The Court continued: The judge also erred in finding defendant to be a persistent offender based on his conclusion that the probationary term imposed in Florida on defendant in May 2004 constituted “confinement” and that defendant’s later release from that purported “confinement” was within ten years of the crime charged here. Being on probation is not the same as being “confined” within the meaning of N.J.S.A. 2C:44-3(a).
We recognize that the Legislature did not define the word “confinement,” thus generating potential uncertainty about its scope when the State seeks a persistent-offender extended term. Despite the fact that the Legislature did not explain what it meant by “confinement,” or, as in some states, express the effect of a probationary term on a persistent-offender statute, we are to give the word “confinement” its “generally accepted meaning.” N.J.S.A. 1:1-1. That generally accepted meaning requires that the confined individual be “imprisoned or restrained,” Black’s Law Dictionary 362 (10th ed. 2014), “deprived of liberty,” Ballentine’s Law Dictionary 244 (3d ed. 1969), or “placed in prison or jail.” While we adhere to the concept that judges, when interpreting statutes, should not “make a fortress out of the dictionary,” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (L. Hand, J.), aff’d, 326 U.S. 404 (1945), the context and the statute’s underlying purpose strongly suggest that the Legislature did not intend that an individual on probation would be considered “confined.” The Legislature undoubtedly meant that “confinement” would not occur unless the defendant had been deprived of his freedom by governmental authorities.
The reason for this interpretation seems obvious. The statute was intended to create the judicial discretion to impose an extended term on an individual incapable of living a law-abiding life for a significant period of time. Our Legislature fixed that period of time at ten years, thus conveying that an individual who is capable of residing in our communities for more than ten years without committing a crime should not be treated as a persistent offender. The portion of the statute that views that ten-year period as commencing from the individual’s release from “confinement” simply deprives that individual of the ability to illogically argue a preceding ten-year crime-free life when that individual was only able to remain crime-free because of imprisonment. An individual on probation, while living with some limitations, is out in society and remains capable of committing a crime
While the Court’s overall logic and the result reach is clearly correct, one piece of the analysis is not completely correct. Inmates can and do commit crimes while incarcerated. Common examples include terroristic threats made from prison phones and the self-explanatory crime of “escape.”
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