The Appellate panel continued in relevant part: In Rodriguez, the Court reasoned that an intermittent sentence under N.J.S.A. 2C:43-2(b)(7) is not authorized for a conviction under N.J.S.A. 2C:40-26 because N.J.S.A. 2C:40-26(c) “otherwise provides” for service of a mandatory period of parole ineligibility. Here, unlike in Rodriguez, there is no Criminal Code provision that “otherwise provides” for a sentence that is inconsistent with imposition of a split sentence for a person convicted of violating N.J.S.A. 2C:40-26. Imposition of the parole ineligibility period required under N.J.S.A. 2C:40-26(c) is not inconsistent with imposition of a split sentence. The period of parole ineligibility merely defines the manner in which the term of imprisonment that is imposed as a condition of probation will be served. The plain language of N.J.S.A. 2C:43-3(b)(2) imposes only one condition related to the permissible term of imprisonment for a split sentence; it must be 364 days or less. Defendant’s sentences, individually and in the aggregate, satisfy that condition, and they are therefore authorized by N.J.S.A. 2C:43-2(b)(2).
Defendant also contends he could not be sentenced in accordance with N.J.S.A. 2C:43-2(b)(2) because the court imposed a term of “imprisonment” in accordance with N.J.S.A. 2C:43-6. He relies on Hartye, where the Court considered whether a term of imprisonment as a condition of probation could be imposed when, due to the defendant’s lack of a prior conviction of an offense, the presumption of non-incarceration under N.J.S.A. 2C:44-1(3) applied. In its analysis, the Court in Hartye explained that “a sentence of imprisonment under N.J.S.A. 2C:43-2(b)(3) was intended by the Legislature to be different and distinct from a prison term imposed as a condition of probation under N.J.S.A. 2C:43-2(b)(2).” Id. at 419.
Attorneys should propose split sentences involving 360 days of incarcerations as opposed to the more common 364 days. The four days is unlikely to make a difference to prosecutors. Since county jails usually do not parole their inmates, the four-day difference could lead to a shorter sentence for some defendants. Even if it is just one day shorter, there is value in a day of freedom compared to a day of incarceration.