                                NOT FOR PUBLICATION WITHOUT THE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-2516-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FAHEEM K. COOK,

     Defendant-Appellant.
____________________________

                   Submitted December 16, 2019 – Decided January 7, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 11-02-0325
                   and 12-04-1051.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew Robert Burroughs, Designated
                   Counsel, on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Faheem Cook appeals from the court's order denying, without

an evidentiary hearing, his petition for post-conviction relief. Cook contends

his trial counsel was ineffective by failing to challenge the court's award of gap-

time and jail credits in connection with his sentence on three indictments. He

argues:

            AS    FAIR   PLAY   AND     EQUITABLE
            CONSIDERATIONS REQUIRE THAT MR. COOK
            RECEIVE 501 DAYS OF JAIL TIME CREDIT
            INSTEAD OF GAP-TIME CREDIT, THE PCR
            COURT SHOULD HAVE GRANTED HIS PETITION.

      We affirm.

      On September 19, 2011, after a jury found Cook guilty of an August 28,

2009 robbery and conspiracy to commit robbery, the court imposed an aggregate

seven-year sentence subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, and awarded 353 days of jail credit. The jail credit covered a brief

period of incarceration in 2009, and his subsequent incarceration beginning

November 19, 2010.

      Over a year later, on December 5, 2012, Cook pleaded guilty to three

counts of third-degree theft committed on July 11, 2010, under a second

indictment. Also on that day, Cook pleaded guilty to an August 8, 2010 first-

degree armed robbery, and related charges, under a third indictment.            On


                                                                           A-2516-18T2
                                        2
February 1, 2013, the court sentenced Cook to an aggregate five years under the

second indictment, and an aggregate twelve years subject to NERA under the

third indictment. In connection with both sentences, the court awarded 304 days

of jail credit and 501 days of gap time. The jail credit covered the period

between his November 2010 arrest and his September 2011 sentencing.

      Defendant's appeal lacks sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). He was only entitled to gap time for the 501 days,

because he was already sentenced and serving time in prison on the first

indictment when he was sentenced under the second and third indictments for

crimes committed before the first sentence. See N.J.S.A. 2C:44-5(b)(2); State

v. Joe, 228 N.J. 125, 131 (2017). His plea counsel was not ineffective by

withholding a meritless argument for jail credit. See State v. O'Neal, 190 N.J.

601, 619 (2007).

      Affirmed.




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