State v. Evans

• Decision Date: 27 December 2022
• Docket Number: A-2673-20
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. GERALD J. EVANS, JR., a/k/a GERALD J. EVANS, and GERALD J. EVAN, Appellant-Defendant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
GERALD J. EVANS, JR., a/k/a GERALD J. EVANS, and GERALD J. EVAN, Appellant-Defendant.

No. A-2673-20

Superior Court of New Jersey, Appellate Division

December 27, 2022

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued October 17, 2022

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 1812-1610.

Robert M. Perry argued the cause for appellant (Rosenberg Perry &Associates, LLC, attorneys; Robert M. Perry and Stephen J. Bodnar, on the brief).

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Jennifer B. Paszkiewicz, of counsel and on the brief).

Before Judges Mawla and Smith.

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PER CURIAM

Defendant Gerald J. Evans, Jr. appeals from an order denying his motion to apply jail credits to his sentence. Defendant pled guilty to operating a motor vehicle during a period of license suspension in violation of N.J.S.A. 2C:40-26, a fourth-degree crime. Defendant was sentenced to probation conditioned upon 180 days in county jail, with probation to terminate upon completion of the custodial sentence. Defendant argues his time spent on supervisory probation after a COVID-19 related suspension of his custodial sentence was an additional punishment, and a violation of double jeopardy. Defendant also contends the court should have converted his sentence to time served. We affirm.

I.

A grand jury indicted defendant, charging him with operating a motor vehicle while his driver's license was suspended, N.J.S.A. 2C:40-26(b). Defendant pled guilty, and on January 24, 2020, the trial court sentenced him to one year probation, with probation to terminate upon the completion of the 180-day custodial sentence.

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At sentencing, the court found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), as well as mitigating factor ten, N.J.S.A. 2C:44-1(b)(10). The court then awarded defendant five days of jail credit.

On March 22, 2020, the Supreme Court issued a Consent Order ^[1] in response to a request for relief filed by the Office of the Public Defender stemming from the public health crisis caused by COVID-19. The Consent Order stated that, "any inmate currently serving a county jail sentence (1) as a condition of probation . . . shall be ordered released." Consent Order: In the Matter of the Request to Commute or Suspend County Jail Sentences ¶ 7. In addition, the order created alternative sentencing options for the court to consider at the conclusion of probation:

For inmates serving a county jail sentence as a condition of probation, the custodial portion of the sentence shall either be served at the conclusion of the probationary portion of the sentence or converted into a "time served" condition, at the discretion of the sentencing judge, after input from counsel

[Id. at ¶ 8.]

On March 24, 2020, defendant was released from county jail pursuant to the Supreme Court's order, and his sentence was suspended. He was placed on

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supervisory probation during the suspension period. At the time of the suspension...