Intermittent Jail Sentences and Parole Ineligibility (Part 2)

by | Jul 31, 2019 | Blog, Criminal Law

The New Jersey Supreme Court concluded in relevant part: A finding to the contrary could allow offenders sentenced under NERA, the Graves Act, or for the most serious CDS offenses to serve their periods of parole ineligibility on nights or weekends. The parties agree that allowing the most dangerous offenders — those guilty of crimes the Legislature has found are the most serious — to serve their sentences on nights or weekends is illogical. It is a result the Legislature could not have intended.

What’s more, although — as the Appellate Division concluded — parole and intermittent sentencing are distinct concepts, the prohibition of parole necessarily dictates the prohibition of intermittent sentencing. To find otherwise would create an “absurd result.” When the Legislature proscribes parole, the offender cannot be released from custody. See N.J.A.C. 10A:71-6.4 (outlining extensive conditions with which any offender granted parole must comply). During an intermittent sentence, however, an offender is given complete freedom during the time they are not incarcerated. Therefore, allowing a person convicted under N.J.S.A. 2C:40-26 the increased freedom of intermittent sentencing when the Legislature has simultaneously prohibited the regulated release of parole for the fixed minimum period of time of 180 days creates an illogical result that cannot be the intention of the Legislature.

Likewise, we reject the view advanced by defendants, the Public Defender, and the Appellate Division that the Legislature’s omission of the term “consecutive days” in N.J.S.A. 2C:40-26(c) evinces a legislative intent to permit intermittent sentences. The authorities cited by the parties and the panel that reference the term “consecutive days” are either outside the Criminal Code or are clearly inapposite. See, e.g., N.J.S.A. 39:4-50(a); N.J.S.A. 2A:4A-43(c)(1); see also N.J.S.A. 2C:7-2(a)(2) (using the term in relation to school enrollment or employment in prescribing certain sex offender registration requirements); N.J.S.A. 2C:46-2(a)(2) (governing sanctions for noncompliance with court-imposed obligations); N.J.S.A. 2C:43-8.1 (defining “seasonally leased premises”).

Accordingly, we overrule the sentencing court’s determination, affirmed by the Appellate Division, that individuals convicted under N.J.S.A. 2C:40-26 may serve their sentences on nights or weekends pursuant to N.J.S.A. 2C:43-2(b)(7). Indeed, the Legislature has provided otherwise. We therefore need not address the Appellate Division’s mandate that defendants serve their intermittent sentences in twenty-four-hour continuous periods. Finally, because N.J.S.A. 2C:40-26(c)’s language in the context of Title 2C’s sentencing regime is clear, we reach our conclusion without resort to extrinsic aids and need not consider the rule of lenity. For the reasons set forth above, we reverse the judgment of the Appellate Division and remand for resentencing as to Colon. As to Lowers, Nolan, and Swiderski, we remand with leave to file motions to vacate their guilty pleas.

A counter to the Court’s point about allowing the most dangerous offenders to serve weekend sentences being illogical is that NERA only applies to state prison sentences of three years or more, not county jail sentences of 364 days or less. Since the fourth-degree statute at issue only calls for 180 days of “parole ineligibility”, it only applies to county jail sentences and is therefore distinguishable and amenable to weekend sentencing.