State v. Lynk

• Decision Date: 23 February 1979
• Citation: 399 A.2d 1055,166 N.J.Super. 400
• Parties: STATE of New Jersey, Plaintiff, v. George C. LYNK, Jr., Defendant. (Criminal)
• Court: New Jersey Superior Court

Page 400

166 N.J.Super. 400

399 A.2d 1055

STATE of New Jersey, Plaintiff, v. George C. LYNK, Jr., Defendant.

Superior Court of New Jersey, Law Division,

(Criminal).

Feb. 23, 1979.

John H. Stamler, Union County Pros., for the State (Thomas A. Harley, Asst. Pros., appearing).

S. David Levy, Deputy Public Defender, for defendant Lynk (Richard S. Lehrich, First Asst. Deputy Public Defender, appearing).

BRODY, J. S. C.

Defendant moves to credit 138 days against custodial sentences I imposed on two breaking and entering convictions. He spent that time in a New York jail resisting extradition to face these charges circumstances he claims entitle him to the credit, citing State v. Beatty, 128 N.J.Super. 488, 320 A.2d 514 (App.Div.1974). The State argues that Beatty did not fully come to grips with the issue and that I should deny the credit for the reasons advanced in State v. Sinacore, 151 N.J.Super. 106, 376 A.2d 580 (Law Div.1977). Sinacore's facts are indistinguishable from those here.

In April 1977 a Union County grand jury returned two indictments, each charging defendant with breaking and entering with intent to steal and with larceny. When he failed to appear at a calendar call in November 1977, I issued a warrant for his arrest. He was thereafter arrested in New York on unrelated charges which were dismissed. Because of my warrant and the extradition proceedings, he was further detained in New York for the period in question from July 14 to November 28, 1978, when he was received in the Union County jail. A week later he pleaded guilty to the breaking and entering charges, for which he received concurrent reformatory sentences. In accordance with a plea agreement, the larceny charges were dismissed.

R. 3:21-8 provides:

The defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence.

Unexpressed in the rule, but the key to its application, is the requirement that the presentence confinement be "directly attributable to the particular offenses" for which sentence is being imposed. State v. Allen, 155 N.J.Super. 582, 584, 383 A.2d 138, 139 (App.Div.1978). Put another way, a defendant may not receive credit for time served attributable to an unrelated offense, even though that confinement occurs between arrest and sentencing for the offense in question. See, E. g., State v. Allen, supra, (no credit for confinement in out-of-county New Jersey jail awaiting disposition of unrelated charges pending there), and State v. Council, 137 N.J.Super. 306, 308, 349 A.2d 71 (App.Div.1975) (no credit for confinement in penitentiary serving federal sentence).

In State v. Beatty, supra, defendant was indicted for robbery in Union County on June 18, 1970 while incarcerated in New York where he was scheduled for release on September 11, 1971. In July 1971 a New Jersey detainer for a parole violation was lodged with New York authorities. Extradition proceedings extended his confinement in New York to February 24, 1972, when he was returned to a New Jersey penal institution. From there he was transported to Union County where he pleaded guilty to the charges in the indictment and received a prison sentence with no credit for the New York confinement. The State argued that "(a) R. 3:21-8 applies only to time spent in custody in New Jersey" and "(b) since the detainer was for violation of parole and not the result of the robbery charges, defendant is not entitled to credit on the sentence for robbery." Stating that the rule should be "liberally construed," the court held that defendant was entitled to credit for the New York custody since he was "detained in a New York institution because of the action taken by New Jersey, and whether that action finds its source in the robbery charge or the violation of parole charge is in our view immaterial." State v. Beatty, supra, 128 N.J.Super. at 491, 320 A.2d 514 at 515.

The Beatty court, unconcerned with attributing the New York...