Persistent Offender Statute and Prior Crimes Dates (Part 2)

by | Aug 9, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

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.”

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred completely exceeded all expectations with the result of my case.
John M
Google star 1Google star 2Google star 3Google star 4Google star 5
I love the insight! It helps to keep my kids out of troubel!
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation .
Raumelis R
Google star 1Google star 2Google star 3Google star 4Google star 5
Best criminal defense lawyer in ocean county!!
Austin A
Google star 1Google star 2Google star 3Google star 4Google star 5
Called back within 10 minutes,very easy to talk to. Not judgmental at all. I am hopeful about the outcome.
Colleen H
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred helped me in a civil matter and was very attentive to my needs and responsive to my emails. Also very detail-oriented and timely. Highly recommend.
Kristen C
Google star 1Google star 2Google star 3Google star 4Google star 5
Very knowledgeable within every aspect of the law. Highly recommend his talent for your criminal defense.
Will S
Google star 1Google star 2Google star 3Google star 4Google star 5
Hired Mr.Sisto to handle a case of mine a couple of months ago and while the service was okay the customer service was awful. When I had inquired about a charge I was unsure of on my bill, Mr. Sisto immediately got defensive and had the unprofessionalism to ask me if I “was high” for asking this question. I wonder if Mr. Sisto asks all of his clients this question or only the ones who have jobs in the cannabis industry? Regardless, I don’t believe this was an appropriate question to ask, regardless of the industry one works in, and therefore Mr. Sisto needs to heavily work on his customer service. Edit: Mr. Sisto had the UNPROFESSIONALISM to reach out to my family and ask them to ask me to take down my review instead of reaching out directly towards me when it was I who was his client, not my family. Clearly speaks to the unprofessionalism surrounding this practice. This has not been the only time Mr.Sisto has gone directly to my family instead of me, his client, for important legal matters and I will not seek out his services again. For those who may not understand Spanish, the email starts with “You should speak to your daughter regarding the review she has just published.” Edit to Response: As an attorney, one should be able to make appropriate questions and comments regardless if a client is “uncooperative” or “disrespectful.” The fact that rather than apologizing for the awful interaction with your firm, and I was not released “within hours” as you claim shows how low value your firm is and how you openly instead chose to harass my family through email for my initial review rather than actually revomy case which I ended up doing and you chareged me for . Regardless of results, your character speaks volumes and anyone who reads this would know better than to give their money to an awful person such as yourself. What a shame
Ximena C
Google star 1Google star 2Google star 3Google star 4Google star 5
Great experience overall having Frederick P Sisto as my attorney. Sisto understands his client, very insightful and is an expert in his field. Truly a professional and marvelous individual.
Maybelin R
Google star 1Google star 2Google star 3Google star 4Google star 5
For the people. For the little guy My legal bully
Glennlykesmusic