Parole Ineligibility and Intermittent Jail Sentences (Part 6)

The three-judge panel continued: We acknowledge that the sponsor of the bill equated the mandated 180-day parole ineligible term to a six-month period. See Sponsor’s Statement to A. 4303 (Nov. 30, 2009) (“A person convicted of violating the bill’s provisions is to be sentenced to a term of imprisonment which would include a six-month period of parole ineligibility.”); see also Assemb. Law & Pub. Safety Comm. Statement to Assemb. Comm. Substitute for A. 4303 (Dec. 3, 2009) (same). However, the legislative history may not create ambiguity that is absent on the face of the statute. We decline to rewrite the “180 days” as found in the statute, to state “six months.” “[A] court may not rewrite a statute or add language that the Legislature omitted.” State v. Munafo (2015). We conclude the reference to six months in the sponsor’s statement was simply an imprecise summary of the statutory language, without anticipating the issue of intermittent sentencing presented to us.

Finally, even if the State’s and the Attorney General’s readings of were plausible, they at most leave us with an ambiguous penal enactment, because the contrary reading is no less plausible. As discussed above, extrinsic legislative materials do not address the interpretative issue before us. Therefore, the rule of lenity would compel us to reject the State’s and Attorney General’s construction.

Based on the foregoing analysis, we are constrained to reverse and remand the sentences of Rene Rodriguez and Elizabeth Colon, as N.J.S.A. 2C:46-20(c) precludes a partial-day, nights-only sentence under N.J.S.A. 2C:43-2(b)(7). As for Eric Lowers and Stephen Nolan, we modify their sentences to provide that the commencement of their service on Friday evening, shall not occur at a time earlier in the day than their release on Sunday evening, to assure credit for two days. We remand for reconsideration of the sentence of Courtney Swiderski, who was sentenced to imprisonment on Saturday and Sunday. Unless she reports at the very beginning of Saturday until the very end of Sunday, she would complete service of only one day each weekend.’

This last sentence is likely to cause interpretation and logistical problems at some of New Jersey’s county jails. As far as interpretation, it seems the Court meant that an offender would have to report at the 12 am on Saturday and stay in jail until 12 am Monday. However, the Court did not give this detailed instruction. Logistically, there is bound to be resistance from some jails with staffing issues and people showing up on midnight at Saturday to check in for week-end sentences.