Submitted February 3, 2015.
Approved for Publication May 14, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-03-0915.
Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant ( Jason Magid, Assistant Prosecutor, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for respondent ( Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).
Before REISNER, KOBLITZ and HIGBEE,
[440 N.J.Super. 527] OPINION
[440 N.J.Super. 528] REISNER, P.J.A.D.
This appeal raises the issue whether a defendant convicted of violating N.J.S.A. 39:3-40(e) and N.J.S.A. 39:6B-2 may be permitted to serve her sentence in an electronic monitoring home detention program in lieu of the county jail. Unlike the sentencing statute at issue in State v. French, 437 N.J.Super. 333, 335, 98 A.3d 603 (App.Div.2014), certif. denied, 220 N.J. 575, 108 A.3d 635 (2015), and unlike other provisions in Title 39, N.J.S.A. 39:3-40(e) and N.J.S.A. 39:6B-2 do not unambiguously require that a convicted defendant serve the required imprisonment term " without parole" or " in the county jail." Consequently, applying well established principles of statutory construction, including the rule of lenity, we conclude that the trial court had discretion to permit defendant to serve her sentence in a home electronic monitoring program rather than in the county jail. Accordingly, we affirm the sentence imposed. We remand this matter for the limited purpose of vacating the stay of sentence entered by the trial court.
While driving during a period of license suspension, defendant was involved in a motor vehicle accident in which two pedestrians were injured. Pursuant to a negotiated plea agreement, defendant pled guilty to one count of third-degree endangering
an [440 N.J.Super. 529] injured victim, N.J.S.A. 2C:12-1.2, for which the State agreed to recommend two years of probation. At a second plea hearing, on January 24, 2014, she also pled guilty to two motor vehicle offenses, driving while her license was suspended, N.J.S.A. 39:3-40, and driving without insurance, N.J.S.A. 39:6B-2.
At the initial plea hearing on December 11, 2013, the prosecutor recited that the State would recommend an aggregate sentence of " 90 days" for the violation of N.J.S.A. 39:3-40(b) and (e). The prosecutor told the judge that " [t]he State would object to programs," i.e., alternatives to serving the sentence within the county jail. The prosecutor also stated that defendant would be subject to a fourteen-day jail term for driving without insurance, which could be imposed concurrent to the sentence for being involved in an accident during a period of license suspension. The judge reminded both counsel that in addition to the jail terms already discussed, a second conviction for driving while suspended, N.J.S.A. 39:3-40(b), required a sentence of between one and five days which " must be served in the county jail."
The judge explained on the record that he interpreted the several provisions of N.J.S.A. 39:3-40 as requiring imprisonment in the county jail when a particular section specified that the sentence must be served " in the county jail," but as allowing " programs such as house arrest or the CSLS program . . . when the term of incarceration that is required is characterized generally as imprisonment or in some other general way." 
At the sentencing hearing, defense counsel asked the judge to permit defendant to serve her sentence in an alternative program, because defendant was employed and supporting her son, and was also living with and caring for her elderly mother. Defendant also agreed to pay restitution to the two injured pedestrians. After finding that the mitigating factors outweighed the aggravating [440 N.J.Super. 530] factors, the judge sentenced defendant to two years of probation for leaving an injured victim. For the motor vehicle violations, the judge sentenced defendant to five days in the county jail, which was subsumed by five days of jail credit, plus eighty-five days " imprisonment" as to which " programs" would be " permissible." That is, defendant could serve the eighty-five days in home confinement with electronic monitoring.
Our review of the trial court's statutory interpretation is de novo. State v. Vargas, 213 N.J. 301, 327, 63 A.3d 175 (2013); State v. Gandhi, 201 N.J. 161, 176, 989 A.2d 256 (2010). In construing the statutes at issue, we consider their plain language, and if we find the language ambiguous we consider the legislative history and purpose of the enactments. Gandhi, supra, ...