The Court continued: The allowance of partial day credit pre-dates enactment of the Code in 1978, L. 1978, c. 95. See L. 1969, c. 146, § 1, codified at N.J.S.A. 2A:8-30.1 (allowing fractional credit of intermittent sentences for offenses punishable by imprisonment for thirty days or less), repealed by L. 1993, c. 293, § 6.
In State v. Kotsev, (App. Div. 2007) and State v. Luthe, (App. Div. 2006), the court interpreted N.J.S.A. 39:4-50(a)(3), which states that a person convicted of a third or subsequent DUI shall be sentenced to “imprisonment for a term of not less than 180 days,” but up to ninety days may be served in an inpatient rehabilitation program. In Kotsev, the defendant argued the court should have sentenced him to ninety days in the Sheriff’s Labor Assistance Program (SLAP), instead of jail. Holding that non-custodial sentences were not allowed, the panel stated, “SLAP is not an option.” Id. at 392. It then added without further analysis in dictum, “Weekend service is not an option.” Ibid.
In Luthe, we rejected defendant’s argument that the trial court’s refusal to consider “alternative sentencing options” denied her equal protection. We held, “There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative.” Presented with anecdotal information that some trial courts imposed such dispositions, including “weekend reporting,” the panel stated, “If disparity exists as to the use of these alternative programs, it must cease, consistent with our construction of the statute.”
The references to weekend sentences in Kotsev and Luthe are dicta. They also pertain to a different violation of a different statute with a different legislative history. The decisions do not persuade us that weekend sentences are non-custodial dispositions. Notably, neither the State nor the Attorney General rely on Kotsev or Luthe in their briefs before us.
We also need not decide here whether an intermittent sentence is “easier time” or “harder time” than a continuous one. We presume that depends on the offender’s personality and situation. See John M. Castellano, Practice Insights, N.Y. Penal Law § 85.00 (Lexis Nexis 2018) (noting that “for many reasons, not all defendants have the ability to handle the difficult prospect of regular re-incarceration or its attendant stresses”). An intermittent prisoner faces potentially severe consequences for failing to return timely to custody. See N.J.S.A. 2C:29-5 (defining crime of escape to include the unauthorized failure “to return to official detention following temporary leave granted for a specific purpose or limited period”).
In sum, the Legislature has provided intermittent sentencing as an option to sentencing courts. We decline to find that it chose to preclude that sentencing option in N.J.S.A. 2C:40-26 absent a clear expression of the intent do so. Reversed and remanded as to Rodriguez and Colon; modified as to Lowers and Nolan; and remanded for reconsideration as to Swiderski. We do not retain jurisdiction. We stay our decision for thirty days, to enable a party to seek any relief from the Supreme Court.
“Dicta” refers to the language of a Court’s opinion that does not apply to the case at hand. It may be considered persuasive, but not binding.