The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3165-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAEEM LIVINGSTON,
Defendant-Appellant.
_______________________
Submitted October 16, 2024 – Decided October 31, 2024
Before Judges Gooden Brown and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-02-0456.
Naeem Livingston, appellant pro se.
Theodore N. Stephens II, Essex County Prosecutor,
attorney for respondent (Matthew E. Hanley, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Naeem Livingston appeals from the May 3, 2023, Law Division
order denying his motion to amend his judgment of conviction by altering the
award of jail credits and gap-time credits. Because defendant was given the
proper credits at sentencing, we affirm.
Defendant was charged with various offenses in 2014 and 2016
indictments for crimes allegedly committed on January 4, 2014, and September
15, 2015, respectively. He pleaded guilty to two counts of third-degree
distribution of a controlled dangerous substance in a school zone, N.J.S.A.
2C:35-7, charged in the 2014 indictment, and was sentenced on September 28,
2015, to three years in prison, with a one-year period of parole ineligibility. He
was taken into custody at sentencing and finished serving that sentence on
October 1, 2017. However, he remained in custody on the open 2016 indictment.
Defendant was subsequently tried by a jury on the 2016 indictment, which
charged him with third-degree attempted aggravated assault, N.J.S.A. 2C:12-
1(b)(2) (count one); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b) (count two); second-degree possession of a firearm for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree eluding an officer,
N.J.S.A. 2C:29-2(b) (count four); second-degree aggravated assault while
eluding an officer, N.J.S.A. 2C:12-1(b)(6) (counts five through eleven); fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count twelve);
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count thirteen); and third-
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degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (counts fourteen through
sixteen). He was convicted of counts four, ten, thirteen, and fourteen, as
amended, and sentenced on February 2, 2018, to an aggregate extended term of
fourteen years in prison, subject to the eighty-five percent parole ineligibility
provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. He was awarded
735 days of gap-time credit from September 28, 2015, to October 1, 2017, and
123 days of jail credit from October 2, 2017, to February 1, 2018.1
On March 14, 2023, defendant moved to amend the judgment of
conviction entered on the 2016 indictment, asserting he should have received all
jail credits totaling 858 days as he never left custody once arrested on September
28, 2015. Relying on N.J.S.A. 2C:44-5(b) and State v. Hernandez, 208 N.J. 24
(2011), modified, State v. C.H., 228 N.J. 111 (2017), the judge denied the
motion in a May 3, 2023, order and accompanying written decision. This appeal
followed.
On appeal, defendant raises the following points for our consideration:
1
We affirmed his convictions and sentence in an unpublished opinion, State v.
Livingston, No. A-3470-17 (App. Div. Feb. 27, 2020), and affirmed the denial
of his petition for post-conviction relief in another unpublished opinion, State v.
Livingston, No. A-0649-22 (App. Div. Feb. 13, 2024). Defendant never
challenged the award of credits in either appeal nor at his original sentencing on
the 2016 indictment.
A-3165-22
3
POINT I
DEFENDANT ARGUES HE SHOULD HAVE HAD A
HEARING BECAUSE THE STATE OF NEW
JERSEY ERRED IN GIVING DEFENDANT GAP-
TIME INSTEAD OF JAIL CREDIT AND THE STATE
OF NEW JERSEY ERRED IN DENYING
DEFENDANT'S MOTION FOR THE
MISAPPLICATION OF JAIL CREDITS.
POINT II
DEFENDANT'S JUDGMENT OF CONVICTION
CONTAINS AN ERROR VIA GAP TIME INSTEAD
OF JAIL CREDIT BECAUSE DEFENDANT WAS
ARRESTED FOR THE PRESENT OFFENSE AND
WAS NEVER RELEASED PURSUANT TO [RULE]
3:21-5 [AND] [RULE] 3:21-8.
"A defendant may be eligible to receive jail credits under Rule 3:21-8 or
gap-time credits under N.J.S.A. 2C:44-5(b)(2) to reduce the time to be served
on [a] sentence." Hernandez, 208 N.J. at 36. Rule 3:21-8 states that "[t]he
defendant shall receive credit on the term of a custodial sentence for any time
served in custody in jail or in a state hospital between arrest and the imposition
of sentence." However, "once the first sentence is imposed, a defendant
awaiting imposition of another sentence accrues no more jail credit under Rule
3:21-8." Hernandez, 208 N.J. at 50 (emphasis added). "Jail credits are applied
to the 'front end' of the sentence and reduce a parole ineligibility term that is
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part of a sentence." State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013)
(quoting Hernandez, 208 N.J. at 37).
N.J.S.A. 2C:44-5(b) defines gap-time credits as follows:
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:
....
. . . 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[.]
"Gap-time credit" is so-named "because it 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 [the defendant] began serving the
first sentence." Hernandez, 208 N.J. at 38. "[O]nce the first sentence is
imposed[,] a defendant is only entitled to gap-time credits for time accrued
thereafter when sentenced on the other charges." Id. at 47. "To demonstrate an
entitlement to gap-time credit, a defendant must establish three facts: '(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
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5
occurred prior to the imposition of the first sentence.'" Id. at 38 (alterations in
original) (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). "If the defendant
meets those requirements, the sentencing court is obligated to award gap -time
credits." Ibid. These credits "are applied to the 'back end'" of "the defendant's
aggregate sentence." Ibid. (quoting Booker v. N.J. State Parole Bd., 136 N.J.
257, 260 (1994)).
Applying these principles, we are satisfied that gap-time credits were
properly awarded because defendant was first sentenced on the 2014 indictment
and then sentenced on the 2016 indictment, and both offenses occurred prior to
the imposition of the first sentence. Thus, the requirements for awarding gap -
time credit were met. Moreover, once the first sentence was imposed and
defendant was awaiting imposition of the second sentence, no additional jail
credit accrued. Although the judge misstated some of the dates in his written
decision, he correctly applied the governing legal principles and reached the
correct conclusion. In any event, on appeal, a judge's award of credits for
periods of incarceration "is subject to de novo review." State v. L.H., 206 N.J.
528, 543 (2011) (Rivera-Soto, J., concurring) (citing State v. Brown, 118 N.J.
595, 604 (1990)).
Affirmed.
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