the subsequent sentence. N.J.S.A. 2C:45-1e. See also
State In The Interest of S.T., 273 N.J.Super. 436, 445
(App. Div. 1994); State v. Carlough, 183 N.J. Super. 234
(App. Div. 1982).
In State v. Rosado, 256 N.J. Super. 126 (App. Div.
1992), aff’d 131 N.J. 423 (1993), the Supreme Court
affirmed the Appellate Division which held that
defendant is entitled to credit for time he or she was on
parole following the county jail portion of probationary
sentence. A defendant is entitled only to the actual
amount of time he spent in jail and on parole.
In State in the Interest of S.T., 273 N.J.Super. 436
(App. Div. 1994), on appeal from a custodial disposition
for violation of probation, the Appellate Division held
that the juvenile was not entitled to credit for time spent
in residential program for treatment of sex offenders.
State v. Williams, 81 N.J. 498 (1980), held that
under the particular facts of that case the defendant
should be given credit for the time period he was on
probation. In that case, the custodial sentence of a
convicted murderer was erroneously modified by the trial
court pursuant to R. 3:21-10(b) to a five year
probationary term, conditioned upon successful
completion of an in-patient drug rehabilitation program.
Id. at 499. The Supreme Court found that since the error
of placing defendant on probation was that of the trial
court and the State did not seek a stay of the trial court’s
order pending its appeal, the equities of this particular
case mandated that defendant received credit for the time
on probation. Id. at 500.
VI. SEARCH AND ARREST OF PROBATION-
ERS
In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct.
3164, 97 L.Ed.2d 709 (1987), the Supreme Court held
that the search of the probationer’s home satisfied the
demands of the Fourth Amendment because it was
carried out pursuant to a valid probation regulation that
itself satisfied the Fourth Amendment reasonableness
requirements.
A probation officer has power to arrest a probationer
when there is probable cause to believe that a probation
violation has occurred. Illegality of probationer’s arrest
would not affect the validity of VOP proceedings. State
v. Hyman, 236 N.J.Super. 298 (App. Div. 1989).
PROSECUTORSPROSECUTORSPROSECUTORSPROSECUTORSPROSECUTORS
I. GENERALLY
“The primary duty of a prosecutor is not to obtain
convictions but to see that justice is done.” State v.
Ramseur, 106 N.J. 123, 320 (1987). See State v. Frost,
158 N.J. 76, 83 (1999); State v. Feaster, 156 N.J. 1, 59
(1998); State v. Farrell, 61 N.J. 99, 104 (1972); State v.
Marquez, 277 N.J. Super. 162, 171 (App. Div. 1994). “It
is as much his [or her] duty to refrain from improper
methods calculated to produce a wrongful convictions as
it is to use every legitimate means to bring about a just
one.” State v. Farrell, 61 N.J. at 105 (quoting Berger v.
United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79
L.Ed. 1314, 1321 (1935)). See State v. Timmendequas,
161 N.J. 515, 587 (1999); State v. Frost, 158 N.J. at 83;
State v. Ramseur, 106 N.J. at 320; State v. Torres, 328 N.J.
Super. 77, 94 (App. Div. 2000). This duty does not
preclude a prosecutor from making a vigorous and
forceful presentation of the State’s case. State v. Feaster,
156 N.J. at 58-59; State v. Harvey, 151 N.J. 117, 216
(1997); State v. Ramseur, 106 N.J. at 320.Prosecutorial misconduct is not grounds for reversal
of a criminal conviction unless the conduct was so
egregious to deprive defendant of a fair trial. State v.
Timmendequas, 161 N.J. at 575; State v. Frost, 158 N.J.
at 83.The “fair trial” test applies to alleged prosecutorial
conduct in both the guilt and penalty phases of a capital
trial. State v. Timmendequas, 161 N.J. at 575; State v.
Pennington, 199 N.J. 547, 565 (1990); State v. Koedatich,
112 N.J. 225 (1988), cert. denied, 488 U.S. 1017, 109
S. Ct. 813, 102 L.Ed.2d 803 (1989); State v. Zola, 112
N.J. 384 (1988).In determining whether a prosecutor’s misconduct
was so egregious as to deprive defendant of a fair trial, an
appellate court must take into account the tenor of the
trial and the degree of responsiveness of both counsel and
the court to improprieties when they occurred. State v.
Marshall, 123 N.J. 1, 153 (1991); State v. Scherzer, 301
N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J.
466 (1997).II. DISCRETION
The decision whether to prosecute and what charges
to file or bring before the grand jury generally rests in the
prosecutor’s discretion, so long as the prosecutor has
probable cause to believe the accused committed an