October 16, 2019
appeal from the Superior Court of New Jersey, Law Division,
Somerset County, Indictment No. 13-10-0621.
Margaret Ruth McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Tamar Yael Lerer, Assistant Deputy Public
Defender, of counsel and on the briefs).
Henry Heinzel, Assistant Prosecutor, argued the cause for
respondent (Michael H. Robertson, Somerset County Prosecutor,
attorney; Paul Henry Heinzel, of counsel and on the brief).
Judges Fisher, Accurso and Gilson.
appeal, we again consider the State's pursuit of an
extended term sentence based on its claim that defendant is a
persistent offender under N.J.S.A. 2C:44-3(a). In a prior
appeal, we reversed and remanded for resentencing because the
sentencing judge erroneously held that defendant was
"last confine[d]" within ten years of the offense
by equating "probation" with
"confinement." State v. Clarity, 454
N.J.Super. 603, 611 (App. Div. 2018). Following our remand,
the State offered evidence - not previously presented - of
other incarcerations to demonstrate defendant was confined
within ten years of the crime for which he was sentenced.
Based on defendant's concession that this new information
demonstrated he was eligible for an extended term under
N.J.S.A. 2C:44-3(a), the judge imposed the same extended term
as before. In appealing this new judgment of conviction,
defendant argues the State's information about the
"last release from confinement" was inadmissible
and could not support a finding that he is a persistent
offender. Because of defendant's concession at
sentencing, we affirm.
start with N.J.S.A. 2C:44-3(a), which permits imposition of a
discretionary extended term when a defendant is found to be a
persistent offender, which, as relevant here, is an offender
whose last of two prior crimes was committed or when the
offender's "last release from confinement" -
"whichever is later" - occurred within ten years of
the crime for which sentence was imposed.
prior appeal, we determined that the trial judge mistakenly
sentenced defendant to an extended term on a crime committed
here on August 17 and 18, 2013,  when it was established that
defendant's last prior crime occurred in Florida on July
26, 2003, slightly more than ten years before. Defendant was
sentenced in Florida on the July 2003 offense to a three-year
probationary term that did not include incarceration;
notwithstanding, the sentencing judge held that being on
probation is the equivalent of being "confined" and
concluded defendant's "last release from
confinement" - the date on which the probationary term
ended - must have occurred within ten years. We rejected the
judge's interpretation of "confinement" and
remanded for resentencing. Clarity, 454 N.J.Super.
deciding the first appeal, we also said that if "all
that was before us" was the meaning of
"confinement" and the significance of the
probationary term, we would have "simply reverse[d] and
remand[ed] for resentencing without application of N.J.S.A.
2C:44-3(a)." Id. at 612. But, as we observed in
the third section of our prior opinion, the State had argued
"and provided some evidence" to suggest defendant
was "briefly detained in Florida in 2006" for
having violated a condition of the probationary term.
Ibid While we questioned whether a brief detention
in such circumstances would qualify as
"confinement," we determined the best course -
because facts about this 2006 incident "were not
presented to the sentencing judge," ibid.,
although mentioned in the presentence report, id at
612 n.8, and because these allegations were not then relied
on by the sentencing judge - was to remand for resentencing
and, if necessary, "further development" of the
State's claim about the brief 2006 detention. Id
resentencing, the State provided, as we allowed, additional
information about defendant's 2006 Florida arrest. That
information suggested defendant was then arrested for a
violation of probation and was detained for eighteen days
before the judge imposed a six-month extension of the
preexisting probationary term. The State also provided the
sentencing judge with information about defendant's later
scrapes with the Florida criminal justice system. The State
referred to defendant's arrests in Florida:
• on March 1, 2007, for a violation of probation for
which, on June 11, 2007, he was sentenced to a thirty-month
prison term; defendant was released from prison on April 26,
• on September 10, 2010, for solicitation of
prostitution for which, on October 4, 2010, he was sentenced
to a twenty-five-day jail sentence.
information about a second violation of probation in 2007 and
a prostitution solicitation conviction in 2010 was never
previously presented to the sentencing judge, never asserted
by the State as a ground for finding defendant to be a
persistent offender in its 2016 motion for an extended term,
and never presented to us during defendant's first
appeal. The submission of information about the 2007 and 2010
incidents also arguably exceeded the scope of the mandate
expressed in our earlier opinion. ...