                          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                     NOT FOR PUBLICATION WITHOUT THE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

home in the JISP.

     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
