RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5119-13T1
APPROVED FOR PUBLICATION STATE OF NEW JERSEY IN THE INTEREST OF September 19, 2016 JUVENILE, I.C. APPELLATE DIVISION _____________________
Submitted September 12, 2016 – Decided September 19, 2016
Before Judges Sabatino, Haas and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1168-14 and FJ-13- 1228-14.
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for appellant/cross- respondent State of New Jersey (Paul H. Heinzel, Assistant Prosecutor, and Joshua D. Detzky, Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant I.C. (Jennifer L. Gottschalk, Designated Counsel, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this appeal and cross-appeal, we address the issue of
whether a juvenile was entitled to credit on his suspended
sentence for the time he spent in a residential community home
program as part of his probationary sentence to the Juvenile Intensive Supervision Program ("JISP").1 We also consider
whether the juvenile should have been granted credit on his
sentence for the period during which he participated in the JISP
following his completion of the community home program.
Based upon our review of the record and applicable law, we
hold that the juvenile was not entitled to credits for either of
these periods. Therefore, we affirm the trial judge's decision
denying the juvenile's request for credits for his time in the
community home program, and reverse the judge's decision
1 As our Supreme Court observed in State in the Interest of K.O., 217 N.J. 83, 88 n.3 (2014),
JISP is a statewide dispositional alternative to juvenile detention that exposes offenders to intensive rehabilitation techniques regarded as "more stringent than juvenile probation, but less rigid than detention or commitment." The Juvenile Intensive Supervision Program, (JISP), New Jersey Courts, http://www.judiciary.state.nj.us/probsup/jis p_intro.html (last visited [Sept. 12, 2016]). "JISP works cooperatively with the Family Court and community agencies to provide support services to assist participants and their families. These vital relationships help to connect participants with necessary education and health services that will enhance their potential for success." Ibid. The program includes the monitoring of required school or work attendance, community service, curfew requirements, substance abuse or mental health treatment, and victim restitution. Ibid.
2 A-5119-13T1 granting the juvenile credits for the period he participated in
the JISP.
I.
The police arrested sixteen-year-old I.C. on December 25,
2012 for allegedly stabbing a victim in the arm with a steak
knife. On that same date, the police charged I.C. with four
acts of delinquency that, if committed by an adult, would have
constituted second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (charge one); fourth-degree criminal trespass, N.J.S.A.
2C:18-3(a) (charge two); third-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d) (charge three); and
fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(d) (charge four). Following his arrest, I.C. was detained in
custody at the Youth Detention Center.
At the time of his arrest, I.C. was on probation as a
result of a prior adjudication of delinquency. On January 15,
2013, the Monmouth County Probation Division charged I.C. with a
violation of that probation because he had incurred new charges.
Pursuant to a negotiated plea agreement, I.C. pled guilty
on March 11, 2013 to second-degree aggravated assault (charge
one) and to a violation of probation. As part of his plea
agreement, the State agreed to dismiss the remaining charges in
the December 25, 2012 complaint. The State advised I.C. that it
3 A-5119-13T1 would recommend that he be detained for a period of two years at
the Jamesburg Training School for Boys ("Jamesburg"). However,
the plea agreement provided that I.C. could seek a non-custodial
sentence, specifically, a probationary term under the JISP.
On April 15, 2013, the trial judge sentenced I.C. to two
concurrent, two-year sentences in the custody of the Juvenile
Justice Commission on the aggravated assault (charge one) and
violation of probation charges. However, the judge suspended
these custodial sentences and ordered I.C. to serve two
concurrent, eighteen-month terms in the JISP. As a condition of
this probationary term, the judge ordered I.C. to first attend
and complete the Southern Residential Community Home program.2
The judge further ordered that upon I.C.'s completion of this
2 "[P]robationers" assigned to the all-male Southern Residential Community Home ("Southern" or "community home program") spend approximately five months in the program. N.J. Dep't of Law & Pub. Safety, Juvenile Justice Commission, Community Programs, Residential Community Homes, http: //www.nj.gov/oag/ jjc/residential_comm_southern_hm.html (last visited September 12, 2016). Upon entering the program, the juvenile is assessed and an Individualized Case Action Plan is developed. Ibid. Depending upon the juvenile's specific needs, the juvenile may participate in educational programs to enable him to earn a GED. Ibid. In addition, the juvenile may "further [his] education through [an] Employment and Support Work Program." Ibid. Probationers are permitted to go on "supervised shopping trips" and to other recreational facilities off campus when accompanied by staff. Ibid. The program is intended "to provide a continuum of services designed to meet the aftercare needs of each individual resident" and its "goal . . . is to reduce recidivism." Ibid.
4 A-5119-13T1 program, I.C. was to serve the rest of his probationary term at
home in the JISP.
At the time of sentencing on April 15, 2013, a placement
was not yet available for I.C. in the community home program.
Therefore, the judge retained I.C. in the detention center until
April 18, 2013, when he began his program at Southern. Between
the date of his arrest on December 25, 2012 and his placement in
the community home program on April 18, 2013, I.C. spent 115
days in the juvenile detention center.
On October 8, 2013, I.C. finished the program at Southern
and returned home to complete the remainder of his eighteen-
month probationary sentence in the JISP with electronic
monitoring.3 As part of his probation, I.C. had to abide by a
curfew, abstain from illegal drug use and consumption of
alcohol, and attend an internship program for possible future
employment. I.C. also agreed to "submit at any time to a search
of [his] person, or places and things under [his] immediate
control." I.C. lived with his family during his probationary
period.
On December 20, 2013, less than three months after
returning home, I.C. went into the local high school without
3 Thus, I.C. participated in the community home program for 173 days.
5 A-5119-13T1 permission while carrying a knife. On March 20, 2014, the
police arrested I.C. for this conduct and charged him with
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (charge
one); third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (charge two); fourth-degree
possession of a weapon on school grounds, N.J.S.A. 2C:39-5(e)(2)
(charge three); and fourth-degree criminal trespass, N.J.S.A.
2C:18-3(a) (charge four). Because I.C. was on probation at the
time of his arrest, I.C.'s JISP officer also charged him with a
violation of that probation.
On May 6, 2014, I.C. entered into a plea agreement and pled
guilty to an amended charge of fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d) (charge three) and to the
violation of probation. In return for his plea, the State
agreed to dismiss the remaining charges and to recommend that
the judge impose the previously suspended two concurrent, two-
year sentences at Jamesburg. Once again, defendant retained the
right to seek a non-custodial sentence.
On June 6, 2014, the trial judge4 entered a final
adjudication of delinquency and directed that I.C. now serve his
previously suspended two-year custodial sentence at Jamesburg on
4 The same trial judge presided at each proceeding involved in this appeal.
6 A-5119-13T1 the violation of probation. The judge also sentenced I.C. to a
concurrent one-year term at Jamesburg on the weapons charge.5
The judge then turned to the issue of the appropriate
credits due to I.C. against his two-year aggregate custodial
sentence. The judge determined that I.C. was entitled to a
credit of 115 days for the period he was in custody in a
detention center between December 25, 2012, the date of his
arrest on the charges that led to the imposition of the initial
two-year suspended sentence, and the date he was placed in the
community home program as part of his eighteen-month
probationary term in the JISP. The judge also found that I.C.
should receive an additional credit of seventy-nine days for the
period he spent in detention before his sentencing on the
current charges. These particular credits, which total 194
days, are not in dispute in this appeal.
The judge denied I.C.'s request for an additional 173 days
of credit against his custodial sentence for the time he spent
at Southern. In so ruling, the judge relied upon our decision
in State in the Interest of S.T., 273 N.J. Super. 436, 447 (App.
Div.), certif. denied, 138 N.J. 263 (1994), where we held that a
juvenile was not entitled to credit for time spent in a
5 At the time of sentencing, I.C. had been in custody in the detention center for seventy-nine days since the date of his arrest on March 20, 2014.
7 A-5119-13T1 rehabilitative sex offender program as part of "a probationary
disposition." See also State in the Interest of C.V., 201 N.J.
281, 294 (2010) (holding that a juvenile was not entitled to
credit for time spent in residential treatment programs as a
condition of probation).
However, the judge granted I.C.'s separate request for
credit for the 163 days he was at home under the JISP with
electronic monitoring. The judge reasoned that the conditions
of I.C.'s participation in the JISP "parallel[ed] the
restrictions of incarceration." Specifically, the judge stated
that after he returned home from Southern, "I.C. was in an
environment where . . . he had to wear the electronic bracelet,
he had certain curfews, he had certain reporting . . .
requirements." Because these requirements were stricter than
those imposed under less intensive forms of probation, the judge
determined that I.C. should receive 163 days of credit against
his two-year custodial aggregate sentence for the time he
participated in the JISP.6
6 Thus, the judge granted I.C. a total of 357 days credit against his aggregate two-year sentence to Jamesburg. On August 22, 2014, the judge denied I.C.'s request for additional credits and that decision is not a subject of the current appeal.
8 A-5119-13T1 Both I.C. and the State filed appeals contesting different
aspects of the judge's decision.7
II.
On appeal, I.C. argues that the trial judge "erred when
[he] denied custodial credit for the time [I.C.] spent at the
State-run residential facility because it was a condition of his
JISP participation." In its appeal, the State contends that the
judge incorrectly awarded I.C. credit for the time he spent at
As the Supreme Court observed with regard to adult
sentences in State v. Hernandez, 208 N.J. 24, 48-49 (2011),
"there is no room for discretion in either granting or denying
credits." Thus, a challenge to an award or denial of credits
constitutes an appeal of a sentence "not imposed in accordance
with law." State v. Rippy, 431 N.J. Super. 338, 347 (App. Div.
2013) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)),
certif. denied, 217 N.J. 284 (2014). Therefore, our review is
de novo. State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div.
2014).
7 The State filed its appeal first, followed by I.C.'s cross- appeal. The appeal was originally listed on our Excessive Sentence Oral Argument calendar. However, after reviewing the issue presented, we ordered the parties to file briefs and listed the appeal on our plenary calendar.
9 A-5119-13T1 It is well established that like adult offenders, juveniles
are entitled to "credit on the term of a custodial sentence for
any time served in detention or court-ordered shelter care
between apprehension and disposition." R. 5:21-3(e); see State
in the Interest of W.M., 147 N.J. Super. 24, 26 (App. Div. 1977)
(noting that it is "a matter of fundamental fairness that the
juvenile receive credit for predisposition custody"); see also
State v. Franklin, 175 N.J. 456, 472 (2003) (holding that
juveniles are entitled to gap-time credit in appropriate cases).
It is also "axiomatic" that credits can only be awarded for the
days that an offender has been "in custody." State v. Evers,
368 N.J. Super. 159, 170 (App. Div. 2004); cf. State v. Boykins,
___ N.J. Super. ___ (App. Div. 2016) (slip op. at 10-11)
(concluding that a defendant who committed a second offense
while on bail awaiting trial on his first offense was "in
custody" within the meaning of N.J.S.A. 2C:44-5(b) for purposes
of determining whether he could be sentenced to an extended
term, but noting that the defendant was not entitled to jail
credit for the time he spent on probation or on bail prior to
his trial on the second offense). Thus, an offender is not
entitled to credit for time spent serving a probationary
sentence. Evers, supra, 368 N.J. Super. at 170.
10 A-5119-13T1 Judges in the Family Part have great discretion in
determining an appropriate disposition for a juvenile. C.V.,
supra, 201 N.J. at 295. After adjudicating a juvenile as
delinquent, the judge may incarcerate the juvenile in a
detention center or, as was the case here, place the juvenile on
probation. Ibid. "Probation is a disposition that offers the
[judge] a great amount of flexibility to achieve the [Juvenile
Justice] Code's[8] rehabilitative goals." Id. at 296. Pursuant
to N.J.S.A. 2A:4A-43(b)(3), a judge may
[p]lace the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed three years upon such written conditions as the court deems will aid rehabilitation of the juvenile.
"By granting the [trial judge] a vast amount of flexibility in
setting the conditions of probation, N.J.S.A. 2A:4A-43(b)(3)
allows the [judge] to construct requirements designed to secure
appropriate behavior from the juvenile while obtaining the
particularized rehabilitative and therapeutic help needed by the
particular child." C.V., supra, 201 N.J. at 297.
A.
Here, the trial judge suspended I.C.'s initial two-year
custodial sentence and placed him on probation in the JISP for
8 N.J.S.A. 2A:4A-20 to -90.
11 A-5119-13T1 an eighteen-month period. As a condition of that probation, the
judge ordered I.C. to participate in Southern's community home
program. In his cross-appeal, I.C. argues that, after I.C.
violated his probation, the judge should have given him credit
for the 173 days he had already spent at Southern. We disagree.
In S.T., we rejected a similar argument. Supra, 273 N.J.
Super. at 447. In that case, the juvenile was placed on
probation for three years conditioned on the successful
completion of an eighteen-month residential program at the
Pinelands Residential Group Program ("Pinelands"). Id. at 439.
Like the Southern program at issue in the present case, the
focus of the Pinelands program was the rehabilitation of the
juvenile offender. Id. at 446.9 The Pinelands program provided
the juveniles placed there with counseling, academic courses,
and vocational instruction. Ibid. The juveniles at Pinelands
were permitted to join in staff-supervised shopping trips and
recreational activities. Id. at 447. The juveniles also had to
comply with the facility's rules of behavior. Id. at 446-47.
Under these circumstances, we determined that the juvenile
in S.T. "participated in the Pinelands program as a condition of
probation, not as an incident of incarceration." Id. at 443.
9 The juveniles at Pinelands had been adjudicated as sex offenders. Ibid.
12 A-5119-13T1 Therefore, we held that the juvenile was not entitled to credit
against his subsequent custodial sentence for the time he spent
in this program. Id. at 447. In explaining our ruling, we
stated:
The[] parameters of participation in the Pinelands program accord with the purposes of the Code of Juvenile Justice. They are simply reasonable terms of a probationary disposition. Unless the disposition made by the Family Part judge purposely confined a juvenile to incarceration, such restrictions could not be considered custodial. Applied to the Pinelands program, where by definition all participants are juvenile probationers, it would be antithetical to the Code of [Juvenile] Justice and its emphasis on rehabilitation to determine these rules act to convert the program from one of treatment to one of custody. Accordingly, we refuse to reduce a custodial disposition for a probation violation by time spent at this residential probation facility.
[Id. at 447.]
Similarly, in C.V., the Court held that the juvenile was
not entitled to credit for the time she spent in two similar
residential programs. Supra, 201 N.J. at 294. The Court noted
that "C.V., like S.T., served time in restrictive residential
programs as a condition of probation" that "were meant to
facilitate her rehabilitation." Ibid. Therefore, the Court
concluded that the juvenile's placements in these programs did
13 A-5119-13T1 "not satisfy the intended concept of detention in Rule 5:21-3(e)
to qualify for mandatory day-to-day credit." Ibid.
The trial judge properly applied these precedents in this
case and correctly determined that I.C. was not entitled to 173
days of credit against his two-year custodial sentence for the
time he spent at Southern. As in C.V. and S.T., I.C. was placed
at Southern as a condition of his probation and his custodial
sentence was suspended. Southern developed an individualized
case action plan for I.C., and he participated in an educational
program. As a result, I.C. obtained his G.E.D. Although I.C.
was restricted to the program's campus, he was permitted to
accompany staff on field and shopping trips. Because I.C. was
on probation rather than "in custody" while at Southern, he was
not entitled to credit against his subsequent custodial sentence
for the time he spent in this community program. Therefore, we
affirm the judge's denial of I.C.'s request for these credits.
B.
Turning to the State's appeal, it asserts that the judge
mistakenly granted I.C. 163 days of credit for the period after
he returned home from Southern to serve the remainder of his
eighteen-month probationary term in the JISP. We agree.
As noted above, "JISP is a statewide dispositional
alternative to juvenile detention." K.O., supra, 217 N.J. at 88
14 A-5119-13T1 n.3. While the "rehabilitation techniques" employed in the JISP
are "more stringent than juvenile probation," they are "less
rigid than detention or commitment." Ibid. Because the JISP is
therefore not "detention or court-ordered shelter care," I.C.
was not entitled to credit on his custodial sentence for the
time he spent in the JISP. R. 3:21-3(e).
Indeed, the restrictions placed on I.C. in the JISP were
less restrictive than those imposed at Southern or at the
residential facilities involved in C.V. and S.T., where the
juveniles were housed away from home and could not leave the
facilities without staff approval or an escort. Yet, as
discussed above, their participation in these residential
programs was deemed to be non-custodial for purposes of
detention credits.
Here, I.C. lived with his family after his release from
Southern. He was not permitted to use illegal drugs or alcohol,
had to abide by a reasonable curfew, and was required to
participate in an employment internship program. While I.C. was
subject to searches of his person and his home, and had to abide
by other rules of behavior, these were normal requirements of
probation designed to "aid [the] rehabilitation of the
juvenile." N.J.S.A. 2A:4A-43(b)(3). Contrary to the trial
judge's finding, these restrictions did not "parallel the
15 A-5119-13T1 restrictions of incarceration" and, therefore, I.C. was not
entitled to credits for the time he spent at home in the JISP.
The fact that I.C. was required to wear an electronic
monitoring device does not change this result. We have
previously held that a defendant is not entitled to jail credit
for time spent participating on an electronic monitoring
wristlet program as a condition of his pretrial release on bail.
State v. Mastapeter, 290 N.J. Super. 56, 62-63 (App. Div.),
certif. denied, 146 N.J. 569 (1996). Similarly, we have held
that defendants who were sentenced to a home detention program
where their physical location was monitored by electronic
devices were not serving a "term of imprisonment" as required by
N.J.S.A. 2C:40-26, a statute mandating jail terms for persons
convicted of driving while their license was suspended for a
violation of our drunk driving laws. State v. Harris, 439 N.J.
Super. 150, 160 (App. Div.), certif. denied, 221 N.J. 566
(2015).
Although he was required to maintain a reasonable curfew,
I.C. was not on "house arrest" during his participation in the
JISP. The monitoring device he wore did not restrict his
movements. Indeed, I.C. was wearing the device when he carried
a knife into a high school that he did not attend. Thus, the
fact that I.C. was required to wear a monitoring bracelet did
16 A-5119-13T1 not convert his probationary term in the JISP to a custodial
sentence entitling him to the award of credits.
Finally, we briefly note that the judge also erred by
attempting to compare the JISP to the adult Intensive
Supervision Program ("ISP") because the two programs are not the
same, and serve different purposes. The JISP is clearly a
probation program designed as an "alternative to juvenile
detention." K.O., supra, 217 N.J. at 88 n.3. On the other
hand, the adult ISP "is essentially a post-sentence, post-
incarceration program of judicial intervention and diversion
back to the community." State v. Clay, 230 N.J. Super. 509, 512
(App. Div. 1989), aff'd o.b., 118 N.J. 251 (1990). It has been
described as "a form of intermediate punishment between
incarceration and probation -- for certain carefully screened
non-violent offenders." Id. at 513 (emphasis added). Adult
"ISP was designed to test whether an intermediate form of
punishment, one that would be less costly than prison, but more
onerous and restrictive than traditional probation, would
achieve the criminal justice objective of deterrence and
rehabilitation." New Jersey Judiciary Observes 20th
Anniversary of ISP: Changing Lives Through
Intensive Supervision, New Jersey Courts, http:
//www.judiciary.state.nj.us/pressrel/2003/pr031030.html (last
17 A-5119-13T1 visited Sept. 12, 2106). Adult offenders earn "ISP T[ime]
C[redit,]" rather than jail credits, for the days they spend in
the ISP following their release into the community. State v.
Adams, 436 N.J. Super. 106, 110 (App. Div.), certif. denied, 220
N.J. 101 (2014).
In sum, we conclude that the trial judge erred in granting
I.C. credit against his two-year aggregate custodial sentence
for the 163 days he spent at home in the JISP. Therefore, we
reverse this portion of the judge's determination and remand for
the issuance of a corrected Juvenile Order of Disposition
setting forth the correct number of credits due I.C.10
Affirmed in part; reversed in part; and remanded. We do
not retain jurisdiction.
10 As noted above, I.C. was entitled to 194 days of credit, comprising the 115 days he spent in the detention center following his arrest on December 25, 2012 through April 18, 2013, and the 79 days he spent in the detention center following his arrest on March 20, 2014 through June 6, 2014, the date he was sentenced to Jamesburg.
18 A-5119-13T1