On certification to the Superior Court, Appellate Division, whose opinion is reported at 335 N.J. Super. 267 (2000).
The opinion of the court was delivered by: Per Curiam
CONCURRING OPINION BY Justices Stein, Coleman and Zazzali
DISSENTING OPINION BY Chief Justice Poritz and Justices Long and LaVecchia
The members of the Court being equally divided, the judgment of the Appellate Division, reported at 335 N.J. Super. 267 (2000), is affirmed.
JUSTICES STEIN, COLEMAN, and ZAZZALI concur in the judgment of the Court. CHIEF JUSTICE PORITZ and JUSTICES LONG and LaVECCHIA have filed a separate dissenting opinion. JUSTICE VERNIERO did not participate.
STEIN, COLEMAN, and ZAZZALI, JJ., concurring
We would affirm the judgment of the Appellate Division based on our concurrence with that court's conclusion that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, does not apply to murder. State v. Manzie, 335 N.J. Super. 267, 278 (2000). We add these additional observations to amplify our agreement with the Appellate Division's determination that "if the Legislature had intended NERA to apply to murder, it would have done so expressly and by amending the murder statute." Id. at 276.
In pertinent part the murder statute provides as follows:
Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in subsection c. of this section, by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole. [N.J.S.A. 2C:11-3b(1).]
The Appellate Division carefully explained the primary inconsistency between NERA and the murder statute:
Murder is the only crime for which life imprisonment is an available ordinary sentence. See [State v.] Serrone, supra, 95 N.J. [23,] 25 [(1983)]. But, NERA does not define what would constitute 85% of life for the purpose of applying NERA's parole ineligibility period. . . . The absence of such a definition suggests that the Legislature did not intend that NERA would apply to murder. [Manzie, supra, 335 N.J. Super. at 275-76.]
The Attorney General addressed that inconsistency in his Appellate Division brief. Although acknowledging that neither NERA nor the murder statute informs defendants of the penal consequences of applying NERA to a life sentence for murder, the Attorney General referred to paragraph L of the "Attorney General Directive for Enforcing the ?No Early Release' Act," which provides as follows:
L. Effect of Life Sentence
Where a defendant subject to the No Early Release Act is sentenced to a life term, other than one that provides for life imprisonment without possibility of parole, see e.g., N.J.S.A. 2C:11-3b(2) and 2C:43-7.1, the prosecutor in the course of plea negotiations and litigation shall proceed as if the defendant were to be sentenced to a custodial term of 75 years and must thus remain ineligible for parole for a term of 63.75 years (85% of 75 years). [Attorney General Directive for Enforcing the "No Early Release" Act 12 (April 24, 1998).]
The Attorney General supports his assertion that a life sentence for murder that was subject to NERA equates to 63.75 years without parole by noting:
This calculation is derived from The Parole Book, A Handbook on Parole Procedures for Adult and Young Adult Inmates (Third Ed. 1996) [Parole Book], published by the New Jersey State Parole Board, which explains that parole ineligibility terms (other than mandatory minimum terms) are equal to one- third of the maximum sentence imposed under the Code of Criminal Justice. In the case of a life sentence with no mandatory minimum term, parole ...