On appeal from Superior Court of New Jersey, Law Division, Warren County.
Fritz, Brody and Baime. The opinion of the court was delivered by Brody, J.A.D.
Pursuant to N.J.S.A. 2C:44-1(f)(2), the State appeals a probationary sentence imposed after defendant was convicted by his negotiated plea of a second-degree crime. The judge attached a 90-day county jail term to be served as a condition of a five-year term of probation. We agree with the State's contention that the jail term does not satisfy the statutory presumption of imprisonment for a second-degree crime "unless, having regard to the character and condition of the defendant, [the court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d). We therefore vacate the sentence and remand for further proceedings.
In accordance with a plea agreement, defendant pled guilty to a sexual assault upon his two-year-old cousin. He admitted that he had the girl touch his penis for his sexual gratification. Defendant was 27 years old at the time of the offense. Defendant's conduct is a second-degree crime because of the victim's youth and the disparity in their ages. N.J.S.A. 2C:14-2(b). The agreement further provided that the State would recommend, pursuant to N.J.S.A. 2C:44-1(f)(2), that defendant be sentenced "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted," and that defendant's
"maximum exposure" be five years "jail time" with no parole disqualifier. The agreement made no reference to the presumption of imprisonment, which applies because of defendant's conviction of a second-degree crime even though the State agreed that he should be sentenced to a term appropriate to only a third-degree crime. See State v. Rodriguez, 179 N.J. Super. 129, 134-135 (App.Div.1981).
The trial judge sentenced in accordance with the agreement. He found that while defendant did not qualify for relief from the presumption of imprisonment, the presumption was satisfied by imposition of the 90-day jail term to be served as a condition of probation. The correctness of that ruling is the sole issue raised on this appeal. The State contends that the presumption may only be satisfied by a term of imprisonment within the range of three to five years, with a presumption of four years, as provided in the Code for a third-degree crime. N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:44-1(f)(1). The trial judge's view prevailed in State v. Jones, 197 N.J. Super. 604, 608-609 (App.Div.1984). On the other hand, the State's view prevailed in State v. Whidby, 204 N.J. Super. 312 (App.Div.1985).
The difficulty is caused by the Code's use of the word "imprisonment" when defining the two forms of custodial sentence authorized by N.J.S.A. 2C:43-2(b)(2) and (3). A court may sentence a defendant under those sections
(2) To be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or
(3) To imprisonment for a term authorized by sections 2C:11-3, 2C:43-5, 6, 7 and 8 or 2C:44-5;
In the case of a straight sentence of imprisonment, the term must lie within statutory sentencing ranges and is subject to statutory guidelines appropriate to the offense and the offender. In the case of a so-called split sentence, however, the term of imprisonment to be served as a condition of probation may
be no more than 364 days subject to the sound discretion of the ...