[186 NJSuper Page 16] This case presents the important question of whether the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., affects prior law prohibiting the imposition of an indeterminate term with a
maximum below five years, when defendant is committed to the Youth Correctional Institution Complex for an offense carrying a statutory maximum of five years or more. I conclude that the indeterminate term cannot be limited to less than five years when the statutory maximum for the offense is five years or greater.*fn1
Counsel presented the court with a negotiated plea recommendation providing that if defendant received a custodial term, it would be indeterminate to the Youth Correctional Institution Complex limited to a four-year maximum. Four years is the presumptive term, if a custodial term is imposed, on a third degree crime such as the crime to which defendant's plea was offered. See N.J.S.A. 2C:43-6(a)(3), 2C:44-1(f) (ordinary term). The court rejected the recommendation and the parties revised their recommendation to avoid the limitation on the maximum indeterminate term. The plea was then accepted pursuant to R. 3:9-3. However, this opinion is being filed to formalize the reasons for the prior rejection.
N.J.S.A. 2C:43-5 provides:
Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex in accordance with R. S. 30-4-146 et seq. in the case of men, and to the Correctional Institution for Women in accordance with R. S. 30:4-153 et seq. in the case of women instead of the sentences otherwise authorized by the code.
N.J.S.A. 30:4-148 provides:
The courts in sentencing pursuant to N.J.S.A. 2C:43-5 shall not fix or limit the duration of sentence, but the time which any person shall serve in confinement or on parole shall not in any case exceed 5 years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than 5 years; provided, however, that the court, in its discretion, for good cause shown, may impose a sentence greater than 5 years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed. [Emphasis supplied]
As a result, an indeterminate sentence contains an automatic five-year maximum unless the statutory maximum is less than five years, in which event it shall control, or unless the statutory maximum is above five years and the indeterminate maximum is raised, for good cause shown, subject to the statutory maximum. State v. Prewitt, 127 N.J. Super. 560, 565 (App.Div.1974). Clearly, if no exception applies, the maximum is controlled by the statute and should not be specified in terms of years within the sentence. State v. Lavender, 113 N.J. Super. 576 (App.Div.1971). Moreover, "courts have no power to reduce the statutorily understood maximums on an indeterminate term." State v. Prewitt, supra 127 N.J. Super. at 565; State v. Nicholson, 69 N.J. Super. 230 (App.Div.1961).
Despite the concept of presumptive terms, nothing in the Code of Criminal Justice changed this result. See N.J.S.A. 2C:1-1(e). The Parole Act of 1979 essentially acknowledged that fact by providing for primary parole eligibility on indeterminate sentences based on the presumptive term. With respect to the schedule of parole eligibility to be established for defendants sentenced as youthful offenders, N.J.S.A. 30:4-123.51(d) provides, in part:
In no case shall the board schedule require that the primary parole eligibility date for a young adult offender be greater than [the] primary parole eligibility date required pursuant to [ N.J.S.A. 30:4-123.51] for the presumptive ...