The Supreme Court has guided that “when a provision of the Code is modeled after the MPC, it is appropriate to consider the MPC and any commentary to interpret the intent of the statutory language.” Although the Court in Hudson cautioned that New Jersey’s rejection of the MPC approach imposing an outer limit on the accumulation of consecutive sentences limits the utility of the comments to MPC section 7.06 in that regard, the Court has since resorted to the commentary to shed light on other parts of the statute.
Subsection b of N.J.S.A. 2C:44-5, including its exception for offenses committed “while in custody” is virtually identical to subsection (2) of MPC 7.06. The only difference is New Jersey’s use of the word “offense” where the MPC uses “crime.” The comments to MPC section 7.06 explain that “as indicated by the phrase ‘other than a crime committed while in custody'” subsection (2) “does not cover offenses committed while the defendant is in custody preparatory to either the first or the second trial.” Model Penal Code § 7.06, commentary at 278-79. A footnote makes clear that “custody for this purpose would also include a defendant released on recognizance or on bail.”
The comment continues: Subsection (2) assures that when an offender is apprehended for multiple offenses he will not be afforded disparate treatment depending upon the number or order of his trials. At the same time, the quoted phrase “other than a crime committed while in custody” prevents insulation from additional sentences for offenses committed during custody after the time of apprehension, with the dangerous immunity that this would imply.
The MPC Commentary on subsection (2) of 7.06 identifies the purpose behind the provision and provides meaning for the phrase “while in custody.” Both speak directly to defendant’s situation. Subsection b guarantees a defendant that the timing of his trials for multiple charges will have as little bearing as possible on his exposure to multiple extended-term sentences, thereby thwarting a prosecutor who might attempt to manipulate the sequence of trials to maximize the length of the defendant’s sentences. Because defendant committed the kidnapping and rape charged in Indictment II two days before jury selection was scheduled to begin in his trial on Indictment I, the risk for such manipulation here was minimal, if not non-existent.
But the subsection also insures that the protection from multiple extended-term sentences is not afforded to insulate a defendant from an otherwise applicable extended-term sentence for an offense he commits while on bail awaiting trial for the first offense. To do otherwise would be akin to allowing a defendant a “free crime,” at least with respect to extended-term exposure. The subsection thus prevents both the State and the defendant from thwarting the statutory purpose of insuring sentencing uniformity and fairness.
Interpreting the “in custody” language in this manner is in keeping with traditional notions of a person’s status while on bail awaiting trial, and is also consistent with the 1983 amendment to N.J.S.A. 2C:44-5, which added subsection h, creating a presumption that a term of imprisonment for an offense committed while released, with or without bail, pending disposition of a previous offense . . . shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the court in consideration of the character and conditions of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others.
The Court has noted that “the objective of the 1983 amendments was to stiffen penalties for defendants who commit crimes while released on probation, parole, or bail.” Having considered the statutory language and available legislative history, we are convinced that defendant’s second extended-term sentence for kidnapping arising out of Indictment II, committed while he was on probation and out on bail awaiting trial on Indictment I was not an illegal sentence.