State v. Rodriguez

• Decision Date: 21 May 2019
• Docket Number: 081046,A-80 September Term 2017
• Citation: 238 N.J. 105,207 A.3d 1269
• Parties: 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. State of New Jersey, Plaintiff-Appellant, v. Stephen E. Nolan, Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. Courtney D. Swiderski, Defendant-Respondent.
• Court: New Jersey Supreme Court

238 N.J. 105

207 A.3d 1269

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.

State of New Jersey, Plaintiff-Appellant,

v.Stephen E. Nolan, Defendant-Respondent.

State of New Jersey, Plaintiff-Appellant,

v.Courtney D. Swiderski, Defendant-Respondent.

A-80 September Term 2017

081046

Supreme Court of New Jersey.

Argued March 12, 2019

Decided 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).

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, Trenton, 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 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, 106 A.3d 1265 (App. Div. 2015), and State v. French, 437 N.J. Super. 333, 334, 98 A.3d 603 (App. Div. 2014) -- opinions that declared 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, 114 A.3d 1016 (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. 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.

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, 185 A.3d 221 (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, 185 A.3d 221. Additionally, while parole "may reduce real time in custody for a flat sentence," id. at 225, 185 A.3d 221, 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, 564 A.2d 138 (Law Div. 1989) ). In that regard, the panel found that intermittent sentences are consistent with both French and Harris. Id. at 229-30, 185 A.3d 221.

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 consecutively. Id. at 226, 185 A.3d 221. 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, 185 A.3d 221. 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, 185 A.3d 221. 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, 185 A.3d 221.

We granted the State's petition for certification.²

234 N.J. 314, 190 A.3d 1054 (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, 892 A.2d 688 (App. Div. 2006), and Meyer v. State Parole Board, 345 N.J. Super. 424, 430, 785 A.2d 465 (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 allows for waiver of mandatory periods of parole ineligibility for certain offenses.

According to defe...