207 A.3d 1269
N.J.2019Background
- Five defendants pleaded guilty to fourth-degree offenses under N.J.S.A. 2C:40-26 (operating with a suspended license related to DWI) requiring a fixed minimum 180-day term during which the defendant is not eligible for parole.
- After prior appellate decisions rejected replacement of the 180-day jail term with treatment/home-detention programs, the defendants were resentenced to 180 days in county jail to be served intermittently (nights or weekends) under N.J.S.A. 2C:43-2(b)(7).
- The sentencing judge and the Appellate Division upheld intermittent service but required each counted jail day to be a continuous 24-hour period.
- The State appealed to the New Jersey Supreme Court, arguing that the parole-ineligibility language in N.J.S.A. 2C:40-26(c) bars intermittent sentences because intermittent release is functionally inconsistent with parole prohibition.
- Defendants and the Public Defender argued intermittent service does not reduce total confinement, is distinct from parole, and should be allowed (or resolved in their favor under the rule of lenity).
- The Supreme Court granted certification to decide whether N.J.S.A. 2C:40-26(c) "provides otherwise" so as to preclude intermittent sentencing under N.J.S.A. 2C:43-2(b)(7).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 2C:40-26(c)’s fixed minimum parole-ineligibility term precludes intermittent (night/weekend) service under N.J.S.A. 2C:43-2(b)(7) | The parole-ineligibility phrase manifests a legislative intent to bar release (including intermittent release) during the 180-day minimum; intermittent release is akin to parole and undermines the statute’s public-safety purpose | Intermittent service does not reduce total confinement and is distinct from parole; omission of “consecutive” shows Legislature intended no continuous-day requirement; ambiguities favor defendants under rule of lenity | Held for the State: N.J.S.A. 2C:40-26(c) bars intermittent sentences; defendants may not serve the 180-day parole-ineligible term intermittently |
Key Cases Cited
- State v. Harris, 439 N.J. Super. 150 (App. Div. 2015) (rejected substitute noncustodial programs that eliminated required jail term)
- State v. French, 437 N.J. Super. 333 (App. Div. 2014) (same principle: improper to replace mandatory jail term with alternative program)
- State v. Toussaint, 440 N.J. Super. 526 (App. Div. 2015) (discussed lenity and judicial discretion on alternative sentencing)
- State v. Webster, 383 N.J. Super. 432 (App. Div. 2006) (interpreting parole-disqualification serving requirements)
- Meyer v. State Parole Bd., 345 N.J. Super. 424 (App. Div. 2001) (addressing timing of parole-disqualification relative to release)
- State v. Carrigan, 428 N.J. Super. 609 (App. Div. 2012) (discussing legislative purpose behind strengthening penalties in N.J.S.A. 2C:40-26)
- DiProspero v. Penn, 183 N.J. 477 (2005) (canon: plain statutory language is primary indicator of legislative intent)