NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0751-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BOYKINS,

Defendant-Appellant.

___________________________

Argued February 8, 2016 – Decided

Before Judges Sabatino, Accurso and Suter.1

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Indictment No. 

90-04-0519.

Alison Perrone, Designated Counsel, argued 

the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Ms. Perrone, on 

the brief).

Nicholas Norcia, Assistant Prosecutor, 

argued the cause for respondent (Joseph D. 

Coronato, Ocean County Prosecutor, attorney; 

Samuel Marzarella, Supervising Assistant 

Prosecutor, of counsel; Mr. Norcia, on the 

brief).

 

1 Judge Suter did not participate in oral argument. The parties, 

however, have consented to her participation in the decision. 

R. 2:13-2(b).

September 7, 2016

APPROVED FOR PUBLICATION

September 7, 2016

APPELLATE DIVISION
2 A-0751-14T1

The opinion of the court was delivered by

ACCURSO, J.A.D.

Defendant James Boykins is a career criminal and a serial

rapist. Between the ages of twenty and thirty-five, he was 

convicted in the states of New Jersey, Maryland, and California 

and in the District of Columbia on charges of kidnapping, 

aggravated sexual assault, assault with a deadly weapon, 

burglary and drug distribution. Our focus is on the extendedterm sentences defendant received for two of these convictions

in New Jersey under N.J.S.A. 2C:44-5. 

Specifically, we consider whether defendant, who received a 

second extended-term sentence for a crime he committed while on 

bail awaiting trial on the offense for which he received his 

first extended-term sentence, was "in custody" within the 

meaning of N.J.S.A. 2C:44-5b when he committed the second 

offense. Because we conclude defendant was "in custody" within 

the meaning of N.J.S.A. 2C:44-5b when he committed the second 

offense while on bail awaiting trial, we reject his claim that 

his second extended term constituted an illegal sentence.

The circumstances of the convictions are as follows. In 

February 1990, defendant was serving a three-year term of 

probation imposed in September 1987 on an assault conviction out 

of the District of Columbia and a three-year term of probation 
3 A-0751-14T1

imposed in September 1989 on a conviction for distribution of 

cocaine in New Jersey. He was also out on bail awaiting trial 

on Ocean County Indictment Number 89-02-0153 (Indictment I), on 

charges of kidnapping, aggravated sexual assault and related 

offenses. Two days before jury selection on Indictment I, 

defendant kidnapped and raped a young woman walking to a bus 

stop in Lakewood. 

Defendant was convicted by the jury on all counts of

Indictment I. The court granted the State's motion for a 

discretionary extended term and sentenced defendant to life in 

prison with a twenty-five-year period of parole ineligibility

for kidnapping, and to a concurrent twenty-year sentence for 

aggravated sexual assault into which it merged the remaining

convictions.2 

During the course of trial on Indictment I, defendant was 

arrested at the courthouse for the Lakewood rape on charges that 

would form the basis of Ocean County Indictment Number 90-04-

0519 (Indictment II). He was convicted by a jury of kidnapping 

and two counts of criminal sexual contact on Indictment II in 

1993 and sentenced to another discretionary extended term of 

 

2 We affirmed defendant's conviction and sentence on Indictment I 

in an unreported opinion, State v. Boykins, No. A-0943-90 (App. 

Div. Apr. 2, 1993), and the Supreme Court denied certification, 

State v. Boykins, 134 N.J. 479 (1993).
4 A-0751-14T1

life imprisonment with a twenty-five-year period of parole 

ineligibility on the kidnapping count consecutive to the 

sentence he was then serving arising out of Indictment I.3

In 2011, following our decision in State v. Pennington, 418 

N.J. Super. 548, 557-58 (App. Div. 2011) (holding that a second 

extended term cannot be imposed on an offense occurring before 

the imposition of the first extended term under N.J.S.A. 2C:44-

5b(1)), certif. denied, 209 N.J. 595 (2012), defendant filed his 

third application for post-conviction relief (PCR),

4 contending 

his extended-term sentence on Indictment II was illegal. The 

Law Division denied the application finding it time-barred and 

the sentence imposed not illegal.

By the time the matter was before us for review, the 

Supreme Court had decided State v. Hudson, 209 N.J. 513, 517 

(2012), holding the defendant in that case could not be 

 

3 We affirmed defendant's conviction and sentence on Indictment 

II in an unreported opinion, without prejudice to an application 

for post-conviction relief on the grounds of ineffective 

assistance and a motion to the sentencing court for gap-time 

credit. State v. Boykins, No. A-5147-93 (App. Div. Nov. 15, 

1996). The record does not reveal a petition for certification 

from that decision.

4 Defendant's first two PCR applications alleging ineffective 

assistance had already been denied and affirmed on appeal. 

State v. Boykins, No. A-4872-97 (App. Div. Nov. 10, 1999), 

certif. denied, 163 N.J. 76 (2000); State v. Boykins, No. A3727-03 (App. Div. Feb. 6, 2006), certif. denied, 188 N.J. 356 

(2006). 
5 A-0751-14T1

sentenced to a second extended-term sentence for an offense 

committed prior to the imposition of the extended-term sentence 

he was then serving in accordance with the prohibitions of 

N.J.S.A. 2C:44-5b(1). Accordingly, we remanded the matter to 

the Law Division to consider whether the holding in Hudson

should be applied retroactively and, if so, whether defendant's 

sentence on Indictment II is illegal. State v. Boykins, No. A5428-11 (App. Div. Dec. 19, 2013).

The Law Division on remand again denied defendant's 

application. In a written opinion, the court determined that 

Hudson was "distinguishable both factually and conceptually from 

the facts in this case." The court reasoned that defendant, who 

was on probation and out on bail when he committed the crimes 

charged in Indictment II, was "in custody" within the meaning of 

N.J.S.A. 2C:44-5b, and thus was excepted by subsection b(1) of 

the statute from Hudson's holding. Because the court found 

Hudson distinguishable, it did not address the issue of whether 

the case should be given retroactive effect.

Defendant appeals, raising the following issues. 

POINT I

N.J.S.A. 2C:44-5 PROHIBITS THE IMPOSITION OF 

MULTIPLE EXTENDED TERMS IN THIS CASE.
6 A-0751-14T1

POINT II

THE COURT'S DECISION IN HUDSON SHOULD BE 

APPLIED RETROACTIVELY TO DEFENDANT.

Since our remand in this matter, we have in an unrelated 

case held that Hudson did not announce a new rule of law, and 

thus the holding in Hudson must be "construed as 'one that has 

always applied.'" State v. Bull, No. A-5233-12 (App. Div. Apr. 

7, 2015) (slip op. at 7) (quoting State v. Feal, 194 N.J. 293, 

307 (2008)), certif. granted, 224 N.J. 124 (2016).5 Although we 

continue to be of the opinion that retroactive application of 

the Court's interpretation of N.J.S.A. 2C:44-5b in Hudson is 

required, the Supreme Court is poised to resolve that question 

in Bull, and we need not analyze the issue again here. 

For our purposes, it is sufficient to proceed as if Hudson

applies to defendant's conviction and sentence on Indictment II,

and consider instead whether the fact that he was on probation 

and out on bail when he committed those crimes renders the 

offenses ones "committed while in custody," and thus not subject 

to the statute's prohibition against multiple extended terms. 

 

5 We are, of course, mindful of Rule 1:36-3, which provides that 

"[n]o unpublished opinion shall constitute precedent or be 

binding upon any court" and should not be cited by any court 

"except to the extent required by res judicata, collateral 

estoppel, the single controversy doctrine or any other similar 

principle of law." In keeping with the rule, we cite the case 

only to advise that the issue of Hudson's retroactivity

defendant raises here is now pending before the Supreme Court.
7 A-0751-14T1

Having considered defendant's arguments to the contrary, we 

conclude defendant's crimes on Indictment II were committed

while he was "in custody" as that term was understood by the 

drafters of N.J.S.A. 2C:44-5b, and therefore that his second 

extended-term sentence was not illegal. We accordingly affirm 

the denial of his petition.

Because the only issue on this appeal is one of statutory 

interpretation of N.J.S.A. 2C:44-5 and its application to 

defendant's sentence, our review is plenary. See Hudson, supra, 

209 N.J. at 529. Subsections a and b of N.J.S.A. 2C:44-5

provide:

a. Sentences of imprisonment for more than 

one offense. When multiple sentences of 

imprisonment are imposed on a defendant for 

more than one offense, including an offense 

for which a previous suspended sentence or 

sentence of probation has been revoked, such 

multiple sentences shall run concurrently or

consecutively as the court determines at the 

time of sentence, except that:

(1) The aggregate of consecutive terms to a 

county institution shall not exceed 18 

months; and

(2) Not more than one sentence for an 

extended term shall be imposed.

There shall be no overall outer limit on the 

cumulation of consecutive sentences for 

multiple offenses.

b. Sentences of imprisonment imposed at 

different times. When a defendant who has 

previously been sentenced to imprisonment is 
8 A-0751-14T1

subsequently sentenced to another term for

an offense committed prior to the former 

sentence, other than an offense committed 

while in custody:

(1) The multiple sentences imposed shall so 

far as possible conform to subsection a. of 

this section; and

(2) 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 terms or 

terms remaining to be served; and

(3) When a new sentence is imposed on a 

prisoner who is on parole, the balance of 

the parole term on the former sentence shall 

not be deemed to run during the period of 

the new imprisonment unless the court 

determines otherwise at the time of 

sentencing.

Thus as the Court explained in Hudson, "[w]ith enactment of 

N.J.S.A. 2C:44-5, the Legislature has woven a piece on how a 

sentence should be configured for a defendant confronted with 

the possibility of serving multiple sentences." 209 N.J. at 

530. 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." Ibid. 

N.J.S.A. 2C:44-5b "on the other hand, instructs courts about 

sentences of imprisonment that are imposed at different times,"
9 A-0751-14T1

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.'" Id. at 531. 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." Id. at 531, 535. 

Defendant raises an issue not addressed in Hudson. He 

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."6 He 

 

6 It is perhaps more accurate to say that the effect of admitting 

a defendant to bail "is to transfer custody to his 'bail' and at 

the same time keep the accused constructively in the custody of 

the court while the charge is pending." State v. Rice, 137 N.J. 

Super. 593, 599-600 (Law Div. 1975), aff'd o.b., 148 N.J. Super.

145 (App. Div. 1977). Black's defines custody as "[t]he care 

and control of a thing or person for inspection, preservation, 

or security," Black's Law Dictionary 467 (10th ed. 2014), and 

notes that "constructive custody" is the "[c]ustody of a person 

(such as a parolee or probationer) whose freedom is controlled 

by legal authority but who is not under direct physical 

control." Ibid.

The general law of bail and suretyship is in accord. See, 

e.g., 8A Am. Jur. 2d Bail and Recognizance § 1, Jack K. Levin 

and Lucas Martin (May 2014) ("While released on bail prior to 

trial, a defendant is still considered to be within the 

constructive custody of the law."); see also Albright v. Oliver, 

510 U.S. 266, 277-78, 114 S. Ct. 807, 815, 127 L. Ed. 2d 114, 

126 (1994) (Ginsburg, J., concurring) ("At common law, an 

(continued)
10 A-0751-14T1

contends it is precisely because a defendant on bail or 

probation is not in custody that no jail credit is awarded for 

such time, relying on State v. Towey, 114 N.J. 69, 85-86 (1989) 

(rejecting the defendant's contention that she was entitled to 

jail credits during time spent in a psychiatric hospital as 

condition of bail because she was not "in custody" within the 

meaning of Rule 3:21-8), and State v. Mirakaj, 268 N.J. Super.

48, 52-53 (App. Div. 1993) (rejecting that the defendant's stay 

in a convent as a condition of bail was the equivalent of being 

in jail or a state hospital for purposes of awarding jail credit 

under Rule 3:21-8). 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, see State v. 

 

(continued)

arrested person's seizure was deemed to continue even after 

release from official custody. See, e.g., 2 M. Hale, Pleas of 

the Crown 124 ('he that is bailed, is in supposition of law 

still in custody, and the parties that take him to bail are in 

law his keepers'); 4 W. Blackstone, Commentaries 297 (bail in 

both civil and criminal cases is 'a delivery or bailment, of a 

person to his sureties, . . . he being supposed to continue in 

their friendly custody, instead of going to gaol')").
11 A-0751-14T1

Hernandez, 208 N.J. 24, 36-37 (2011), 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. See

id. at 36-39 (explaining the difference between jail credits and 

gap-time credits); see also State v. Rippy, 431 N.J. Super. 338, 

347-48 (App. Div. 2013) (noting jail credit is governed by Rule

3:21-8, whereas gap-time credit is governed by statute,

specifically, N.J.S.A. 2C:44-5b), certif. denied, 217 N.J. 284 

(2014). 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. See State v. DiCarlo, 67 N.J. 321, 

325 (1975) (noting "the adventitious occurrence of like or 

similar phrases, or even of similar subject matter, in laws 

enacted for wholly different ends will normally not justify 

applying the rule" of in pari materia as an aid in statutory 

construction). 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."

N.J.S.A. 2C:44-5 is based on Model Penal Code (MPC) section 

7.06. State v. Robinson, 217 N.J. 594, 606 (2014); Cannel, New 

Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:44-5 
12 A-0751-14T1

(2015). The Supreme Court has guided that "[w]hen a provision 

of the Code is modeled after the MPC, it is appropriate to 

consider the MPC and any commentary to interpret the intent of 

the statutory language."7 Ibid. Although the Court in Hudson

cautioned that New Jersey's rejection of the MPC approach 

imposing an outer limit on the accumulation of consecutive 

sentences limits the utility of the comments to MPC section 7.06 

in that regard, see Hudson, supra, 209 N.J. at 530 n.9, the 

Court has since resorted to the commentary to shed light on 

other parts of the statute. See Robinson, supra, 217 N.J. at

606.

Subsection b of N.J.S.A. 2C:44-5, including its exception 

for offenses committed "while in custody" is virtually identical 

to subsection (2) of MPC 7.06. The only difference is New 

Jersey's use of the word "offense" where the MPC uses "crime."8 

The comments to MPC section 7.06 explain that "[a]s 

indicated by the phrase 'other than a crime committed while in 

 

7 The Supreme Court has observed that "[t]he New Jersey Criminal 

Law Revision Commission's commentary on this section provides 

little guidance." Robinson, supra, 217 N.J. at 606 n.4 (citing 

II Final Report of the New Jersey Criminal Law Revision 

Commission, The New Jersey Penal Code: Commentary § 2C:44-5 at 

335 (1971)).

8 See N.J.S.A. 2C:1-14k (defining offense to include crimes, 

disorderly persons offenses and petty disorderly persons 

offenses "unless a particular section in this code is intended 

to apply to less than all three").
13 A-0751-14T1

custody'" subsection (2) "does not cover offenses committed 

while the defendant is in custody preparatory to either the 

first or the second trial." Model Penal Code § 7.06, commentary

at 278-79. A footnote makes clear that "[c]ustody for this 

purpose would also include a defendant released on recognizance 

or on bail." Id. at 279 n.15 (emphasis added). The comment 

continues:

Subsection (2) assures that when an offender 

is apprehended for multiple offenses he will 

not be afforded disparate treatment 

depending upon the number or order of his 

trials. At the same time, the quoted phrase 

["other than a crime committed while in 

custody"] prevents insulation from 

additional sentences for offenses committed 

during custody after the time of 

apprehension, with the dangerous immunity 

that this would imply.

[Id. at 279.] 

The MPC Commentary on subsection (2) of 7.06 identifies the 

purpose behind the provision and provides meaning for the phrase 

"while in custody." Both speak directly to defendant's 

situation. Subsection b guarantees a defendant that the timing 

of his trials for multiple charges will have as little bearing 

as possible on his exposure to multiple extended-term sentences, 

thereby thwarting a prosecutor who might attempt to manipulate 

the sequence of trials to maximize the length of the defendant's 

sentences. See State v. L.H., 206 N.J. 528, 548 (2011). 
14 A-0751-14T1

Because defendant committed the kidnapping and rape charged in 

Indictment II two days before jury selection was scheduled to 

begin in his trial on Indictment I, the risk for such 

manipulation here was minimal, if not non-existent. 

But the subsection also insures that the protection from 

multiple extended-term sentences is not afforded to insulate a 

defendant from an otherwise applicable extended-term sentence 

for an offense he commits while on bail awaiting trial for the 

first offense. To do otherwise would be akin to allowing a 

defendant a "free crime," at least with respect to extended-term 

exposure. See State v. Yarbough, 100 N.J. 627, 643 (1985), 

cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 

(1986). The subsection thus prevents both the State and the 

defendant from thwarting the statutory purpose of insuring 

sentencing uniformity and fairness. 

Interpreting the "in custody" language in this manner is in 

keeping with traditional notions of a person's status while on 

bail awaiting trial, see supra, note 6, and is also consistent 

with the 1983 amendment to N.J.S.A. 2C:44-5, which added 

subsection h, creating a presumption that a term of imprisonment 

for an offense committed while released, 

with or without bail, pending disposition of 

a previous offense . . . shall run 

consecutively to any sentence of 

imprisonment imposed for the previous 

offense, unless the court in consideration 
15 A-0751-14T1

of the character and conditions of the 

defendant, finds that imposition of 

consecutive sentences would be a serious 

injustice which overrides the need to deter 

such conduct by others. 

[N.J.S.A. 2C:44-5h.]

The Court has noted that "the objective of the 1983 amendments 

was to stiffen penalties for defendants who commit crimes while 

released on probation, parole, or bail." State v. Sutton, 132 

N.J. 471, 482 (1993).9 

Having considered the statutory language and available 

legislative history, we are convinced that defendant's second

extended-term sentence for kidnapping arising out of Indictment 

II, committed while he was on probation and out on bail awaiting 

trial on Indictment I was not an illegal sentence under N.J.S.A.

2C:44-5b. The MPC Commentary is persuasive authority which 

defendant cannot counter. The meaning of "in custody" as used 

in Rule 3:21-8, which was enacted at a different time for a 

different purpose by a different branch of government, offers 

 

9 In 1997 after defendant's crimes, the Legislature adopted 

N.J.S.A. 2C:44-5.1, which, among other things, makes the 

imposition of an extended-term sentence mandatory when a 

defendant is being sentenced following a conviction for any one 

of several enumerated crimes, including kidnapping, if "the 

defendant was released on bail or on his own recognizance for 

one of the enumerated crimes and was convicted of that crime." 

N.J.S.A. 2C:44-5.1a. 
16 A-0751-14T1

nothing to illuminate the Legislature's employment of the term 

in N.J.S.A. 2C:44-5.

Affirmed.