State v. Rene M. Rodriguez (081046) (Camden County and Statewide) , 238 N.J. 105 ( 2019 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Rene M. Rodriguez (A-80-17) (081046)
Argued March 12, 2019 -- Decided May 21, 2019
SOLOMON, J., writing for the Court.
In these consolidated appeals, defendants were convicted of fourth-degree
operating a motor vehicle during a period of license suspension for driving while
intoxicated (DWI) under N.J.S.A. 2C:40-26. The issue presented is whether N.J.S.A.
2C:40-26(c) -- which prescribes a “fixed minimum” sentence of at least 180 days without
parole eligibility -- overrides N.J.S.A. 2C:43-2(b)(7)’s general sentencing option, which
allows a court to impose a sentence that is served “at night or on weekends with liberty to
work or to participate in training or educational programs,” unless otherwise provided.
All five defendants -- Rene Rodriguez, Elizabeth Colon, Eric Lowers, Stephen
Nolan, and Courtney Swiderski -- appeared before the same judge and were sentenced to
180 days in the county jail, to be served intermittently. Rodriguez and Colon were
ordered to serve their sentences four nights per week, while Lowers, Nolan, and
Swiderski were ordered to serve their sentences on weekends.
In a consolidated opinion, the Appellate Division held that the sentencing court
did not exceed its authority by imposing intermittent sentences. 454 N.J. Super. 214, 218
(App. Div. 2018). However, the panel held that defendants “must serve continuous
twenty-four-hour periods [in jail] to satisfy each day of the 180-day mandated term.”
Ibid. The panel reasoned that an intermittent sentence does not violate the parole
ineligibility term or “reduce the total time of confinement.” Id. at 224-25. The panel also
pointed out that N.J.S.A. 2C:40-26(c) contains no language requiring that days be served
consecutively. Id. at 226. The panel reasoned that intermittent sentences would have a
greater deterrent effect and relied on the rule of lenity. Id. at 231-32.
The Court granted the State’s petition for certification. 234 N.J. 314 (2018).
HELD: An individual sentenced to a fixed minimum term of parole ineligibility under
N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on
weekends pursuant to N.J.S.A. 2C:43-2(b)(7).
1
1. The Criminal Code allows imposition of a sentence of imprisonment to be served “at
night or on weekends” unless the Criminal Code provides otherwise. N.J.S.A. 2C:43-
2(a), (b)(7). N.J.S.A. 2C:40-26 makes it a crime of the fourth degree to either: (a)
operate a motor vehicle, for the second time, during a period of license suspension for a
DWI; or (b) operate a motor vehicle with a suspended license for a second or subsequent
DWI. It specifically provides that an individual convicted under either of those
subsections shall be sentenced to a “fixed minimum sentence of not less than 180 days
during which the defendant shall not be eligible for parole.” N.J.S.A. 2C:40-26(c)
(emphases added). The issue is whether that provision counts as providing “otherwise”
within the meaning of N.J.S.A. 2C:43-2. (pp. 12-14)
2. Sentencing requirements for those guilty of the most serious crimes are contained in
three statutory provisions calling for mandatory periods of parole ineligibility: N.J.S.A.
2C:43-7.2(a) (for individuals convicted of certain violent offenses under the No Early
Release Act (NERA)); N.J.S.A. 2C:43-6(c) and (d) (for those who arm themselves before
going forth to commit crimes under the Graves Act); and N.J.S.A. 2C:43-6(f) (for those
convicted of certain controlled dangerous substance (CDS) offenses). On the other hand,
when the Legislature wishes to leave the imposition of a period of parole ineligibility to
the discretion of the sentencing judge, it has generally done so by clearly indicating that
the court may waive the parole disqualifier or by silence. (pp. 14-16)
3. Because mandatory fixed periods of parole ineligibility apply to the most dangerous
offenders, the Legislature chose N.J.S.A. 2C:40-26’s language -- which mirrors that of
the NERA, Graves Act, and CDS-offense sentencing provisions cited above -- to serve as
a bar to release, even intermittently, during the period of parole ineligibility. A finding to
the contrary could allow offenders sentenced under NERA, the Graves Act, or for the
most serious CDS offenses to serve their periods of parole ineligibility on nights or
weekends. That is a result the Legislature could not have intended. What’s more, the
prohibition of parole necessarily dictates the prohibition of intermittent sentencing. The
Court disagrees that the Legislature’s omission of the term “consecutive days” in
N.J.S.A. 2C:40-26(c) evinces a legislative intent to permit intermittent sentences. The
Court does not address the Appellate Division’s mandate that defendants serve their
intermittent sentences in twenty-four-hour continuous periods and does not resort to
extrinsic aids or consider the rule of lenity because N.J.S.A. 2C:40-26(c)’s language in
this context is clear. (pp. 16-19)
The judgment of the Appellate Division is REVERSED and the Court
remands for resentencing as to Colon and remands with leave to file motions to
vacate their guilty pleas as to Lowers, Nolan, and Swiderski.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.
2
SUPREME COURT OF NEW JERSEY
A-80 September Term 2017
081046
State of New Jersey,
Plaintiff,
v.
Rene M. Rodriguez,
Defendant.
State of New Jersey,
Plaintiff,
v.
Elizabeth A. Colon,
Defendant.
State of New Jersey,
Plaintiff-Appellant,
v.
Eric L. Lowers,
Defendant-Respondent.
1
State of New Jersey,
Plaintiff-Appellant,
v.
Stephen E. Nolan,
Defendant-Respondent.
State of New Jersey,
Plaintiff-Appellant,
v.
Courtney D. Swiderski,
Defendant-Respondent.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
454 N.J. Super. 214 (App. Div. 2018).
Argued Decided
March 12, 2019 May 21, 2019
Jason Magid, Assistant Prosecutor, argued the cause for
appellant (Mary Eva Colalillo, Camden County
Prosecutor, attorney; Jason Magid, of counsel and on the
brief).
Marissa J. Costello argued the cause for respondents Eric
L. Lowers and Stephen E. Nolan (Costello & Whitmore,
attorneys, Marissa J. Costello, on the letter brief).
2
Mark V. Oddo argued the cause for respondent Courtney
D. Swiderski (DuBois, Sheehan, Hamilton, Levin &
Weissman, attorneys; Mark V. Oddo, on the letter brief).
Carol M. Henderson, Assistant Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Carol M. Henderson, of counsel and on the brief).
Michele E. Friedman, Assistant Deputy Public Defender,
argued the cause for amicus curiae Public Defender of
New Jersey (Joseph E. Krakora, Public Defender,
attorney; Michele E. Friedman, of counsel and on the
brief).
JUSTICE SOLOMON delivered the opinion of the Court.
In these consolidated appeals, defendants were convicted of fourth-
degree operating a motor vehicle during a period of license suspension for
driving while intoxicated (DWI) under N.J.S.A. 2C:40-26. Their sentences
were each to be served intermittently on nights or weekends pursuant to
N.J.S.A. 2C:43-2(b)(7), which allows a court to impose a sentence that is
served “at night or on weekends with liberty to work or to participate in
training or educational programs,” unless otherwise provided.
The issue presented in this appeal is whether N.J.S.A. 2C:40-26(c) --
which prescribes a “fixed minimum” sentence of at least 180 days without
parole eligibility -- overrides N.J.S.A. 2C:43-2(b)(7)’s general sentencing
option. Relying on the language chosen by the Legislature in enacting New
3
Jersey’s Code of Criminal Justice (the Criminal Code or Title 2C), we
conclude that an individual sentenced to a fixed minimum term of parole
ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence
intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7). We
therefore reverse the judgment of the Appellate Division.
I.
The appellate record reveals that, in five cases, Rene Rodriguez,
Elizabeth Colon, Eric Lowers, Stephen Nolan, and Courtney Swiderski
(collectively, defendants) pleaded guilty to fourth-degree driving for a second
time with a license suspended for DWI under N.J.S.A. 2C:40-26(a), or fourth-
degree driving with a license suspended due to a second or subsequent DWI
under N.J.S.A. 2C:40-26(b).1
Initially, three defendants -- Rodriguez, Lowers, and Swiderski -- were
sentenced to 180 days in a treatment program or home detention. The
Appellate Division reversed their sentences and remanded for resentencing
based on State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015), and State
v. French, 437 N.J. Super. 333, 334 (App. Div. 2014) -- opinions that declared
1
Lowers, Nolan, and Swiderski reserved the right to withdraw their guilty
pleas in the event the State’s appeal is successful.
4
illegal sentences that replace some or all of the mandatory 180-day term of
imprisonment with an alternate program.
On remand, all five defendants appeared before the same judge and were
sentenced to 180 days in the county jail, to be served intermittently.
Rodriguez and Colon were ordered to serve their sentences four nights per
week, while Lowers, Nolan, and Swiderski were ordered to serve their
sentences on weekends.
The sentencing judge, in a written decision, reasoned that N.J.S.A.
2C:40-26(c) permitted an intermittent sentence under N.J.S.A. 2C:43-2(b)(7).
The judge distinguished the sentences here from the illegal sentences in French
and Harris, which reduced or eliminated the statutorily mandated minimum
term of imprisonment. The judge explained that, with intermittent sentences,
defendants here would serve the required 180 days of confinement. The judge
reasoned that N.J.S.A. 2C:40-26’s public safety objective would accordingly
be satisfied.
The sentencing judge also highlighted the Appellate Division’s holding
in State v. Toussaint, 440 N.J. Super. 526, 528 (App. Div. 2015) -- that, under
the rule of lenity, a judge’s discretion to impose alternative sentences should
be upheld unless explicitly limited by the Legislature. Because N.J.S.A.
5
2C:40-26’s plain language and legislative history do not address intermittent
sentences, the judge concluded that they are permitted.
On appeal, the Camden County Prosecutor’s Office contended that
N.J.S.A. 2C:40-26(c) implicitly mandates a continuous term of incarceration,
and supersedes N.J.S.A. 2C:43-2(b)(7)’s general authorization of intermittent
sentences. Both the State and amicus curiae the Attorney General argued that
intermittent release is akin to parole, which N.J.S.A. 2C:40-26(c) explicitly
prohibits during the minimum 180-day imprisonment term. They also
contended that intermittent sentences disregard the Legislature’s punitive
purpose in enacting N.J.S.A. 2C:40-26 and, instead, increase the potential
danger to the public.
Defendants and amicus curiae the Office of the Public Defender argued
that a parole-ineligibility term is fundamentally different from, and compatible
with, an intermittent sentence. Specifically, they contended that intermittent
periods of release, unlike parole, do not reduce the overall period of
imprisonment and therefore are consistent with N.J.S.A. 2C:40-26’s legislative
intent -- that the term of incarceration not be reduced. Finally, defendants and
the Public Defender argued that intermittent sentences would have the same, if
not greater, deterrent effect than continuous sentences.
6
The Appellate Division heard the five cases back-to-back on appeal and,
in a consolidated opinion, held that the sentencing court did not exceed its
authority by imposing intermittent sentences. State v. Rodriguez, 454 N.J.
Super. 214, 218 (App. Div. 2018). However, the panel held that defendants
“must serve continuous twenty-four-hour periods [in jail] to satisfy each day of
the 180-day mandated term.” Ibid.The Appellate Division adopted the following reasoning. First, that
“periodic release under an intermittent sentence is not parole,” and therefore
an intermittent sentence under N.J.S.A. 2C:43-2(b)(7) does not violate the
parole ineligibility term mandated by N.J.S.A. 2C:40-26(c). Id. at 224.
Additionally, while parole “may reduce real time in custody for a flat
sentence,” id. at 225, periodic release during an intermittent sentence “do[es]
not reduce the total time of confinement . . . [and] simply interrupt[s] the days
of custody,” ibid. Therefore, “[t]he duration of [a] custodial term remains the
same whether it is served consecutively or on weekends.” Ibid. (second
alteration in original) (quoting State v. Silva, 236 N.J. Super. 90, 92 (Law Div.
1989)). In that regard, the panel found that intermittent sentences are
consistent with both French and Harris. Id. at 229-30.
The panel next rejected the State’s contention that implicit in the
mandate of a 180-day sentence is the requirement that the days be served
7
consecutively. Id. at 226. Referring to other statutes where the Legislature
expressly included the term “consecutive days,” the panel pointed out that
N.J.S.A. 2C:40-26(c) contains no such language. Ibid.Although the Appellate Division found no statutory ambiguity, it
nevertheless considered legislative history. Id. at 230-31. The panel
recognized that the Legislature clearly “intended to stiffen the punishment for
certain repeat offenders,” which is why “[t]he statute tars offenders with
criminal records, and imposes significant terms of incarceration, whether
intermittent or not.” Id. at 231. Still, the panel found no evidence in the
legislative history that the Legislature intended to take a driver off the road for
180 continuous as opposed to intermittent days. Ibid. Instead, the panel
believed that intermittent sentences, by “repeatedly remind[ing the offender] of
his or her crime and its punishment,” would have a greater deterrent effect.
Ibid.Finally, the Appellate Division concluded that because extrinsic
evidence does not address the issue, the rule of lenity compelled adoption of
defendants’ interpretation. Id. at 232.
8
We granted the State’s petition for certification.2 234 N.J. 314 (2018).
The Attorney General and the Office of the Public Defender, who appeared as
amici before the Appellate Division, participated as friends of this Court
pursuant to Rule 1:13-9.
II.
The parties’ arguments here mirror those raised in the Appellate
Division. Additionally, the State and Attorney General explain that “not
eligible for parole” encompasses not only the length of the sentence, but also
the intent that the person shall remain in custody until the expiration of the
mandatory term. In support, the State cites State v. Webster, 383 N.J. Super.
432, 437 (App. Div. 2006), and Meyer v. State Parole Board, 345 N.J. Super.
424, 430 (App. Div. 2001), which require periods of parole disqualification to
be served before any release from custody for offenses subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. The State concludes by taking issue
with the Appellate Division’s application of Silva. The State asserts that,
unlike the statute that governs the sentences here, the statute in Silva explicitly
2
After the Court granted the State’s petition for certification, Rodriguez opted
to serve his 180-day term consecutively rather than await this Court’s decision.
Nevertheless, we address this appeal because it involves four other defendants,
and because resolution of the issue is in the public interest.
9
allows for waiver of mandatory periods of parole ineligibility for certain
offenses.
According to defendants and the Public Defender, the Legislature
included the word “consecutive” in other sentencing statutes when it intended
for the term of imprisonment to be served continuously. In that same vein,
defendants and the Public Defender agree with the Appellate Division that
Harris and French are distinguishable because those cases addressed the
availability of alternatives to imprisonment that would have reduced the actual
period of incarceration. They argue alternatively that if the Court disagrees,
N.J.S.A. 2C:40-26’s ambiguities must be resolved in their favor under the rule
of lenity.
III.
A.
This appeal requires that we interpret sentencing provisions of our
Criminal Code. “Questions related to statutory interpretation are legal ones.”
State v. S.B., 230 N.J. 62, 67 (2017). Thus, “[w]e review such decisions de
novo, ‘unconstrained by deference to the decisions of the trial court or the
appellate panel.’” Ibid. (quoting State v. Grate, 220 N.J. 317, 329 (2015)).
Our de novo review requires that we “give effect to the Legislature’s
intent as evidenced by the ‘language of [the] statute, the policy behind it,
10
concepts of reasonableness and legislative history.’” State v. Carrigan, 428
N.J. Super. 609, 618 (App. Div. 2012) (alteration in original) (quoting Johnson
Mach. Co. v. Manville Sales Corp., 248 N.J. Super. 285, 304 (App. Div.
1991)); see also State v. Robinson, 217 N.J. 594, 604 (2014) (“The objective
of statutory interpretation is to effectuate the intent of the Legislature.”).
We begin with the statute’s plain language, which is the “best indicator”
of legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). A
statute’s plain language must be construed “in context with related provisions
so as to give sense to the legislation as a whole.” Spade v. Select Comfort
Corp., 232 N.J. 504, 515 (2018) (quoting N. Jersey Media Grp., Inc. v.
Township of Lyndhurst, 229 N.J. 541, 570 (2017)). “Unless it is ‘inconsistent
with the manifest intent of the legislature,’ or ‘another or different meaning is
expressly indicated,’ we ascribe to the Legislature’s words and phrases ‘their
generally accepted meaning, according to the approved usage of the
language.’” Finkelman v. Nat’l Football League, 236 N.J. 280, 289 (2019)
(quoting N.J.S.A. 1:1-1).
“If the plain language leads to a clear and unambiguous result, then our
interpretative process is over.” Johnson v. Roselle EZ Quick LLC, 226 N.J.
370, 386 (2016) (quoting Richardson v. PFRS, 192 N.J. 189, 195 (2007)).
However, “if there is ambiguity in the statutory language that leads to more
11
than one plausible interpretation, we may turn to extrinsic evidence, ‘including
legislative history, committee reports, and contemporaneous construction.’”
DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno,
182 N.J. 64, 75 (2004)). “We may also resort to extrinsic evidence if a plain
reading of the statute leads to an absurd result or if the overall statutory
scheme is at odds with the plain language.” Id. at 493. Only when “a statutory
ambiguity cannot be resolved by analysis of the relevant text and the use of
extrinsic aids” does the rule of lenity require, in a criminal case, “that the
ambiguity be resolved in favor of the defendant.” State v. Regis, 208 N.J. 439,
451 (2011).
B.
We begin our application of the canons of statutory construction with the
Criminal Code’s provision governing, generally, the imposition of sentences.
That provision of the Criminal Code, N.J.S.A. 2C:43-2, allows imposition of a
sentence of imprisonment to be served “at night or on weekends” unless the
Criminal Code provides otherwise:
a. Except as otherwise provided by this code, all
persons convicted of an offense or offenses shall be
sentenced in accordance with this chapter.
b. Except as provided in subsection a. of this section
and subject to the applicable provisions of the code, the
court may suspend the imposition of sentence on a
12
person who has been convicted of an offense, or may
sentence him as follows:
...
(7) To imprisonment at night or on weekends
with liberty to work or to participate in training
or educational programs.
Thus, our task is to determine whether the Criminal Code requires that a
sentence under N.J.S.A. 2C:40-26 be served continuously for a minimum
period of 180 days.
N.J.S.A. 2C:40-26 was enacted to “create[] criminal penalties for
persons whose driver’s licenses are suspended for certain drunk driving
offenses and who, while under suspension for those offenses, unlawfully
operate a motor vehicle.” Sponsor’s Statement to S. 2939 2 (L. 2009, c. 333);
Sponsor’s Statement to A. 4303 2 (L. 2009, c. 333) (identical). To accomplish
that goal, N.J.S.A. 2C:40-26 makes it a crime of the fourth degree to either:
(a) operate a motor vehicle, for the second time, during a period of license
suspension for a DWI; or (b) operate a motor vehicle with a suspended license
for a second or subsequent DWI. Consistent with N.J.S.A. 2C:40-26’s stated
purpose, it specifically provides that an individual convicted under either
N.J.S.A. 2C:40-26(a) or (b) shall be sentenced to a “fixed minimum sentence
of not less than 180 days during which the defendant shall not be eligible for
parole.” N.J.S.A. 2C:40-26(c) (emphases added).
13
To ascertain whether N.J.S.A. 2C:40-26(c)’s plain language permits the
imposition of sentences of imprisonment at night or on weekends under
N.J.S.A. 2C:43-2(b)(7), we are required to construe N.J.S.A. 2C:40-26(c)
within the context of Title 2C as a whole to determine whether it provides
“otherwise.” Our determination of the Legislature’s intent in this regard is
informed by the Criminal Code’s mandatory and discretionary sentencing
provisions.
Sentencing requirements for those guilty of the most serious crimes are
contained in three statutory provisions calling for mandatory periods of parole
ineligibility. First, NERA applies to sentences for individuals convicted of
certain violent offenses, such as murder and aggravated sexual assault.
N.J.S.A. 2C:43-7.2(d). To “protect the public by incapacitating the most
violent and predatory offenders,” Governor’s Study Comm’n, Report on Parole
12 (Dec. 23, 1996), the Legislature required those violent offenders to be
sentenced to “a minimum term of 85% of the sentence imposed, during which
[they] shall not be eligible for parole,” N.J.S.A. 2C:43-7.2(a) (emphases
added). Similarly, as “a direct response to a substantial increase in violent
crime in New Jersey,” the Legislature enacted the Graves Act, N.J.S.A. 2C:43-
6(c) and (d), “to ensure incarceration for those who arm themselves before
going forth to commit crimes.” State v. Des Marets, 92 N.J. 62, 68 (1983).
14
Indeed, the Graves Act states in pertinent part that the sentencing court shall
impose a “minimum term . . . during which the defendant shall be ineligible
for parole.” N.J.S.A. 2C:43-6(c) (emphases added). The Legislature repeated
the same admonition when it established a “minimum term . . . during which
the defendant shall be ineligible for parole” for certain controlled dangerous
substance (CDS) offenses. Id. § 6(f) (emphases added).
On the other hand, when the Legislature wishes to leave the imposition
of a period of parole ineligibility to the discretion of the sentencing judge, it
has generally done so in one of two ways. Under the first way, the Legislature
clearly indicates that the court may waive the parole disqualifier set forth in
the statute. See, e.g., N.J.S.A. 2C:35-7(b)(1) (“[T]he court may waive or
reduce the minimum term of parole ineligibility . . . .”). Alternatively, the
Legislature is silent as to the imposition of a minimum term and parole
ineligibility. In that case, nothing precludes the sentencing judge from
imposing a discretionary period of parole ineligibility if “the court is clearly
15
convinced that the aggravating factors substantially outweigh the mitigating
factors.”3 N.J.S.A. 2C:43-6(b).
We agree with the State that, because mandatory fixed periods of parole
ineligibility apply to the most dangerous offenders, the Legislature chose this
language -- “fixed minimum sentence . . . during which the defendant shall not
be eligible for parole” -- to serve as a bar to release, even intermittently,
during the period of parole ineligibility. See Carrigan, 428 N.J. Super. at 614
(“The strengthened penalty [of N.J.S.A. 2C:40-26] was legislatively prompted,
at least in part, by reports of fatal or serious accidents that had been caused by
recidivist offenders with multiple prior DWI violations, who nevertheless were
driving with a suspended license.”). Since N.J.S.A. 2C:40-26 includes such
language, no discretion is afforded to the sentencing judge, and an intermittent
sentence would violate the dictates of our Criminal Code.
Said another way, N.J.S.A. 2C:43-2(b) is its own list of mutually
exclusive sentencing options. Accordingly, N.J.S.A. 2C:43-2(b)(7) is not a
3
The aggravating factors include: the risk that the defendant will commit
another offense; the extent of the defendant’s prior criminal record; and the
need to deter the defendant and others from violating the law. N.J.S.A. 2C:44-
1(a). Those factors are to be balanced against the mitigating circumstances,
including that: the defendant’s conduct neither caused nor threatened serious
harm; the defendant has no prior criminal history; the defendant’s conduct was
the result of circumstances unlikely to recur; and the defendant’s character and
attitude indicate that he is unlikely to commit another offense. Id. § 1(b).
16
means by which to serve a sentence imposed under another provision; it is a
sentencing option in and of itself. As a result, an intermittent sentence is not
available where the Legislature has otherwise provided for the specific
sentence that an offender is to serve, such as we have in N.J.S.A. 2C:40-26.
Therefore, construing N.J.S.A. 2C:40-26 in the context of Title 2C’s
sentencing scheme, we conclude that the language of N.J.S.A. 2C:40-26(c)
manifests a legislative intent to bar intermittent sentences under N.J.S.A.
2C:43-2(b)(7). The legislative choice of very specific wording regarding the
custodial sentence to be imposed under N.J.S.A. 2C:40-26(c) does not permit
resort to an alternative, intermittent sentence available as a general sentencing
option under N.J.S.A. 2C:43-2(b)(7). N.J.S.A. 2C:40-26(c)’s wording mirrors
the language utilized in other mandatory sentencing statutes for the most
serious crimes.
A finding to the contrary could allow offenders sentenced under NERA,
the Graves Act, or for the most serious CDS offenses to serve their periods of
parole ineligibility on nights or weekends. The parties agree that allowing the
most dangerous offenders -- those guilty of crimes the Legislature has found
are the most serious -- to serve their sentences on nights or weekends is
illogical. It is a result the Legislature could not have intended.
17
What’s more, although -- as the Appellate Division concluded -- parole
and intermittent sentencing are distinct concepts, the prohibition of parole
necessarily dictates the prohibition of intermittent sentencing. To find
otherwise would create an “absurd result.” When the Legislature proscribes
parole, the offender cannot be released from custody. See N.J.A.C. 10A:71-
6.4 (outlining extensive conditions with which any offender granted parole
must comply). During an intermittent sentence, however, an offender is given
complete freedom during the time they are not incarcerated. Therefore,
allowing a person convicted under N.J.S.A. 2C:40-26 the increased freedom of
intermittent sentencing when the Legislature has simultaneously prohibited the
regulated release of parole for the fixed minimum period of time of 180 days
creates an illogical result that cannot be the intention of the Legislature. 4
Likewise, we reject the view advanced by defendants, the Public
Defender, and the Appellate Division that the Legislature’s omission of the
term “consecutive days” in N.J.S.A. 2C:40-26(c) evinces a legislative intent to
permit intermittent sentences. The authorities cited by the parties and the
panel that reference the term “consecutive days” are either outside the
Criminal Code or are clearly inapposite. See, e.g., N.J.S.A. 39:4-50(a);
4
It also bears mentioning that intermittent sentences undermine the deterrent
effect and public safety objective of a license suspension, which runs
consecutively to the term of imprisonment under N.J.S.A. 39:4-50(a).
18
N.J.S.A. 2A:4A-43(c)(1); see also N.J.S.A. 2C:7-2(a)(2) (using the term in
relation to school enrollment or employment in prescribing certain sex
offender registration requirements); N.J.S.A. 2C:46-2(a)(2) (governing
sanctions for noncompliance with court-imposed obligations); N.J.S.A. 2C:43-
8.1 (defining “seasonally leased premises”).
Accordingly, we overrule the sentencing court’s determination, affirmed
by the Appellate Division, that individuals convicted under N.J.S.A. 2C:40-26
may serve their sentences on nights or weekends pursuant to N.J.S.A. 2C:43-
2(b)(7). Indeed, the Legislature has provided otherwise. We therefore need
not address the Appellate Division’s mandate that defendants serve their
intermittent sentences in twenty-four-hour continuous periods. Finally,
because N.J.S.A. 2C:40-26(c)’s language in the context of Title 2C’s
sentencing regime is clear, we reach our conclusion without resort to extrinsic
aids and need not consider the rule of lenity.
IV.
For the reasons set forth above, we reverse the judgment of the
Appellate Division and remand for resentencing as to Colon. As to Lowers,
Nolan, and Swiderski, we remand with leave to file motions to vacate their
guilty pleas.
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CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.
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