviction. He
challenges the suppression ruling and aspects of his sentence. We
affirm his convictions, vacate his sentence in part, and remand.
I.
The following facts were found by the suppression court or
where indicated were testified to at the suppression hearing. On
July 8, 2013, Lieutenant Edgar Velasquez of the Piscataway Township
Police was contacted by a homicide detective in the Detroit police
department. The detective informed Velasquez that Detroit
authorities had issued an arrest warrant for defendant for
homicide, that he was a fugitive, and that he was believed to be
in possession of a handgun which was the murder weapon. The
detective also informed Velasquez defendant was "currently
staying" in Piscataway in a Motel Six in Room 240 and that the
length of stay was July 4 to July 18, 2013.1 The detective added
defendant was believed to be with a woman. The detective told
Velasquez the room was registered under the name "Anna Cunnegan."2
1
Velasquez initially stated, and the court's opinion repeats,
that the length of stay was to July 14, but he corrected it to
July 18 after consulting his report.
2
This alleged name is spelled in various ways in the record.
2 A-3295-14T1
Piscataway officers obtained a copy of the Detroit arrest
warrant for defendant. They also confirmed the Piscataway Motel
Six's Room 240 was registered under the name "Anna Cunnegan"
through July 18, 2013. The suppression court found the Piscataway
officers corroborated the "[h]otel, length of stay, name of person,
[and] room."
Piscataway used its SWAT team to execute the arrest warrant.3
One part of the team listened through the door and heard a male
voice. According to Lieutenant Velasquez, the officers attempted
to enter the room surreptitiously using a key card, but the door's
security latch was engaged and the unsuccessful entry made noise.
They used a ram to get through the door and employed a flash-bang
device. They found defendant and a woman, J.S.4 Defendant and
J.S. were ordered to a prone position on the floor with their arms
outstretched in front of them.
Patrol officer Allen Barboiu entered the room with the second
part of the SWAT team. He saw a rolled-up air mattress within one
to two feet of defendant's outstretched hands. Barboiu testified
defendant was not handcuffed, the mattress was within his grasp,
3
Velasquez testified "it was a high risk arrest warrant, because
. . . it's a homicide suspect, with a weapon in his possession."
4
We use her initials because the indictment was dismissed against
her after defendant pled guilty and was sentenced.
3 A-3295-14T1
and "his head was actually lifted and he had his eyes on" the
rolled-up air mattress. Because of defendant's focus and proximity
to the rolled-up air mattress, Barboiu secured and unrolled it,
uncovering a concealed handgun. Barboiu testified he seized the
handgun with a full magazine and another bullet.
In Indictment Nos. 13-09-1176 and 13-09-1178, defendant was
charged respectively with second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b), and second-degree certain persons
not to have a firearm, N.J.S.A. 2C:39-7(b)(1). The trial court
denied "defendant's motion to suppress evidence seized from his
room at Motel Six." Defendant moved for reconsideration, and the
court reaffirmed its denial of suppression. Defendant pled guilty
to the charged offenses in return for a recommendation of five
years in prison with three years of parole ineligibility for
unlawful possession and a consecutive five years in prison with
five years of parole ineligibility for the certain persons
offense.5 The court imposed the recommended sentence.
Defendant appeals, arguing:
POINT I - POLICE ENTRY INTO THE HOTEL ROOM
REGISTERED TO ANNE CUNNIGAN WITH ONLY AN
ARREST WARRANT FOR ROBERT RUCKER WAS UNLAWFUL.
POINT II - A REMAND FOR RESENTENCING IS
NECESSARY BECAUSE DEFENDANT WAS NOT AWARDED
5
Each of these sentences was the legal minimum for the offense.
N.J.S.A. 2C:43-6(a)(2), (c) (2007); N.J.S.A. 2C:39-7(b)(1).
4 A-3295-14T1
CREDITS TO WHICH HE IS ENTITLED UNDER STATE
V. HERNANDEZ; AND THE TRIAL COURT FAILED TO
PROVIDE REASONS FOR CONSECUTIVE SENTENCES.
II.
We first address the denial of suppression. We must hew to
our "deferential standard of review." State v. Rockford, 213 N.J.
424, 440 (2013). "'[A]n appellate court reviewing a motion to
suppress must uphold the factual findings underlying the trial
court's decision so long as those findings are supported by
sufficient credible evidence in the record.'" Ibid. (alteration
in original) (citation omitted). "Those findings warrant
particular deference when they are '"substantially influenced by
[the trial court's] opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot
enjoy."'" Ibid. (citation omitted). "Thus, appellate courts
should reverse only when the trial court's determination is 'so
clearly mistaken "that the interests of justice demand
intervention and correction."'" State v. Gamble, 218 N.J. 412,
425 (2014) (citation omitted).
A.
The suppression claim defendant raises on appeal was not
raised in the trial court. Before addressing that concern, it is
helpful to review the law pertinent to that claim.
5 A-3295-14T1
"[U]nder both the Fourth Amendment to the United States
Constitution and Article I, Paragraph 7 of our State Constitution,
searches and seizures conducted without warrants issued upon
probable cause are presumptively unreasonable and therefore
invalid." State v. Elders, 192 N.J. 224, 246 (2007). "Under our
constitutional jurisprudence, when it is practicable to do so, the
police are generally required to secure a warrant before conducting
a search of certain places, such as a hotel room." State v.
Hathaway, 222 N.J. 453, 468 (2015) (citations omitted). Here,
defendant conceded the officers had a valid arrest warrant.
"An arrest warrant 'implicitly carries with it the limited
authority to enter a dwelling' where the suspect lives when there
is reason to believe the suspect is inside." State v. Brown, 205
N.J. 133, 145 (2011) (quoting Payton v. New York, 445 U.S. 573,
603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1980)); see,
e.g., State v. Jones, 143 N.J. 4, 15 (1995) (holding the arrest
warrant for Collier allowed the officers the authority to enter
the apartment "in which Collier lived when there was reasonable
grounds to believe he was there"). "Generally speaking, this
principle extends to the target's hotel or motel room, since such
an accommodation is akin to a temporary residence." United States
6 A-3295-14T1
v. Pelletier, 469 F.3d 194, 199 (1st Cir. 2006); see 3 LaFave,
Search & Seizure § 6.1(b), at 381 (5th ed. 2012).6
Nonetheless, "[t]o search for the subject of an arrest warrant
in the home of a third party, the police must also obtain a search
warrant . . . absent exigent circumstances or consent." Brown,
supra, 205 N.J. at 145 (citing Steagald v. United States, 451 U.S.
204, 216, 101 S. Ct. 1642, 1649-50, 68 L. Ed. 2d 38, 48 (1981)).
"[A]bsent special circumstances, a police officer cannot search
for the subject of an arrest warrant in a home where the subject
is merely a visitor without first obtaining a search warrant."
State v. Cleveland, 371 N.J. Super. 286, 294 (App. Div.), certif.
denied, 182 N.J. 148 (2004).
To implement both precepts, we apply the standard that, "in
the absence of consent or exigency, an arrest warrant is not
lawfully executed in a dwelling unless the officers executing the
warrant have objectively reasonable bases for believing that the
person named in the warrant both resides in the dwelling and is
within the dwelling at the time." Id. at 299 (quoting State v.
Miller, 342 N.J. Super. 474, 479 (App. Div. 2001)). In Miller,
supra, we affirmed suppression because the officers "did nothing
to confirm independently the snippet of opinion they had received"
6
"Target" is used as a shorthand for the person named in the
arrest warrant. See Pelletier, supra, 469 F.3d at 199.
7 A-3295-14T1
that the target was living with a woman, who credibly denied he
lived there. 342 N.J. Super. at 500; cf. State v. Craft, 425 N.J.
Super. 546, 554 (App. Div. 2012) (finding "the trial court's
reliance on Miller was misplaced" because a detective "knew the
[target's] family resided at the address provided by [a police]
intelligence officer").
We have applied that standard to hotel rooms. In Cleveland,
supra, a confidential informant told Officer Montgomery the
"defendant was 'staying' with a woman" at a hotel and "the two
were sleeping in room 304 at the time of the call." 371 N.J.
Super. at 291. "Yet, this informant also told Montgomery that
Ebony Brown . . . was the 'legal tenant' of room 304, which
presumably meant that she, rather than defendant, had rented the
room. And, while Montgomery said that he knew defendant frequented
the Inn, he had no specific information that defendant resided at
the Inn." Id. at 295. We ruled Montgomery lacked "'objectively
reasonable [] grounds to believe that defendant was actually
residing in . . . room 304,'" rather than that he "was a visitor
in Brown's room." Ibid. (alteration in original).
Nevertheless, an arrest warrant is sufficient to authorize
entry if the police have a reasonable belief, "regardless of the
name in which the motel room was registered, [that] the defendant
— and only the defendant — was occupying it." Pelletier, supra,
8 A-3295-14T1
469 F.3d at 200-01. Similarly, "[a]s long as the officers
reasonably believed [the target] was a co-resident of the room,
the entry into the room to arrest [him with an arrest warrant] was
a reasonable one" even if it registered to someone other than the
target. United States v. Junkman, 160 F.3d 1191, 1194 (8th Cir.
1998), cert. denied, 526 U.S. 1094, 119 S. Ct. 1511, 143 L. Ed.
2d 663 (1999); see United States v. Jones, 696 F.2d 479, 486-87
(7th Cir. 1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2453, 77
L. Ed. 2d 1333 (1983); see also 3 LaFave, supra, § 6.1(b), at 379-
80 & nn.100-01.
B.
On appeal, defendant claims a search warrant was required
because the motel room was not his residence but the residence of
a third party. However, in his suppression motion brief, at the
suppression hearing, in his reconsideration motion brief, and at
the reconsideration hearing, defendant sought suppression on the
ground that the unrolling of the air mattress was not a valid
search incident to arrest.7 The trial court rejected that
argument, and defendant does not renew it on appeal.
7
Defendant raised only one point in his suppression brief:
THE SEARCH OF THE AIR MATTRESS WAS ILLEGAL AND
ANY EVIDENCE LOCATED THEREIN SHOULD BE
SUPPRESSED.
9 A-3295-14T1
Indeed, on reconsideration, in support of his challenge to
the search of the air mattress, defendant argued "that he had
established room 240 of the Motel 6 to be his residence," that
"the subject hotel room was the defendant's residence on July 8,
2013," and "that this was Mr. Rucker's residence." This argument
was apparently based on defendant's own certification.8 When
defendant pled guilty, he signed a plea form specifically
preserving the "[d]efense that the Hotel room was his residence."
On appeal, defendant contends Room 240 was not his residence.
He argues the officers unlawfully "entered Anne Cunnigan's hotel
room – without a search warrant – to execute the arrest warrant
against [him]." However, defendant never argued to the trial
court that a search warrant was required because Room 240 was not
his residence.
Defendant contends he raised that claim as part of a hearsay
objection. If defendant raised any claim at all in that context,
it was an incorrect assertion that a search warrant was required
to arrest a person in his own residence.
While addressing a hearsay objection by defendant's
suppression counsel, the trial court asked him if he was
In his reconsideration brief, he raised only a reworded version
of that point.
8
Neither party has supplied us with the certification.
10 A-3295-14T1
challenging the entry into the room. He responded he was, because
the police "need a search warrant to arrest somebody they have an
arrest warrant for, in their house." The court correctly
responded: "That's not the law[.]" Suppression counsel then argued
that officers with "an arrest warrant for somebody" had to get a
search warrant to "search somebody's house" and that the same
principle applied when "a person's dwelling place is a hotel room."
The court correctly replied that "to arrest the person, they don't
need it." The court overruled the hearsay objection.
Because defendant did not claim that Room 240 was not his
residence and that a search warrant was therefore required, the
trial court did not address such a claim. The court did not make
any finding on whether "Anna Cunnegan" was actually residing in
the hotel room or whether that name was being used by defendant
or J.S. to register the room in which one or both of them were
staying. Although the court's order denied defendant's motion to
suppress the gun seized in "his room," the court did not make a
factual finding that defendant was residing in Room 240. When
defendant asserted on reconsideration that the room was his
residence, the court stated that "even if this was [his]
'residence[,]' and I put residence in quotes, it still does not
negate the validity of the arrest warrant which gave the police
the authority to enter the room."
11 A-3295-14T1
The trial court also did not make any legal rulings on the
unraised claim. In particular, the court did not determine whether
the officers had "an objectively reasonable basis both for
believing the residence to have been the home of the person named
in the arrest warrant and that he was present in the home at the
time the warrant was executed." Miller, supra, 342 N.J. Super.
at 497.
We decline to consider this newly-raised claim. Our Supreme
Court held in analogous circumstances it was improper to address
on appeal a suppression claim the defendant failed to raise in the
trial court. State v. Robinson, 200 N.J. 1, 22 (2009). Here, as
in Robinson, "[b]ecause that issue never was raised before the
trial court, because its factual antecedents never were subjected
to the rigors of an adversary hearing, and because its legal
propriety never was ruled on by the trial court, the issue was not
properly preserved for appellate review." Id. at 18-19.
Defendant's failure to raise the claim created "factual
shortcoming[s]," id. at 20, such as the absence of findings about
"Anna Cunnegan" and where defendant was residing on July 8, 2013.
Moreover, the failure to raise defendant's
present claim during the motion to suppress
denied the State the opportunity to confront
the claim head-on; it denied the trial court
the opportunity to evaluate the claim in an
informed and deliberate manner; and it denied
any reviewing court the benefit of a robust
12 A-3295-14T1
record within which the claim could be
considered.
[Id. at 21.]
Here, as in Robinson, "defendant never asserts that" his new
claim "creates an issue of trial error 'clearly capable of
producing an unjust result' that must be addressed 'in the
interests of justice.'" Robinson, supra, 200 N.J. at 21 (quoting
R. 2:10-2). In any event, Rule 2:10-2 is "not intended to supplant
the obvious need to create a complete record and to preserve issues
for appeal." Id. at 20. "Given this record, an appellate court
should stay its hand and forego grappling with an untimely raised
issue." Id. at 21. Accordingly, it is "inappropriate to consider,
for the first time on appeal, defendant's belated challenge to the
manner in which the [arrest] warrant was executed." Id. at 22.
Like Robinson, we uphold defendant's convictions. Ibid.9
III.
Defendant next challenges aspects of his sentence for the
certain persons offense, namely the imposition of that sentence
consecutively to the unlawful persons offense, and the quantity
of jail credits awarded against that sentence. "[T]rial judges
9
Because we do not reach the merits of defendant's sole
suppression claim on appeal, we need not address the State's
alternative argument that entry into the motel room was justified
by exigent circumstances.
13 A-3295-14T1
have discretion to decide if sentences should run concurrently or
consecutively," State v. Miller, 205 N.J. 109, 128 (2011), and
their decisions are reviewed for "abuse of discretion," State v.
Spivey, 179 N.J. 229, 245 (2004). Regarding the awarding of jail
credits, our review is "de novo." State v. DiAngelo, 434 N.J.
Super. 443, 451 (App. Div. 2014). Moreover, "[a] sentence imposed
pursuant to a plea agreement is presumed to be reasonable." State
v. Fuentes, 217 N.J. 57, 70-71 (2014).
A.
Defendant argues the trial court failed to consider the
standards for imposing a consecutive sentence set forth in State
v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106
S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In Yarbough, after
acknowledging "there can be no free crimes in a system for which
the punishment shall fit the crime," our Supreme Court ruled the
factors "to be considered by the sentencing court should include"
whether:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at different
times or separate places, rather than
being committed so closely in time and
place as to indicate a single period of
aberrant behavior;
14 A-3295-14T1
(d) any of the crimes involved multiple
victims;
(e) the convictions for which the sentences
are to be imposed are numerous.
[Id. at 643-44.]
The Yarbough Court added: "[T]he reasons for imposing either a
consecutive or concurrent sentence should be separately stated in
the sentencing decision." Id. at 643.
At sentencing, the trial court did not mention Yarbough or
its factors, but simply stated the certain persons "sentence shall
be consecutive to the [unlawful possession] sentence." The court
discussed the aggravating and mitigating factors, but that alone
would not ordinarily satisfy Yarbough. See State v. Eisenman, 153
N.J. 462, 479 (1998). In the judgment of conviction, the court
added "[t]his was a negotiated plea this Court is willing to
accept." However, "the terms of a plea bargain do not control the
inherent sentencing authority of the court" or satisfy the court's
duty to "engage[] in its own analysis of the principles stated in
Yarbough." State v. Friedman, 209 N.J. 102, 123 (2012).
"To be sure, sentences can be upheld where the sentencing
transcript makes it possible to 'readily deduce' the judge's
reasoning," but only "when the record is clear enough to avoid
doubt as to the facts and principles the court considered and how
15 A-3295-14T1
it meant to apply them." Miller, supra, 205 N.J. at 129-30. Thus,
we have affirmed where "[n]o explicit assessment of the Yarbough
factors was made in support of imposition of a consecutive
sentence, but the reasons are self evident." State v. Soto, 385
N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491(2006). In Soto, we affirmed because there "were separate crimes
committed on separate occasions and the plea agreement itself
called for consecutive sentences." Ibid.; see State v. Jang, 359
N.J. Super. 85, 97-98 (App. Div.) (affirming because there "were
individual crimes with two separate victims"), certif. denied, 177
N.J. 492 (2003).
Here, the plea agreement called for consecutive sentences,
but it is not as obvious what Yarbough factor(s) were relied upon
to impose them. The prosecutor argued the State agreed to a plea
agreement for consecutive sentences because unlawful possession
and certain persons offenses "are two distinct offenses," because
of "the legislative intent behind the two different offenses," and
because of "the case law."10 However, there is no indication the
trial court adopted that rationale.
10
A certain persons conviction does "not merge with the weapons
possession conviction," State v. Lopez, 417 N.J. Super. 34, 37 n.2
(App. Div.), certif. denied, 205 N.J. 520 (2011), because they are
"two distinct possessory crimes" and "[t]he Legislature could not
have intended that a convicted felon who possesses or carries an
16 A-3295-14T1
Thus, "the record does not reveal that the trial court
expressly or implicitly considered [Yarbough's] guiding legal
principles governing its discretion" and "does not reflect a direct
or indirect discussion of the basis for imposing consecutive
sentences." Miller, supra, 205 N.J. at 129-30. Moreover, "the
record also supported Yarbough factors that might favor concurrent
sentences." Id. at 129. As in Miller, "[b]ecause we cannot
sufficiently discern the trial court's reasoning, we remand for
resentencing" to determine whether, applying the Yarbough factors,
the certain persons sentence should be concurrent or consecutive.
Id. at 130. "We offer no view on the outcome of that hearing
because the decision to impose consecutive or concurrent sentences
rests in the first instance with the trial court." Ibid.
B.
Defendant next contends he was entitled to additional jail
credits against his certain persons sentence. Rule 3:21-8 provides
"[t]he defendant shall receive credit on the term of a custodial
operable gun . . . be treated the same as a defendant who is not
such a felon," State v. Wright, 155 N.J. Super. 549, 553-55 (App.
Div. 1978) (addressing predecessor statutes). Nonetheless, "there
is no statutory mandate that the court impose a consecutive
sentence for a certain persons conviction," Lopez, supra, 417 N.J.
Super. at 37 n.2, so a certain person sentence "may either be
concurrent with, or consecutive to, that for the [unlawful
possession] conviction," Wright, supra, 155 N.J. Super. at 555.
17 A-3295-14T1
sentence for any time served in custody in jail . . . between
arrest and the imposition of sentence."
On the unlawful possession indictment, the trial court
awarded jail credit of 464 days, representing the period from his
July 8, 2013 arrest to his October 14, 2014 sentencing. On the
certain persons indictment, the court awarded defendant jail
credit of 400 days, representing the period from the September 10,
2013 filing date of the certain persons indictment to his October
14, 2014 sentencing.
Defendant claims that under State v. Hernandez, 208 N.J. 24(2011), he should have received 464 days jail credit on the certain
persons indictment as well as on the unlawful possession
indictment, asserting he "was arrested on both offenses on July
8, 2013." The State disagrees, arguing defendant was not charged
with the certain persons offense until that indictment issued on
September 10, 2013.
Under Hernandez, the timing of the indictment is not
dispositive. There, our Supreme Court addressed the unrelated
cases of two defendants. Id. at 28. The Court's decision
regarding defendant Rose is more pertinent here. Like defendant
here, Rose was the subject of two indictments in the same county,
and he pled guilty and was sentenced on both indictments
simultaneously. Id. at 31-32. He sought jail credits against a
18 A-3295-14T1
consecutive sentence on the drug indictment for time spent in
custody after his first arrest on theft charges, but before the
drug indictment issued. Id. at 32-33, 35. The trial court awarded
jail credits for the period of his theft arrest to the sentencing
solely against the sentence under the theft indictment, not against
the consecutive sentence under the drug indictment that contained
a parole ineligibility period. Id. at 33.
The Supreme Court "granted certification to consider the
proper interpretation and application of Rule 3:21-8, the rule
governing the award of jail credits, to cases involving defendants
sentenced to imprisonment on multiple indictments." Id. at 28.
The Court noted "[i]f multiple charges are embodied in a single
indictment and two or more counts are disposed of, the total amount
of jail credits reduces the aggregate custodial sentence imposed."
Id. at 47-48. The Court rejected the proposition that the credits
should be different "if they are embodied in separate indictments."
Id. at 48. "The issue of credits simply cannot turn on such
happenstance." Ibid.
Thus, under Hernandez, courts must "apply jail credit in a
manner that prevents the real time served from turning on
'happenstance,' such as whether the same charges are included in
one indictment or spread over multiple indictments." State v.
Joe, 228 N.J. 125, 131 (2017). Moreover, "as interpreted by
19 A-3295-14T1
Hernandez, Rule 3:21-8 requires that a defendant receive jail
credit even though the charges are not directly responsible for
his or her incarceration." State v. Rawls, 219 N.J. 185, 194
(2014).
The State tries to analogize to DiAngelo, supra, which
concerned "a custodial term for a violation of probation (VOP)."
434 N.J. Super. at 446. There, "[w]e reject[ed] defendant's
assertion credit against the VOP sentence begins upon her arrest
on new charges." Id. at 461. We held "[t]he more appropriate
date for credit against the VOP sentence is the date the VOP
statement of charges issued." Id. at 462. The State argues the
certain persons indictment should be treated like a VOP statement
of charges. However, nothing in DiAngelo indicates that its ruling
or rationale extends beyond the issues posed by a VOP. See, e.g.,
id. at 458-59 ("We confine our review to a defendant who is in
custody after commission of another criminal offense while on
probation, and against whom a summons for a VOP has been issued
rather than an arrest warrant"). We decline to extend DiAngelo
to alter the treatment of the issue of multiple indictments, which
the Supreme Court addressed in Hernandez.
Nonetheless, we do not grant defendant's request to increase
the jail credits on his certain persons sentence because our
Supreme Court has recently made clear that the appropriate
20 A-3295-14T1
treatment of jail credits depends on whether the sentences are
consecutive or concurrent. State v. C.H., 228 N.J. 111 (2017).
In C.H., the Court "consider[ed] whether a defendant who is
simultaneously sentenced to consecutive sentences on two separate
indictments is entitled to the application of jail credit against
both indictments pursuant to Rule 3:21-8." Id. at 113. The Court
recognized "some language in Hernandez may have caused confusion
about whether jail credits can reduce sentences on each charge of
a consecutive sentence." Id. at 121. The Court ruled "[n]either
the disposition of Hernandez nor the overarching policy
considerations in that opinion warrant the application of [such]
double jail credit." Id. at 113.
To avoid double credit, the Court held in C.H.:
Hernandez is modified as follows: double
credit should not be awarded where a defendant
is sentenced to consecutive sentences under
separate indictments and receives the optimal
benefits of jail credit for time spent in pre-
sentence custody. To the extent that
Hernandez has been read differently with
respect to consecutive sentences we do not
follow that approach.
[Id. at 123.]
The Court instructed: "The appropriate course of action is to view
the separate sentences together and apply jail credit to the front
end of the aggregate sentence. This application maximizes the
21 A-3295-14T1
benefits of jail credit for defendants without awarding double
time." Id. at 121-22.
Accordingly, on remand the trial court should determine the
appropriate allocation of jail credits at the same time it
determines whether the sentences should be consecutive or
concurrent. If the court imposes a consecutive sentence, then all
464 days of jail credits should be allocated against the unlawful
possession sentence.11 If the sentences are concurrent, the 464
days of jail credits should be applied once against the concurrent
sentence for both offenses.
We vacate the portions of the certain persons judgment of
conviction imposing that sentence consecutively and awarding 400
days of jail credit. We remand for a determination whether the
certain persons sentence should be concurrent or consecutive and
subject to the 464 days of jail credits. We do not retain
jurisdiction. We affirm in all other respects.
Affirmed in part, vacated in part, and remanded.
11
That will "maximize the benefits to the defendant by applying
jail credit to the front end of the imprisonment term," namely the
unlawful possession sentence. C.H., supra, 228 N.J. at 123. The
464 days of jail credits would be used up during the three-year
period of parole ineligibility on the unlawful possession
sentence, and any award of jail credits against the consecutive
certain persons sentence would result in improper double credit.
22 A-3295-14T1