cdTOCtest

was revoked. State v. Hart, 272 N.J. Super. 182 (App.
Div.), certif. denied 137 N.J. 307 (1994).

Defendant was awarded gap-time credits where he was
sentenced on a VOP for an offense which occurred prior to
the imposition of sentence on another VOP. State v.
Guaman, 271 N.J. Super. 130 (App. Div. 1994).

Gap-time credit under N.J.S.A. 2C:44-5b(2), which
relates to time spent in imprisonment as result of sentence
previously imposed, has no application unless defendant,
while incarcerated, is sentenced for an offense occurring
before the prior sentence.

State v. Garland, 226 N.J. Super. 356 (App. Div.), certif.
denied 114 N.J. 288 (1988).

In State v. Lawlow, 222 N.J. Super. 241 (App. Div.
1988), the Appellate Division held that N.J.S.A. 2C:44-
5b(2) and N.J.S.A. 2C:44-5e require a judge sentencing a
defendant to imprisonment to do the following: (1)
determine whether the defendant had previously been
sentenced to imprisonment for any other offenses; if so,(2)
determine whether the defendant had committed any
offense for which he is being sentenced, prior to imposition
of the previously custodial sentence or sentences; if so, (3)
state whether the term of imprisonment being imposed for
that offense is to run concurrently with or consecutively to
the previous term; and in either case, (4) aggregate the
present term with the previous term; (5) credit defendant
with post-sentence time served under the previous term,
and (6) Credit the defendant with any pre-sentence time
served that is solely attributable to the offense for which he
is being sentenced as required by R. 3:21-8.

The judge imposing the current sentence determines
whether time served under the previous sentence will be
credited against time to be served under the current
sentence. If the sentence is concurrent, time served under
the previous sentence will be credited against the current
term; if the sentence is consecutive, the time served under
the previous term will not be credited. State v. Lawlor, 222
N.J. Super. 241, 245 (App. Div. 1988).

Defendant should receive gap time credit for time
spent in this state awaiting sentence while serving another
state’s sentence. State v. Dela Rosa, 327 N.J. Super. 295
(App. Div.), certif. denied 164 N.J. 191 (2000). A contrary
result was reached in State v. Hugley, 198 N.J.Super. 152
(App. Div. 1985), which held that defendant was not
entitled to gap time credits. See also Breeden v. N.J. Dept. of
Corrections, 132 N.J. 457, 464 (1993) (Generally, credit for
time spent serving sentence in one jurisdiction will not be

given against sentence in another jurisdiction). This issue

is now pending before the New Jersey Supreme Court in

State v. Weinberger (petition granted 2/14/01).

XIX. MODIFICATION OR REDUCTION OF

SENTENCE

A. Release Because of Illness or Infirmity

Defendant’s motion for reconsideration of sentence

under R. 3:21-10b, which was based upon her alleged

inability to physically endure a prison sentence because of

her medical condition and age, was properly denied since

defendant’s medical needs could be adequately monitored

and addressed in the correctional setting. State v. Frank,

281 N.J. Super. 299 (App. Div.), certif. denied 142 N.J. 457

(1995).

R. 3:21-10b only permits the release of defendant

from custody and not reduction of sentence. State v.

Priester, 99 N.J. 123, 141 (1985); State v. Wright, 221 N.J.

Super. 123, 127 (App. Div. 1987).

Under appropriate circumstances a custodial sentence

may be amended to permit the release of a defendant

because of mental infirmity. State v. Verducci, 199 N.J.

Super. 329, 334 (App. Div.), certif. denied 101 N.J. 256

(1985).

An essential predicate to the review of a custodial

sentence pursuant to R. 3:21-10(b)(2) [release for illness] is

that a change of circumstances amounting to a severe

depreciation of the inmate’s health must have occurred

since sentencing. State v. Priester, 99 N.J. at 136; State v.

Wright, 221 N.J. Super. 123, 127-128. Changed

circumstances must also exist for relief under R. 3:21-

10(b)(1) (release to drug or alcohol program). State v. Kent,

212 N.J. Super. 635 (App. Div. 1986).

1. Aids

Fact that inmate has AIDS does not in and of itself

justify reduction of sentence or release from prison.

Prisoner must still satisfy Priester standard for modification

of sentence pursuant to R. 3:21-10. State v. Wright, 221

N.J. Super. 123 (App. Div. 1987); State v. E.R., 273 N.J.

Super. 262, 274 (App. Div. 1994).

Court found that uncontradicted prognosis of

immediate death within six months due to AIDS justified

resentencing defendant, convicted of second degree

offense, to probation with condition that he not leave

home without permission of Court except to receive