On appeal from Superior Court of New Jersey, Law Division, Hudson County, I-02-04-0877.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2006
Before Judges Skillman, Axelrad and Payne.
Defendant Abdul Webster has appealed from his sentence of six years in custody with an eighty-five percent period of parole ineligibility, imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, following his plea of guilty to second-degree aggravated assault.
The Parole Board interprets NERA to preclude the application of commutation and work credits to the "front end" of a sentence subject to NERA so as to lessen the period of parole ineligibility, and instead recognizes those credits as applicable only to the remaining base term or "back end" of a sentence. As the result of the operation of statutory sentence maximums, which effectively require a period of custody that is less than the custodial term stated by the sentencing court, the credits thus become of little or no substantive use to an inmate, since the end of the period of parole ineligibility imposed under NERA will usually be coterminous with the maximum sentence pursuant to statute.
Defendant argues that the Parole Board's interpretation of NERA results in a denial of the benefit of credits to which the Parole Act entitles him. He argues that this interpretation is not required by NERA, which does not prohibit the application of commutation and work credits to reduce a period of parole ineligibility imposed pursuant to that statute, nor is it required by the relevant provision of the Parole Act, N.J.S.A. 30:4-123.51a. Defendant claims that the interpretation is thus contrary to law, and as a result, he is entitled either to the elimination of his period of parole ineligibility under NERA or to a declaration that commutation and work credits are applicable to reduce his period of parole ineligibility.
Defendant's challenge to the manner in which his parole eligibility date is calculated was not raised before the Parole Board, as administrative law requires. Nonetheless, because the Parole Board has filed an answering brief addressing the issues that defendant has raised, we will consider the substance of defendant's challenge in order to again clarify the interrelationship between NERA and the Parole Act and their application in sentencing. In doing so, we reject defendant's position, finding the actions of the Parole Board consonant with the provisions of both the Parole Act and NERA.
The Parole Act provides, in N.J.S.A. 30:4-140, for an award of progressive time or commutation credits for continuous orderly behavior in custody and, in N.J.S.A. 30:4-92, for an award of work credits as compensation for an inmate's employment in "productive occupations" during that period of custody.
N.J.S.A. 30:4-123.51a specifies that an inmate shall become primarily eligible for parole after serving any judicial or statutory mandatory minimum term or, in the absence of a parole disqualifier, one-third of the sentence imposed. Ibid. The statute further permits commutation and work credits to reduce that one-third term. Ibid. The statute provides in relevant part:
a. Each adult inmate sentenced to . . . a specific term of years at the State prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or one-third of the sentence imposed where no mandatory minimum term has been imposed less commutation time for good behavior pursuant to . . . R.S. 30:4-140 and credits for diligent application to work and other institutional assignments pursuant to . . .
However, the statute precludes the use of such credits to reduce any judicial or statutory ...