The Court continued in relevant part: When sentencing a defendant pursuant to NERA, the court has discretion in setting the term that is used to calculate the period of parole ineligibility but has no discretion in determining the period of parole ineligibility. NERA represents a clear mandate by the Legislature that those who commit the most violent of crimes must serve 85% of the sentence imposed — their period of parole ineligibility — before they are eligible for release under Rule 3:21-10(b)(2). To permit defendant’s release under Rule 3:21- 10(b)(2) would effectively reduce his NERA sentence, which the Legislature and the plain language of NERA expressly forbid.
Further, allowing the sentencing court to resentence an individual to reduce the original sentence for the purpose of reducing the NERA period of parole ineligibility would thwart the clear and unambiguous language of the statute, as well as the expressed intent of the Legislature. The recently enacted Compassionate Release Statute, N.J.S.A. 30:4-123.51e, provides that notice must be given to victims or the victims’ families as to a petition for compassionate release so that they may present a statement at a hearing or testify in court. Given the clear legislative intent that an inmate not be afforded compassionate release without such safeguards, the Court declines to permit defendant to seek release under Rule 3:21-10(b)(2) prior to the completion of his parole ineligibility period, as required by NERA.
The Court’s description of the No Early Release Act applying to those who “commit the most violent crimes” is somewhat deceiving. Death by Auto or Vessel is a NERA offense. It applies to purely accidental homicides. Moreover, when the same offense was codified under the name “Vehicular Homicide” it was a fourth degree, non-NERA offense for which most convicts received probation with no jail time. It was later upgraded to a third-degree non-NERA offense, and ultimately a second-degree NERA offense.
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