The Appellate Division continued in relevant part: Here, the periods of parole ineligibility imposed as conditions of defendant’s imprisonment do not fall within the Hartye proscription. The trial court did not sentence defendant to a term of imprisonment at a state correctional facility in accordance with N.J.S.A. 2C:43-2(b)(3) or impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b). Instead, the court imposed a county jail sentence as authorized by N.J.S.A. 2C:43-2(b)(2) and imposed a parole ineligibility period solely as mandated by N.J.S.A. 2C:40-26(c). In addition, as implicitly recognized by the court in Guzman, where, as here, a period of parole ineligibility is authorized or required by another provision of the Criminal Code, imprisonment that includes a parole ineligibility period may be imposed as a condition of probation.
We also observe that our Supreme Court has, in another context, directly approved imposition of a split sentence under N.J.S.A. 2C:43-2(b)(2) that included imprisonment and a period of parole ineligibility. In State v. Pineda, the defendant pleaded guilty to death by auto, N.J.S.A. 2C:11-5(b), and he was sentenced to a four-year custodial term, subject to a 270-day period of parole ineligibility. At that time, the death by auto statute, N.J.S.A. 2C:11-5(b), mandated either imposition of a 270-day period of incarceration or 270 days of community service as part of any sentence imposed for a conviction. Id. at 624.
On the defendant’s direct appeal, we interpreted N.J.S.A. 2C:11-5(b) “to mean that the sentencing judge must deprive a defendant of his liberty for at least 270 days by imprisonment without parole, community related service or a split sentence combining the two.” State v. Pineda, (App. Div. 1988). The Court rejected our interpretation and directed that a court sentencing a defendant under N.J.S.A. 2C:11-5(b) must first determine if imprisonment is appropriate and, if so, decide the ordinary term of imprisonment to be imposed. Where a term of imprisonment is imposed, the Court required imposition of the 270-day period of parole ineligibility provided in N.J.S.A. 2C:11-5(b).
A distinction regarding whether community service can be a substitute for incarceration lies in the precise language of the particular statute. The phrase “in the county jail” signifies a sentence that can not be satisfied with community service.
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