concurring.
I am in agreement with the ultimate conclusion that defendant is not entitled to gap-time credits. I write separately to express my view that there is no overlap requirement in the gap-time statute, N.J.S.A. 2C:44-5(b)(2), and to set forth a separate rationale for denying gap-time credits—the impossibility of prosecutorial manipulation.
*529I.
The gap-time statute provides that “when a person is sentenced at different times for two offenses, both committed prior to the sentencing on the first, he is to be given credit against the aggregate of both sentences for any time served on the first.” Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:44-5 at 1130 (2010). Specifically, the statute provides:
b. Sentences of imprisonment imposed at different times. 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:
(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 term 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.
[N.J.S.A. 2C:44-5(b).]
This appeal addresses the application of subsection (b)(2), which
requires that a defendant who has been sentenced to imprisonment and is subsequently sentenced to another term for an offense committed prior to the imposition of the former sentence (other than an offense committed while in custody) be “credited” at the time of the second sentence for so much of the term of imprisonment as the defendant has served on the prior sentence.
[Booker v. N.J. State Parole Bd., 136 N.J. 257, 259, 642 A.2d 984 (1994).]
In State v. Franklin, 175 N.J. 456, 815 A.2d 964 (2003), we recently reaffirmed, in clear language, the gap-time statute’s overall purposes: “to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time.” Id. at 462, 815 A.2d 964 (quoting Booker, supra, 136 N.J. at 260, 642 A.2d 984) (internal quotation marks omitted). In Franklin, we went on to set forth the applicable standard:
*530The three-prong test for entitlement to gap-time credit requires a showing that (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 occurred prior to the imposition of the first sentence.
[Ibid.]
In doing so, we stated unequivocally that:
If those elements are established, then the defendant must be awarded credit for the time served on the prior sentence when the permissible aggregate length of the term or terms is determined.
[Ibid. (emphasis added) (quoting State v. Carreker, 172 N.J. 100, 105, 796 A.2d 847 (2002)) (internal quotation marks omitted).]
Under that rather clear paradigm, defendant, who was sentenced to imprisonment and thereafter sentenced to another term for an offense committed prior to the first sentence, is eligible for gap-time credits.
II.
When interpreting a statute, this Court must accord it its plain meaning. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Overlaying a requirement that defendant be serving the original sentence when the later sentence is imposed fails to give voice to the clear language of N.J.S.A. 2C:44-5(b) and neglects to afford this penal statute the strict construction it deserves. See State v. Hodde, 181 N.J. 375, 379, 858 A.2d 1126 (2004) (noting that criminal statutes “are to be strictly construed”). Indeed, the plain language of N.J.S.A. 2C:44-5(b) gives no indication that it requires such an overlap.
That reading of the statute is consistent with our prior judicial practice, which has awarded credit for sentences that have long since concluded. See, e.g., State v. Lawlor, 222 N.J.Super. 241, 245, 536 A.2d 766 (App.Div.1988) (“[S]ervice of previously imposed terms and currently imposed terms need not overlap to entitle a defendant to this credit.” (Emphasis added)); see also State v. Ruiz, 355 N.J.Super. 237, 242, 809 A.2d 890 (Law Div.2002) (“[Defendant] need not be currently serving a sentence of imprisonment for gap-time to apply so long as both offenses occurred prior to the first sentence.” (Emphasis added)); State v. French, *531313 N.J.Super. 457, 463 n. 7, 712 A.2d 1281 (Law Div.1997) (“[G]ap time must be awarded even if the defendant has completed the earlier sentence....”).
Indeed, the only support for a different interpretation is dictum in State v. Garland 226 N.J.Super. 356, 361, 544 A.2d 417 (App.Div.), certif. denied, 114 N.J. 288, 554 A.2d 845 (1988), an entirely inapposite jail-credit case, id. at 360, 544 A.2d 417; see R. 3:21-8 (“The 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.”).
I subscribe to the views expressed in Lawlor, Ruiz, and French, and find no support in N.J.S.A. 2C:44-5 for the requirement of sentence overlap. Indeed, to the extent that the gap-time statute is informed by the notion of providing defendant with the “lost opportunity” for concurrency that a simultaneous sentencing process would have provided, the requirement of overlap makes no sense whatsoever. Moreover, even if the Code commentary, see, e.g., infra at 547, 20 A.3d at 1149 (quoting 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:44-5, at 336 (1971) (“Subsection (b) is addressed to the problem of a sentence of imprisonment imposed upon a person who is already serving a term under a sentence imposed for an earlier offense.”)), could be considered to support another interpretation, our rules of statutory construction require the application of lenity, a corollary to the doctrine of strict construction, which dictates that criminal statutes must be interpreted in favor of a defendant, State v. Gelman, 195 N.J. 475, 482, 950 A.2d 879 (2008). That said, defendant should not be barred from gap-time credit because his earlier sentence has been completed.
III.
However, as we have said, there is an equally important principle underlying gap time and that is to “deter a prosecutor from ‘dragging his heels’ in pursuing an indictment when he knows that an inmate is available for a final disposition of an offense.” *532Carreker, supra, 172 N.J. at 106-07, 796 A.2d 847 (quoting State v. Hugley, 198 N.J.Super. 152, 158, 486 A.2d 900 (App.Div.1985)) (internal quotation marks omitted). As a matter of practice, courts do not engage in fact-finding proceedings in every case to determine whether or not prosecutorial manipulation has occurred. Ruiz, supra, 355 N.J.Super. at 245, 809 A.2d 890. Rather, defendant is afforded gap-time credit if he satisfies the three prongs of the statute. Franklin, supra, 175 N.J. at 462, 815 A.2d 964. The only exceptions have been cases in which the possibility of manipulation was infinitesimal to non-existent.
Guided by that principle, our courts have occasionally refrained from awarding gap-time credit in situations where there was little or no risk of manipulation by the prosecutor. See Carreker, supra, 172 N.J. at 113-14, 796 A.2d 847 (justifying denial of gap-time credit where defendant was serving out-of-state sentence because risk of manipulation was non-existent); Hugley, supra, 198 N.J.Super. at 159, 486 A.2d 900 (gap-time credit not awarded where prosecutor not capable of detecting defendant residing out of state’s boundaries and jurisdiction).
That is the case here. Here, the victim of the 1994 sexual assault could not identify the perpetrator. Although a rape kit provided a DNA sample,
[t]he record is clear that, when the 1994 sexual assault occurred, there was no DNA sample from defendant against which a comparison could have been made; a sample of defendant’s DNA was not provided until defendant’s conviction on the 1998 sexual assault. Even then, the task of comparing DNA in dormant or “cold” cases against an avalanche of DNA samples then being collected under the DNA Act was daunting. In 2002, the Attorney General started a comprehensive comparison program that, by 2004, yielded a match between defendant’s DNA sample and the DNA retrieved and secured from the 1994 sexual assault. By that point, ten years had elapsed since defendant had committed the 1994 sexual assault, and the State was required to identify the whereabouts of both defendant and his victim. Once defendant and his victim were located, the State promptly sought to confirm its findings via a new DNA sample from defendant and by comparing that new sample against the DNA from the 1994 sexual assault. When that comparison confirmed the match, defendant was arrested.
[Infra at 550, 20 A.3d at 1151.]
*533In these unique circumstances, manipulation by the prosecutor was a veritable impossibility. Here, the State was prevented from pursuing conviction by factors beyond its control. It was only the development of reliable forensic testing techniques and a DNA database that did not exist at the time of the 1994 sexual assault that changed the calculus. Therefore, one of the fundamental aims of the gap-time statute, deterrence of prosecutorial “heel-dragging,” is simply not implicated. Awarding gap-time credit would thus undermine a fundamental purpose of the statute. Accordingly, no gap time is warranted in this case.