On April 12, 2018, a three-judge appellate panel decided the Camden County case of State v. Rene Rodriguez. The principal issue before the Appellate Division was whether a trial court can impose an intermittent jail sentence when the defendant is subject to mandatory incarceration under N.J.S.A 2C:40-26 for driving while suspended.
In relevant part, the Court held: Turning to the statutory language, we find no basis for the argument that an intermittent sentence under N.J.S.A. 2C:43-2(b)(7) violates the parole ineligibility term. Simply put, periodic release under an intermittent sentence is not parole.
The essential nature of parole is release from custody before a prisoner has completed his or her imposed term, subject to conditions that, if satisfied, will reduce the prisoner’s total period of confinement. “Parole is a period of supervised release ‘by which a prisoner is allowed to serve the final portion of his sentence outside the gates of the institution on certain terms and conditions, in order to prepare for his eventual return to society.”
Parole may reduce real time in custody for a flat sentence by as much as two-thirds, not counting commutation time and work credits that may further reduce the parole eligibility term. However, a defendant sentenced to a county jail term must serve at least sixty days before parole eligibility. A prisoner who violates the conditions of his or her release risks the revocation of parole, and the return to custody for the balance of his or her custodial term.
By contrast, periods of release during service of an intermittent sentence do not reduce the total time of confinement. Rather, they simply interrupt the days of custody. As our late, esteemed colleague noted while sitting in the trial court, “The duration of [a] custodial term remains the same whether it is served consecutively or on weekends.” State v. Silva (Law Div. 1989) (Rodriguez, J.). Thus, he rejected the State’s contention that weekend service of a plea-bargained 180-day custodial sentence for a school zone offense, N.J.S.A. 2C:35-7, was a “lesser term of imprisonment.” As John M. Cannel notes, “Subsection b(7) merely authorizes flexibility in the way imprisonment is to be served.”
The mandatory 60 days of parole ineligibility for any county jail sentence is important to know. Many defendants who receive 30 or 60-day jail sentences are not advised that they will be ineligible for parole.