Parole Ineligibility and Intermittent Jail Sentences (Part 4)

The Court continued: The Public Defender conceded at oral argument that a defendant sentenced to nights pursuant to N.J.S.A. 2C:43-2(b)(7) should be credited only with the fraction of the day served, toward the 180-day minimum. Thus, an offender receiving an intermittent term of nights would serve, hour-for-hour, the same period in custody as one who served 180 days continuously. However, we conclude that aggregation of partial days is not permitted by the plain language of N.J.S.A. 2C:40-26(c), particularly absent express authority to do so as found in N.J.S.A. 2B:12-22. “The law will not ordinarily concern itself with fractions of a day; the day is deemed to be the single unit of time, unless the statute expressly provides for a different approach.” U.S. Steel Corp. v. Dir., Div. of Taxation, (1962).

We recognize that a mandatory minimum sentence substantially restricts a court’s sentencing discretion. A judge may not reduce a mandatory minimum sentence nor “impose a sentence that, in length or form, is different from that plainly provided in the statute.” State v. Lopez, (App. Div. 2007). For example, under the Graves Act, a judge may not suspend a mandatory minimum sentence, impose a non-custodial disposition, or impose an indeterminate term for a youthful offender. State v. Des Marets (1983).

Under N.J.S.A. 2C:40-26 in particular, we held that the statute did not allow for service of the sentence in an inpatient drug rehabilitation program, on home detention, or community service, “Because N.J.S.A. 2C:40-26(c) requires a ‘fixed minimum sentence of not less than 180 days’ without parole eligibility, a sentence to a non-custodial ‘alternative program,’ instead of jail, is plainly illegal.”

Fans of the original Godfather movie can appreciate the Public Defender conceding that allowing nights in jail to count as full days would contradict the holding of U.S. Steel. Absent a reversal of Supreme Court precedent, only Michael Corleone and Hyman Roth are “bigger than U.S. Steel.”