The Court recognized that both subsections (b)(2) and (b)(3) of N.J.S.A. 2C:43-2 provide for imposition of terms of “imprisonment,” and it noted differences between the imprisonment authorized in each subsection. For example, the Court explained that a term of imprisonment under subsection (b)(3) “must be served in a state correctional facility,” whereas the custodial portion of a split sentence under subsection (b)(2) may only be served in the county jail.
Measured against those standards, the custodial portion of defendant’s sentence, including imposition of the period of parole ineligibility, falls within the imprisonment authorized by N.J.S.A. 2C:43-2(b)(2) and clearly outside the imprisonment authorized by N.J.S.A. 2C:43-2(b)(3). Defendant’s aggregate sentence is less than 364 days, so he will serve the sentence in the county jail and not in a state prison facility. Compare N.J.S.A. 2C:43-10(a) (providing sentences of imprisonment of one year or greater shall be served in the custody of the Commissioner of the Department of Corrections) with N.J.S.A. 2C:43-10(c) (providing, in pertinent part, sentences of imprisonment of less than one year shall be served in the county jail).
The Court in Hartye also stated that “a defendant sentenced to a prison term as a condition of probation may not be exposed to the parole ineligibility term authorized by N.J.S.A. 2C:43-6(b).” In support of that declaration, the Court cites State v. Guzman (Law Div. 1985), where the trial court explained its imposition of a custodial term that included a period of parole ineligibility under N.J.S.A. 2C:43-6(b). The court in Guzman did not impose a split sentence, but it noted that under the circumstances presented, “no ineligibility term could be imposed on imprisonment as a condition of probation,” “as no sentence was imposed under N.J.S.A. 2C:43-6 or any other section of the [Criminal] Code authorizing or requiring same.”
Thus, the court did not suggest a split sentence could not include a period of parole ineligibility during a period of imprisonment imposed as a condition of probation. To the contrary, the court stated only that it could not impose a period of parole ineligibility because it was sentencing defendant to a county jail term of 364 days imprisonment and the Criminal Code did not otherwise authorize or require imposition of a period of parole ineligibility on the term of imprisonment imposed.
An exception to the rule about sentences of less than 364 days being served in the county jail is when an inmate is sentenced to time served in excess of 364 days. An exception to state prison sentences being for over a year is when a judge expressly remands an inmate to state prison with a less than one-year sentence.
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