Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Wednesday, April 19, 2017

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM A-0932-16T2


STATE OF NEW JERSEY VS. DONNELL W. ANCRUM
          A-0932-16T2
The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation 

Tuesday, April 18, 2017

Probate and duty of executor



Duties/ Executor to Do

-Notice of Probate to Beneficiaries (Attorney will handle)
If charity, notice to Atty General

File notice of Probate with Surrogate (Attorney will handle)

Apply to Federal Tax ID if there will be several beneficiaries

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills  
List real estate for sale and have attorney prepare, Deed, Affidavit of title and other document

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle)

File waivers within 8 months upon receipt (Attorney will handle)

Prepare Informal Accounting 

Prepare Release and Refunding Bond (Attorney will handle)




Obtain Child Support Judgment clearance (Attorney will handle)

Let's review the major duties involved, which we've set out below.

In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

39:4-97 Careless driving


39:4-97 Careless driving
    39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200 plus court costs
NJ MVC Points 39:4-97 Careless driving 2
and 2 Car insurance points
Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

Careless driving Careless driving 39:4-97 requires the State to provide the vehicle was operated by the defendant carelessly or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property
  KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

DWS- Driving While Suspended




NJSA 39:3-40 Driving While Suspended in New Jersey DEFENSES Call Kenneth Vercammen for representation 732-572-0500
More info at www.njlaws.com/driving_on_a_suspended_license.htm Thousands of motorists in New Jersey are stopped for routine traffic violations, then are surprised to be informed their license is suspended. Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling Driving While Suspended (DWS) matters. Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses. Although this may seem like a hopeless situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a prolonged license suspension and even the possible incarceration of the client. The violation of DWS is set forth at NJSA 39:3-40. This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition." The statute also prohibits the operation of a motor vehicle whose registration has been revoked.
PENALTIES Conviction under this statute brings the following penalties: Upon conviction of the first offense of a fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the MVC (formerly DMV); Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for 1 - 5 days; Upon conviction for the third offense, a fine of $1000.00 and imprisonment in the county jail for 10 days. Additionally, the statute states, that upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months. If DWS and involved in an accident resulting in personal injury to another person, the court shall impose a period of imprisonment for not less than 45 days.
If an individual violates this section while under suspension under 39:4-50 (DWI), they shall be fined $500.00 extra and have their license suspended for an additional period not less than one year nor more than two years and mandatory county jail for 10 - 90 days. If suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Sunday, April 09, 2017

STATE OF NEW JERSEY VS. EDWARD HOLLAND A-0315-15T4


 STATE OF NEW JERSEY VS. EDWARD HOLLAND 
A-0315-15T4 
The court examines defendant's challenge to denial of post-conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed. 

Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 

State v. Shaquille A. Nance; State v. Taja L. Willis Bolton; State v. Alvin D. Williams (A-47/48


 State v. Shaquille A. Nance; State v. Taja L. Willis 
Bolton; State v. Alvin D. Williams 
(A-47/48/49-15; 076626) 

Section 6.2 was misapplied in defendants’ sentencing proceedings and therefore defendants should be resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee) must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2. 

State v. Kassey Benjamin (A-43-15;


 State v. Kassey Benjamin (A-43-15; 076612) 

Defendants are not entitled to discovery of the prosecution’s files for cases in which Graves Act waivers have been granted to other defendants. 

Tuesday, April 04, 2017

Expungement NJ



New Expungement Law permits petitions for Expungement of arrests in shorter time periods.
      This is an excellent law to help non-violent offenders. Don’t be denied a job, credit or barred from coaching based on an old criminal charge.
This new law establishes new expungement procedures for records and information pertaining to crimes and offenses, including procedures for persons who are, or previously have been, successfully discharged from the State’s special probation drug court program.  It also provides shorter waiting periods before certain records and information become expungeable.
You can now get expungements for both the crime and the disorderly persons convictions.
The new law took effect April 18, 2016.
The time period for expunging a Municipal Court criminal charge may be reduced to 3 years if you can show exception circumstances. Otherwise it stays 5 years.
      Regarding a person with a criminal conviction, that person would be permitted to make an application with an expungement petition to the Superior Court in the county in which the criminal conviction was adjudged.  The application could include additional, separate petitions seeking to expunge no more than two other convictions for disorderly persons or petty disorderly persons offenses.  The application could only be filed after the expiration of five years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, for the crime or for any disorderly persons or petty disorderly persons offense, whichever is later (the waiting period under current law for a criminal conviction expungement is ordinarily 10 years).  Alternatively, the court could grant an expungement on the application if less than five years has expired from the payment of any fine but the five-year waiting period is otherwise satisfied, and the court finds that the person substantially complied with any payment plan for that fine or could not do so due to compelling circumstances.KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Sunday, April 02, 2017

STATE OF NEW JERSEY VS. MARCUS PERKINS A-4065-14T3

 STATE OF NEW JERSEY VS. MARCUS PERKINS 
A-4065-14T3 

The Post-Conviction Relief (PCR) Judge determined that defendant's requested appeal was not filed, but declined to accord relief. Following State v. Jones, 446 N.J. Super. 28, 34-35 (App. Div.), certif. denied, ___ N.J. ___ (2016), the court reversed, holding that a PCR judge has the authority to provide a forty-five-day period to file an appeal where ineffective assistance of counsel caused the failure to file a requested appeal. 

STATE OF NEW JERSEY VS. JAMES DENMAN A-5329-14T1

STATE OF NEW JERSEY VS. JAMES DENMAN 
A-5329-14T1 
In this case, we conclude the prosecutor and trial judge erroneously applied the presumption of PTI ineligibility to defendant's pending charge of third-degree attempted misapplication of funds from the Scotch Plains Police Athletic League (PAL), N.J.S.A. 2C:21-15 and 2C:5-1. Defendant, a Scotch Plains police officer, also served as the PAL treasurer. Faced with a financial crisis, he improperly borrowed $18,000 from PAL, but repaid the loan with interest four months later. The following month, the prosecutor learned of the loan and charged defendant. The prosecutor rejected defendant's PTI application, concluding defendant's unauthorized use of PAL's funds constituted a "breach of the public trust," contrary to PTI Guideline 3(i), because "defendant, a police officer, was Treasurer" of PAL, "an organization with a goal of uniting the local police and the local community through youth sports programs." Defendant appealed his PTI denial to the Law 

Division, which also concluded defendant committed a breach of the public trust. We reverse, concluding the record does not show a breach of public trust, and remand for the prosecutor to consider defendant's PTI application ab initio. 

Sunday, March 26, 2017

STATE OF NEW JERSEY VS. MELVIN HESTER/MARK WARNER/ ANTHONY MCKINNEY, AND LINWOOD ROUNDTREE A-0068-16T1

STATE OF NEW JERSEY VS. MELVIN HESTER/MARK WARNER/ ANTHONY MCKINNEY, AND LINWOOD ROUNDTREE 
A-0068-16T1/ A-0069-16T1/ A-0070-16T1 AND A-0071-16T1 
(CONSOLIDATED) 
These four cases involve application of the Ex Post Facto Clauses of the Constitution. The State appealed from orders dismissing indictments charging defendants with third-degree violations of their special sentences of community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d). Before the alleged CSL violations, the Legislature amended N.J.S.A. 2C:43-6.4. As applied, the amended law retroactively increased defendants' punishment for committing their predicate crimes by raising the degree of the CSL violation from a fourth degree to a third degree, mandating the imposition of Parole Supervision for Life, and subjecting them to extended prison terms. 

In affirming the orders, we held that the commission of the predicate crime, for which defendants received the special sentence of CSL, rather than the alleged CSL violation, is the operative "crime" for determining whether the 2014 amended law violated the Ex Post Facto Clauses. 

STATE OF NEW JERSEY VS. TARIQ S. GATHERS A-4772-15T2

STATE OF NEW JERSEY VS. TARIQ S. GATHERS 
A-4772-15T2 

The State sought and the trial court granted a motion to require defendant, who had been arrested months earlier on weapons charges and was awaiting trial in the county jail, to provide a buccal swab. The State sought to conduct this search and seizure to compare defendant's DNA with DNA that might be recovered from a weapon found near the crime scene, even though defendant had provided DNA as a result of a previous conviction. Because of the timing of the request and, among other things, the fact that the State hadn't first determined the presence of useful DNA on the weapon, the court found the search unreasonable and reversed. 

STATE OF NEW JERSEY VS. C.W. A-2415-16T7

STATE OF NEW JERSEY VS. C.W. 
A-2415-16T7 
In this appeal by the State from a denial of its motion for defendant's pretrial detention, this court addresses several legal issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26. 
First, the scope of appellate review of a detention decision generally should focus on whether the trial court abused its discretion, but de novo review applies with respect to alleged errors or misapplications of law within that court's analysis. 
Second, a defendant's prior history of juvenile delinquency and probation violations is a permissible – and at times especially significant – consideration in the detention analysis. 
Third, in appropriate cases, a detention analysis should afford considerable weight to the tier classification of a defendant who has previously committed a sexual offense subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose dangerousness and risk of re-offending have been evaluated on a Registrant Risk Assessment Scale. 
Fourth, a Pretrial Services recommendation to detain a defendant does not create, under Rule 3:4A(b)(5), a rebuttable presumption against release that a defendant must overcome. However, as the Rule states, such a recommendation to detain may be, but is not required to be, relied upon by the court as "prima facie evidence" to support detention. 
The panel also discusses the Impact of the Judiciary's March 2, 2017 clarification of the two-part recommendation formerly used by Pretrial Services for the highest-risk category of defendants. 

The case is remanded to the trial court for reconsideration in light of this guidance, and also to develop the record further on important and unresolved factual questions. 

J.I. v. New Jersey State Parole Board (A-29-15


 J.I. v. New Jersey State Parole Board 
(A-29-15; 076442) 

Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or fostering an offender’s reintegration into society are inconsistent with the administrative regime governing CSL offenders. The complete denial of access to the Internet implicates a liberty interest, which triggers due process concerns. After the imposition of the total ban for J.I.’s Internet violations, he should have been granted a hearing. The matter is remanded to the full Parole Board for a hearing in which it must determine whether the total computer and Internet ban serves any public-safety, rehabilitative, or other penological goal. 

State v. Carl J. Garrison (A-38-15


 State v. Carl J. Garrison (A-38-15; 076537) 
The evidence of the strip poker game meets the rigorous test set forth in State v. Cofield, 127 N.J. 328 (1992), and therefore was admissible under Rule 404(b). The evidence was properly admitted at trial with an appropriate limiting instruction. 


Monday, March 20, 2017

Gap time credit sometimes available if jail for traffic violation STATE v. WALTERS

Gap time credit sometimes available if jail for traffic violation STATE  v.   WALTERS

Defendant-Appellant.
___________________________________

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
  
APPROVED FOR PUBLICATION


June 17, 2016


APPELLATE DIVISION

Submitted January 19, 2016 – Decided
Before Judges Messano, Simonelli and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 14-01-0074.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

The issue before us is whether a defendant is entitled to receive gap-time credits for a sentence of imprisonment imposed following a Title 39 motor vehicle violation. Defendant Matthew J. Walters appeals from the Law Division order that removed gap-time credit from a previously entered judgment of conviction (JOC), the judge concluding that gap-time credit cannot be awarded for a sentence imposed on a Title 39 violation. Having considered the parties' arguments and applicable law, we reverse.
We discern the following facts from the record. On November 16, 2013, while driving in Somers Point, defendant was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50.
Thereafter, on November 24, 2013, defendant was a passenger in a vehicle when he got into a physical altercation with the driver, causing the vehicle, with two children in the back seat, to crash into the concrete center barrier. Defendant was arrested that day and remained incarcerated throughout the subsequent proceedings. As a result of the incident, defendant was charged on January 21, 2014, under Cape May County Indictment No. 14-01-0074, with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). He was also charged with violating his non-custodial probationary sentence for a 2013 conviction for fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(1).
On February 18, 2014, and before resolution of Indictment No. 14-01-0074, defendant pled guilty to DWI in Somers Point Municipal Court. He was sentenced that day and began serving 180 days in the county jail, where he was already incarcerated since his November 24 arrest.
On April 3, 2014, defendant pled guilty to an amended charge of third-degree aggravated assault on Indictment No. 14-01-0074 and violation of probation for the 2013 shoplifting conviction; count two of the indictment was dismissed pursuant to the plea agreement. On May 23, 2014, he was sentenced in accordance with the plea agreement to a three-year term of imprisonment, to run concurrently with a 365-day sentence for violation of probation. Defendant received jail credit of eighty-six days and gap-time credit of ninety-four days, based upon his custodial DWI sentence which had already been served. On the probation violation, he received jail credit of ninety-two days and no gap-time credit was awarded.
At sentencing, the State voiced no objection to the jail credits, and agreed that defendant was only entitled to gap-time credit on the sentence imposed for the aggravated assault. However, on May 27, 2014, the State moved for reconsideration of the JOC awarding gap-time credit, arguing that defendant had failed to notify the State of his intention to argue for gap-time credit at sentencing, and further, that gap-time credit should not be awarded based on the sentence imposed for a Title 39 motor vehicle violation.
On August 12, 2014, after considering argument, the court issued an oral decision revoking defendant's gap-time credit. The court held that under State v. French, 313 N.J. Super. 457, 466 (Law Div. 1997), defendant was not entitled to gap-time credit because the prior custodial sentence for DWI was imposed for a motor vehicle violation in municipal court, and defendant served his sentence in the county jail, rather than state prison. This appeal followed.1
On appeal, defendant argues the following point:
POINT I

THE SENTENCING COURT ERRED WHEN IT REMOVED THE GAP-TIME CREDITS FOR THE TIME SERVED ON THE DWI CONVICTION THAT IT HAD ORIGINALLY AWARDED DEFENDANT.

Defendant contends that he satisfies the requirements of N.J.S.A. 2C:44-5(b)(2) and should receive gap-time credit even though the sentence was for a motor vehicle violation. Thus, he maintains that the trial court erred in finding that a person can only receive gap-time credit for a custodial sentence imposed for a violation of the New Jersey Code of Criminal Justice (Criminal Code), N.J.S.A. 2C:1-1 to -104-9. We agree.
The award of jail credits raises issues of law that we review de novo. State v. Hernandez, 208 N.J. 24, 48-49 (2011) ("[T]here is no room for discretion in either granting or denying [jail] credits."). The gap-time provision in our Criminal Code deals with sentences of imprisonment imposed at different times. N.J.S.A. 2C:44-5(b)(2) provides, in relevant part:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

. . . .

(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served. . . .

[N.J.S.A. 2C:44-5(b)(2).]

"Gap-time credit" is so called because N.J.S.A. 2C:44-5(b) "awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Hernandez, supra, 208 N.J. at 38. A defendant is entitled to gap-time credit when: "'(1) the defendant has been sentenced previously to a term of imprisonment; (2) the defendant is sentenced subsequently to another term; and (3) both offenses occurred prior to the imposition of the first sentence.'" Ibid. (alteration in the original) (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts are established, "the sentencing court is obligated to award gap-time credits[.]" Ibid.
The trial judge granted the State's motion for reconsideration of the award of gap-time credit accepting that credit should not be given for a sentence imposed under Title 39. She found that gap-time credit is earned only for a term of imprisonment imposed as part of a sentence for conviction of an "offense" under the Criminal Code. We disagree.
The principles governing statutory interpretation are well-settled. Our goal is to determine and effectuate the Legislature's intent. See, e.g., In re Kollman, 210 N.J. 557, 568 (2012). We begin with the statutory language. Ibid. "We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). "When that language 'clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms.'" State v. Olivero, 221 N.J. 632, 639 (2015) (quoting McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001)). In addition, we strictly construe a penal statute. Ibid. Here, nothing in the language or statutory scheme of N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant must be convicted for a Criminal Code offense to receive gap-time credits.
We find guidance in Franklin, where our Supreme Court held that a juvenile incarcerated pursuant to the Juvenile Code, N.J.S.A. 2A:4A-20 to -48, is entitled to gap-time credits pursuant to N.J.S.A. 2C:44-5(b). Franklin, supra, 175 N.J. at 469. In analyzing the Juvenile Code, the Court reasoned that juveniles are entitled to the same rights as adults and a juvenile's "incarceration" under the Juvenile Code is no different than an adult's "imprisonment" under the Criminal Code. Id. at 464-68. Thus, despite the absence of gap-time credit and the lack of any reference to N.J.S.A. 2C:44-5(b) in the Juvenile Code, a juvenile sentenced to a custodial sentence under the Juvenile Code is eligible for gap-time credit because the statute requires only that a defendant be imprisoned. Id. at 464, 469.
Here, defendant was convicted of a Title 39 violation. Like the Juvenile Code, Title 39 is silent as to gap-time credits, and N.J.S.A. 2C:44-5(b), in turn, makes no reference to Title 39 violations. The gap-time statute only requires that a defendant be "previously . . . sentenced to imprisonment," prior to the imposition of a subsequent sentence of imprisonment for an offense under the Criminal Code. N.J.S.A. 2C:44-5(b). As was the juvenile in Franklin, defendant is eligible for gap-time credit.
In reaching this conclusion, we reject the trial court's finding, and the State's argument here, that French requires gap-time credits be denied to defendant. We must first note that the decision is a Law Division case, and we are not bound by its holding. S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001). Nevertheless, French held that incarceration in a state prison, regardless of the court imposing the sentence, satisfies the definition of "imprisonment" for purposes of gap-time credits under N.J.S.A. 2C:44-5(b). French, supra, 313 N.J. Super. at 467. It did not address the situation here, where defendant was serving a custodial term in a county jail imposed by a municipal court for a Title 39 violation. Thus, French was misapplied by the trial court.
We also disagree with the State's argument that gap-time credit is not earned because DWI is not an "offense" as defined by the Criminal Code. See State v. Hammond, 118 N.J. 306, 307 (1990). Hammond limits application of principles of liability under the Criminal Code to Title 39 offenses. Id. at 312-13. However, by its very terms, N.J.S.A. 2C:44-5(b)(2) does not require that the "previous[] . . . sentence[] to imprisonment" be a sentence based upon the conviction of an offense under the Criminal Code. Only the "subsequent[] sentence[] to another term" must be "for an offense." N.J.S.A. 2C:44-5(b). Since defendant meets the three-prong requirements of N.J.S.A. 2C:44-5(b)(2), he is entitled to receive gap-time credits. Franklin, supra, 175 N.J. at 462.
Lastly, we recognize that the overall purpose of the statute is "to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time." State v. L.H., 206 N.J. 528, 529 (2011). However, the absence of intentional prosecutorial delay by the State is not dispositive of the defendant's entitlement to gap-time credits. Hernandez, supra, 208 N.J. at 38 (citing Franklin, supra, 175 N.J. at 463-64). As a matter of practice, courts do not engage in fact-finding proceedings  [1140] in every case to determine whether or not prosecutorial manipulation has occurred. See, e.g., State v. Ruiz, 355 N.J. Super. 237, 245 (Law Div. 2002). As noted, defendant is entitled to gap-time credit because he  [15] because he satisfied the three prongs of N.J.S.A. 2C:44-5(b)(2).
Reversed. The matter is remanded to the Law Division for amendment of the judgment of conviction to reflect the proper award of gap-time credits.






1_ We removed the appeal from our Excessive Sentence Oral Argument (ESOA) calendar, gave the parties the opportunity to file briefs, and listed the appeal on our plenary calendar.