The panel continued: The Legislature tellingly chose to define the sentence in terms of 180 days, not six months, or half-a-year. A day is “any 24-hour period; the time it takes the earth to revolve once on its axis.” Black’s Law Dictionary 479 (10th ed. 2014). Thus, any continuous twenty-four-hour period of custody satisfies a day’s imprisonment. By contrast, a month is “any time period approximating 30 days,” or the “period extending from a date in one calendar month to the corresponding date in the following month,” The American Heritage Dictionary 812 (2d College ed. 1985). Had the Legislature defined the sentence in terms of months, one could make a stronger argument that the Legislature intended the days be served consecutively in groups of at least thirty. The Legislature did not.
However, the plain meaning of a “day” precludes counting a nightly stint of say, twelve hours, as one of the 180 days required. Furthermore, aggregating two twelve-hour nightly stints would constitute only the equivalent of a day (and a rough equivalent at that, as it would join one night-time period with another of the same, rather than with one day-time period). Where the Legislature has approved such aggregation, it has said so. In municipal court, “a court may order that a sentence of imprisonment be served periodically on particular days, rather than consecutively.” In such circumstances, the Legislature expressly provided, “The person imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served.”
To demonstrate the asserted unfairness of an intermittent sentence, the State contended in oral argument that partial days must count as a full day, using the counting mechanism for jail credits. Thus, the State contended, a twenty-four-hour period of incarceration beginning one calendar day and ending the next would count as two days, thereby enabling a defendant with an intermittent sentence to serve significantly less actual time in custody than a defendant with a continuous sentence. However, the counting rule for jail credit pertains to time in custody “before sentence is ever pronounced.” The rule was devised for a different purpose and does not bind our effort to reconcile N.J.S.A. 2C:40-26 and N.J.S.A. 2C:43-2(b)(7).
The State’s argument overlooks the fact that jail credits necessarily pertain to days that were served consecutively before sentencing occurred. Thus, there is no opportunity for the defense to manipulate the calculation of jail credits through an intermittent sentence.
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