Judge Vernoia continued in relevant part: More pertinent here, the Court also directed that, where the trial court concludes a probationary sentence is appropriate, “it must condition that term on a 270-day period of community service or of incarceration without parole eligibility.” Ibid. (emphasis added). Thus, the Court permitted and approved a split sentence under N.J.S.A. 2C:43-2(b)(2) that includes imprisonment and a mandatory period of parole ineligibility. We discern no basis to reach a different conclusion here.
We are also mindful that N.J.S.A. 2C:40-26 was enacted in 2009 and became effective on August 1, 2011, L. 2009, c. 333, § 1, long after N.J.S.A. 2C:43-3(b)(2) was enacted in 1979 as part of the Criminal Code. L. 1979, c. 178, § 82. We may therefore properly assume the Legislature was fully aware of the requirements for imposition of a split sentence under N.J.S.A. 2C:43-2(b)(2) when it established the sentencing paradigm set forth in N.J.S.A. 2C:40-26(c). See In re Expungement Petition of J.S. (2015) (explaining the Legislature “is presumed to have been ‘thoroughly conversant with its own prior legislation and the judicial construction of its statutes.’
In enacting N.J.S.A. 2C:40-26, the Legislature required imposition of a minimum 180-day custodial sentence with a 180-day period of parole ineligibility for those convicted of the offense. The Legislature mandated that minimum custodial sentence of imprisonment with full knowledge the plain language of N.J.S.A. 2C:43-2(b)(2) authorized imposition of imprisonment as a condition of probation. If the Legislature intended to exempt sentences of imprisonment imposed under N.J.S.A. 2C:40-26(c) from those permitted by N.J.S.A. 2C:43-2(b)(2) as a condition of probation, it would have done so directly. Instead, the Legislature let the plain language of N.J.S.A. 2C:43-2(b)(2) define the terms of imprisonment that may be imposed as a condition of probation, and, as noted, a sentence that is less than 364 days that includes a mandatory period of parole ineligibility imposed under N.J.S.A. 2C:40-26(c) is therefore authorized and legal.
It is ironic that precedent for the assertion that the Legislature is presumed to be familiar with its previous legislation comes from an expungement case. Subsequent expungement cases have recognized that the expungement statutes themselves are contradictory. The logical inference is that in contradicting its own previous legislation, the Legislature was not aware of it at the time the contradictory legislation was enacted.
