A specific term of imprisonment under N.J.S.A. 2C:43-2b(3) is distinct from imprisonment as a condition of probation under N.J.S.A. 2C:43-2b(2). In the latter case, a defendant convicted of a crime may be sentenced to a term of imprisonment not to exceed 364 days as a condition of probation (90 days in the case of a disorderly persons offense). All sentences of one year or longer (except in the case of offenders 26 years of age or less at the time of sentencing, pursuant to N.J.S.A. 2C:43-5) generally will be served in a state correctional facility pursuant to N.J.S.A. 2 C:43-10. State v. O’Connor, 105 N.J. 399, 420 (1987); State v. Hartye, 105 N.J. 411, 420 (1987). A person sentenced to a term of imprisonment not exceeding 18 months may be committed to the county penitentiary or workhouse, if the county has such a facility N.J.S.A. 2C:43-10b. A sentence of less than one year will result in incarceration in the county jail, county workhouse or county penitentiary. N.J.S.A. 2C:43-10c. A defendant sentenced to a jail term in excess of 6 months cannot be compelled to serve that time in a county jail but may serve that time in a county workhouse or penitentiary. N.J.S.A. 2C:43-10c. Note further that a defendant is entitled to credit on the term of a custodial sentence for any time spent by the defendant in a jail or state hospital between arrest and sentence. R. 3:21-8.
Defense attorneys should seek a recommendation (albeit non-binding) from the judge to the Department of Corrections about the place of incarceration. Considerations such as proximity to family members, the prison population and degree of overcrowding and the physical conditions of the facilities, ought to be taken into account in seeking the most appropriate place of incarceration.
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