Multiple Extended Term Sentences (Part 1)

In State v. Boykins, an Ocean County case decided on September 7, 2016, the Appellate Division was called upon to decide whether a defendant is “in custody” for purposes of receiving a second extended-term sentence under N.J.S.A. 2C:44-5b when he committed a second crime while out on bail awaiting trial for the first crime. The answer was “yes.”

The Court held in relevant part that “N.J.S.A. 2C:44-5a addresses the sentencing of a defendant on multiple offenses in a single sentencing proceeding, and states, with unmistakable clarity, that there shall be imposed ‘not more than one sentence for an extended term’ when sentencing a defendant for more than one offense.” N.J.S.A. 2C:44-5b on the other hand, instructs courts about sentences of imprisonment that are imposed at different times, and specifically addresses the sentencing of a defendant who has previously been sentenced to imprisonment,’ and who must be sentenced ‘for an offense committed prior to the former sentence. Subsection b commands in equally clear language that “‘for an offense committed prior to the former sentence other than an offense committed while in custody,'” that the “prohibition against multiple extended-term sentences applies, as far as it is possible to do so.”

Defendant contends the trial court erred in finding he committed the crimes giving rise to Indictment II “while in custody,” arguing that “a defendant on bail has been released from custody.” He contends it is precisely because a defendant on bail or probation is not in custody that no jail credit is awarded for such time. At oral argument, defendant stressed that considering a person who is obviously at liberty, albeit on probation or on bail, as “in custody” is contrary to the term’s conventional meaning.

Although there is no disputing that defendant would not be entitled to jail credit for the time he spent on probation or on bail prior to his trial on Indictment II, we do not find that dispositive of the question before us as N.J.S.A. 2C:44-5 addresses itself to gap-time credit, not jail credit. Jail credit is governed by court rule, not by statute. Just because the phrase “in custody” appears in both N.J.S.A. 2C:44-5b and in Rule 3:21-8 does not mean it means the same thing in both texts. Indeed, good reason exists to believe the Legislature employed the phrase in a limited context for a specific purpose, regardless of what might be the conventional notion of “custody.”