cdTOCtest

(coco) #1

was revoked.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
Free download pdf