STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4596-17T3)
When originally sentenced, defendant was found to be a persistent offender eligible for an extended term under N.J.S.A. 2C:44-3(a), even though his last prior conviction occurred more than ten years earlier; the sentencing judge determined that the probationary term imposed on that earlier conviction constituted "confinement" and therefore reasoned that defendant's "last release from confinement" occurred within ten years. We rejected the holding that probation may be equated with confinement and remanded for resentencing. State v. Clarity, 454 N.J. Super. 603 (App. Div. 2018). At the subsequent sentencing proceedings, the State came forward with new information purporting to show defendant violated the terms of the earlier probationary sentence and was imprisoned for thirty months as a result, so that his last release from confinement occurred within ten years. When confronted with this information at resentencing, defense counsel conceded defendant was eligible to be sentenced to an extended term as a persistent offender.
