1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Paulino Njango (A-79-19) (084286)

Argued March 16, 2021 -- Reargued April 26, 2021 -- Decided August 3, 2021

ALBIN, J., writing for a unanimous Court.

The issue in this case is whether defendant Paulino Njango, whose time in prison 

exceeded the permissible custodial term authorized by his sentence, is entitled to have the 

excess prison time he served -- known as service credits -- reduce the period of parole 

supervision he must serve under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In 2007, in accordance with a plea agreement with the State, Njango pled guilty to 

certain counts in a 2006 indictment and a 2007 indictment. In November 2007, the trial 

court imposed concurrent sentences on all of the charges to which Njango pled guilty in 

the two indictments. Njango’s overall sentence was an eighteen-year NERA term --

meaning that he was parole-ineligible until he completed eighty-five percent of that 

eighteen-year term -- followed by a five-year period of parole supervision.

Njango filed a petition for post-conviction relief (PCR), which was denied. He 

also filed a motion to correct an illegal sentence, in which he advanced the surprising 

argument that the trial court should have imposed consecutive sentences rather than 

concurrent sentences under N.J.S.A. 2C:44-5(h). The trial court found the statute 

inapplicable in light of the plea agreement, but the Appellate Division reversed because 

the sentencing court had not made the “serious injustice” finding necessary to justify its 

decision not to impose consecutive sentences for the offenses defendant committed while

released on bail.

The State and Njango entered into a superseding plea agreement in August 2015. 

In accordance with the new agreement, Njango pled guilty to certain offenses from both 

the 2006 and 2007 indictments. The court sentenced Njango on the 2006 indictment to 

an overall ten-year NERA term (subject to a five-year period of parole supervision) to run 

consecutive to the sentences imposed on the 2007 indictment. On the 2007 indictment, 

the court imposed an overall eight-year NERA term (subject to a three-year period of 

parole supervision). Njango’s aggregate sentence was an eighteen-year term, with a 

fifteen-year, three-month, and eighteen-day parole disqualifier pursuant to NERA. He 

also was subject to an eight-year period of parole supervision after completing the 

custodial portion of his sentence. See N.J.S.A. 2C:43-7.2(c).
2

The court rejected Njango’s request to credit him for the time served on each 

offense during the period the sentences on those offenses ran concurrently. Instead, the 

court applied Njango’s total 2,692 days (approximately seven-and-a-half years) of prior 

service credits to the front-end of his aggregate eighteen-year sentence. In a February 

2017 decision, the Appellate Division reversed, determining that Njango should be 

credited for the time he simultaneously served on the two indictments. The Court denied 

the State’s petition for certification challenging that decision. On remand, the trial court 

awarded Njango 2,692 days of service credits on both indictments. The next day, Njango 

was released from prison.

Njango filed a PCR petition, claiming that had he received the proper number of 

service credits at the time of his second sentencing, he should have been immediately 

released from prison. He maintained that, as a result of the second sentencing court’s 

error, he served an additional one year and seven months in prison. As a remedy, he 

sought to have the period of parole supervision reduced by the excess time he served in 

prison or, alternatively, to withdraw his plea. The PCR court denied the motion and the 

Appellate Division affirmed, holding “that mandatory periods of parole supervision 

imposed under NERA cannot be reduced by prior service credits, even where the 

defendant was imprisoned longer than he should have been due to a failure to properly 

award such credit.” 463 N.J. Super. 1, 10 (App. Div. 2020).

The Court granted certification. 243 N.J. 264 (2020).

HELD: The mandatory period of parole supervision imposed under NERA is part of a 

unitary sentence that is penal in nature. The State has kept Njango in prison for more 

than a year beyond his release date. Without credit for the excess prison time, Njango 

would serve more time in the custody of the Department of Corrections than authorized 

by his sentence. Under the fundamental fairness doctrine -- an integral part of the due 

process guarantee of the New Jersey Constitution -- the excess time Njango erroneously 

served in prison must be credited to reduce the period of his parole supervision.

1. The Court does not reach the question, addressed on reargument, of whether defendant 

is entitled to service credits on each count for which he was sentenced, or whether the 

principles of State v. C.H., 228 N.J. 111 (2017), apply. In C.H., the Court determined 

that, pursuant to Rule 3:21-8, the defendant was not entitled to the double counting of 

pre-sentence jail credits “for time simultaneously spent in custody” on charges in two 

separate indictments for which he received consecutive sentences. Id. at 118, 121. The 

Court’s denial of certification as to the 2017 Appellate Division decision should not be 

read as a determination or commentary on the merits of that decision. See State v. 

Hodge, 105 N.J. 518, 519 (1986). Nevertheless, Njango had an expectation of finality in 

that prior determination, and the Court thus confines its discussion to whether the excess 

time Njango served in prison can offset the time he must serve under parole supervision 

pursuant to NERA. The Court reviews the parties’ arguments on that issue. (pp. 11-15)
3

2. Based on the Appellate Division’s 2017 decision, Njango served at least one year and 

seven months in prison beyond his release date. From the State’s public-safety 

perspective, one year and seven months of prison surely is the equivalent of the same 

period under parole supervision. A defendant is in the custody of the Department of 

Corrections when serving a term of imprisonment under NERA. And, while serving a 

NERA period of parole supervision, the defendant remains “in the legal custody of the 

Commissioner of the Department of Corrections, and shall be supervised by the Division 

of Parole of the State Parole Board as if on parole.” N.J.S.A. 30:4-123.51b(a). Under 

New Jersey jurisprudence, parole is “in legal effect imprisonment” and therefore 

punishment. Riley v. State Parole Bd., 219 N.J. 270, 288 (2014). Accordingly, if Njango 

does not receive service credits for the excess time served in prison, he will remain in the 

custody of the Department of Corrections for a year and seven months beyond the 

maximum sentence imposed by the trial court. (pp. 15-18)

3. The Court has “construed the expansive language of Article I, Paragraph 1 [of the 

New Jersey Constitution] to embrace the fundamental guarantee of due process.” 

Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008). An “integral part” of that 

guarantee of due process is the doctrine of fundamental fairness, which “serves to protect 

citizens generally against unjust and arbitrary governmental action, and specifically 

against government procedures that tend to operate arbitrarily.” Doe v. Poritz, 142 N.J. 

1, 108 (1995) (emphasis omitted). (pp. 18-20)

4. No persuasive reason has been advanced to explain why Njango’s serving an extra one 

year and seven months in prison -- when he should have been serving that time on parole 

supervision -- should not be credited towards his parole supervision period. The 

objective of parole supervision -- to protect the public from the risk from violent 

offenders -- was certainly satisfied when he was mistakenly or erroneously incarcerated 

beyond the prescribed time for his release. If Njango were incarcerated for a violation of 

his parole supervision, he would be entitled to use his excess service credits to reduce his 

custodial time and therefore the overall period of his parole supervision. That a 

defendant who violates parole can benefit from excess service credits while a defendant 

who complies with parole cannot is an absurd result that the Legislature could not have 

had in mind. The fundamental fairness doctrine is intended to provide a remedy for 

inequitable and arbitrary decisionmaking. See ibid. Here, notions of fundamental 

fairness compel conforming NERA to the State Constitution in a way that the Legislature 

would likely have intended. Njango’s eight-year period of parole supervision must be 

reduced by the excess time he served in prison (pp. 20-22)

REVERSED and REMANDED to the Parole Board.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE 

ALBIN’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-79 September Term 2019

084286

State of New Jersey,

Plaintiff-Respondent,

v.

Paulino Njango, a/k/a

Paulino Niango, and 

Paulino Ernesto Njango,

Defendant-Appellant.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

463 N.J. Super. 1 (App. Div. 2020).

Argued

March 16, 2021

Reargued

April 26, 2021

Decided

August 3, 2021

Cody T. Mason, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Cody T. Mason, of counsel and on 

the briefs).

Barbara A. Rosenkrans, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause for 

respondent (Theodore N. Stephens, II, Acting Essex 

County Prosecutor, attorney; Barbara A. Rosenkrans, of 

counsel and on the briefs, and Frank J. Ducoat, Special 

Deputy Attorney General/Acting Assistant Prosecutor, on 

the briefs).
2

Jennifer E. Kmieciak, Deputy Attorney General, argued 

the cause for amicus curiae Attorney General of New 

Jersey (Andrew J. Bruck, Acting Attorney General,

attorney; Jennifer E. Kmieciak, of counsel and on the 

briefs).

JUSTICE ALBIN delivered the opinion of the Court.

The issue in this case is whether defendant Paulino Njango, whose time

in prison exceeded the permissible custodial term authorized by his sentence, 

is entitled to have the excess prison time he served -- known as service credits 

-- reduce the period of parole supervision he must serve under the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2.

The post-conviction relief court found that the excess time Njango 

served in custody was “unfortunate” but could not “be given back.” The 

Appellate Division affirmed, determining that the period of Njango’s NERA 

parole supervision could not be reduced, even though “[Njango] was 

imprisoned longer than he should have been due to a failure to properly award” 

him prior service credits. State v. Njango, 463 N.J. Super. 1, 10 (App. Div. 

2020).

We now reverse. The mandatory period of parole supervision imposed 

under NERA is part of a unitary sentence that is penal in nature. Njango was 

sentenced to an aggregate eighteen-year custodial term and, upon his release 
3

from prison, ordered to serve an aggregate eight-year period of parole 

supervision. During the entirety of Njango’s prison sentence and his period of 

parole supervision, he has been in the custody of the Department of 

Corrections. The State has kept Njango in prison for more than a year beyond 

his release date. Without credit for the excess prison time, Njango would

serve more time in the custody of the Department of Corrections than 

authorized by his sentence.

We do not agree that relief cannot be granted to Njango. The 

fundamental fairness doctrine is an integral part of the due process guarantee

of Article I, Paragraph 1 of the New Jersey Constitution, which protects 

against arbitrary and unjust government action. See Doe v. Poritz, 142 N.J. 1, 

108 (1995). We hold that the excess time that Njango erroneously served in 

prison must be credited to reduce the period of his parole supervision.

We remand to the New Jersey Parole Board for a calculation of the 

excess time Njango served in prison and a credit toward his period of parole 

supervision.

I.

A.

We begin by recounting the pertinent parts of the strange and tortuous 

procedural path this case has taken to reach this Court.
4

On September 24, 2007, in accordance with a plea agreement with the 

State, Njango pled guilty to certain counts in two separate indictments, which

we will call the 2006 and 2007 indictments. In the 2006 indictment, Njango 

pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree 

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree 

burglary, N.J.S.A. 2C:18-2; and fourth-degree unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(d). Those charges relate to crimes Njango 

committed against his ex-mother-in-law in June 2006.

In the 2007 indictment, Njango pled guilty to first-degree attempted 

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree terroristic 

threats, N.J.S.A. 2C:12-3(a). Those charges relate to crimes Njango

committed against his ex-wife in May 2007 while he was released on bail for 

the charges in the 2006 indictment.

On November 30, 2007, the trial court imposed concurrent sentences on 

all of the charges to which Njango pled guilty in the two indictments. Njango 

was sentenced on the attempted murder charges in the two indictments and on 

the kidnapping charge in the 2006 indictment to concurrent eighteen-year 

terms of imprisonment, subject to NERA, which rendered Njango paroleineligible until he completed eighty-five percent of that sentence. As part of 

--
5

that NERA sentence, the court “ordered [Njango] to serve a 5 year term of 

parole supervision which term shall begin as soon as defendant completes the 

sentence of incarceration.” See N.J.S.A. 2C:43-7.2(c).

In addition, the court imposed an eighteen-month term for unlawful 

possession of a weapon and merged the burglary charge on the 2006 

indictment and an eighteen-month term for unlawful possession of a weapon 

and a five-year term for terroristic threats on the 2007 indictment. Njango was 

also ordered to pay fines and penalties, and all remaining charges in the two 

indictments were dismissed. Njango’s overall sentence was an eighteen-year 

NERA term with a five-year period of parole supervision.

B.

Njango filed a petition for post-conviction relief (PCR), claiming that he 

was “under the influence of prescription medication at the time of the plea” 

and ineffectively assisted by counsel. His petition was ultimately denied.

While that PCR petition was pending, Njango filed a motion to correct 

an illegal sentence and advanced the surprising argument that the trial court 

should have imposed consecutive sentences rather than concurrent sentences 

under N.J.S.A. 2C:44-5(h). That statute provides that when a defendant 

commits an offense while released on bail for a prior offense, sentences of 

imprisonment for the offenses “shall run consecutively . . . unless the court . . . 

---
6

finds that imposition of consecutive sentences would be a serious injustice 

which overrides the need to deter such conduct by others.” N.J.S.A. 2C:44-

5(h).

The trial court found the statute inapplicable because Njango’s sentence 

was imposed pursuant to a plea agreement, but the Appellate Division reversed 

because the sentencing court had not made the “serious injustice” finding 

necessary to justify concurrent terms of imprisonment. The Appellate Division 

remanded to the sentencing court either to justify the imposition of concurrent 

sentences or to vacate the plea agreement and reinstate the charges.

The trial court never addressed the remand issue because the State and 

Njango entered into a superseding plea agreement in August 2015. In 

accordance with the new agreement, Njango pled guilty to the first-degree

attempted murder, second-degree burglary, and fourth-degree unlawful

possession of a weapon charges in the 2006 indictment, and to the seconddegree aggravated assault, N.J.S.A. 2C:12-1(b)(1), fourth-degree unlawful

possession of a weapon, and third-degree terroristic threats charges in the 2007 

indictment. The court sentenced Njango on the 2006 indictment to a ten-year

NERA term for attempted murder (subject to a five-year period of parole 

supervision), a concurrent ten-year term for burglary, and to a concurrent 

eighteen-month term for unlawful possession of a weapon all to run 
7

consecutive to the sentences imposed on the 2007 indictment. On the 2007 

indictment, the court imposed an eight-year NERA term for aggravated assault

(subject to a three-year period of parole supervision), a concurrent term of 

eighteen months for unlawful possession of a weapon, and a concurrent term 

of five years for terroristic threats. Fines and penalties were imposed, and all 

remaining charges were dismissed.

Njango’s aggregate sentence was an eighteen-year term, with a fifteenyear, three-month, and eighteen-day parole disqualifier pursuant to NERA. He 

also was subject to an eight-year period of parole supervision after completing 

the custodial portion of his sentence. See N.J.S.A. 2C:43-7.2(c). The court 

rejected Njango’s request to credit him for the time served on each offense 

during the period the sentences on those offenses ran concurrently. Instead, 

the court applied Njango’s total 2,692 days (approximately seven-and-a-half 

years) of prior service credits to the front-end of his aggregate eighteen-year 

sentence.1

1

 Defendant was also awarded 660 days of jail credit. Service credits are 

awarded to a defendant for time served on a custodial sentence following the 

entry of a judgment of conviction. Jail credits are awarded to a defendant for 

time served in custody prior to the entry of a judgment of conviction. See

State v. C.H., 228 N.J. 111, 117 (2017).
8

On February 1, 2017, the Appellate Division reversed “the trial court’s 

decision not to award prior service credit” on the concurrent sentences 

imposed on the two indictments at the first sentencing. In determining that 

Njango should be credited for the time he simultaneously served on the two 

indictments, the Appellate Division looked to North Carolina v. Pearce, which 

held that the Fifth Amendment guarantee against double jeopardy “requires 

that credit must be given for punishment already endured” and that 

“punishment already exacted must be fully ‘credited’ in imposing sentence 

upon a new conviction for the same offense,” 395 U.S. 711, 717, 718-19 

(1969). From Pearce, the Appellate Division reasoned “that failing to award 

[Njango] prior service credit from the two vacated concurrent sentences to 

both of the resentenced consecutive terms would violate [his] Fifth 

Amendment rights.”

We denied the State’s petition for certification. 230 N.J. 363 (2017). 

On May 9, 2017, the trial court amended the judgments of conviction and 

awarded Njango 2,692 days of service credits on both indictments. The next 

day, Njango was released from prison. We later denied the State’s motion for 

reconsideration of our order denying certification.
9

C.

Njango filed a PCR petition, claiming that had he received the proper 

number of service credits at the time of his second sentencing, he should have 

been immediately released from prison. He maintained that, as a result of the 

second sentencing court’s error, he served an additional one year and seven 

months in prison.

2

 As a remedy, he sought to have the period of parole 

supervision reduced by the excess time he served in prison or, alternatively, to 

withdraw his plea. 

The PCR court stated, “[T]hat the defendant had to spend more time in 

custody is unfortunate, but it is sometimes the nature of appeals. And that’s 

not time that can be given back.” The court noted that the calculation of 

service credits is a matter for the Department of Corrections and the Parole 

Board and that further review must be sought in the Appellate Division. 

Determining that Njango’s sentence was not illegal, the court denied Njango’s 

petition.

2

 The one year-and-seven-month period covers the time between Njango’s 

October 1, 2015 sentencing and his release from prison on May 10, 2017, after 

the Appellate Division awarded the service credits due to him.
10

D.

The Appellate Division affirmed the PCR court, holding “that mandatory 

periods of parole supervision imposed under NERA cannot be reduced by prior 

service credits, even where the defendant was imprisoned longer than he 

should have been due to a failure to properly award such credit.” Njango, 463 

N.J. Super. at 10. The Appellate Division emphasized that NERA’s imposition 

of a five-year period of parole supervision for a first-degree crime and threeyear period of parole supervision for a second-degree crime is “mandatory,” 

citing N.J.S.A. 2C:43-7.2(c). Id. at 8-9. The court asserted that “the 

Legislature’s objective in requiring mandatory parole supervision for NERA 

offenses was ‘to protect the public from the risk posed by the release of violent 

offenders from incarceration.’” Id. at 9 (quoting State v. Friedman, 209 N.J. 

102, 120 (2012)). It reasoned that allowing a defendant to “trade unused prior 

service credit for mandatory parole supervision time on a NERA offense . . . 

would be contrary to the Legislature’s purpose in enacting the mandatory 

parole supervisory period.” Id. at 10.

The Appellate Division also rejected Njango’s bid to withdraw his guilty 

plea “at this late date,” stating that he had not sought to do so when the 

sentencing court ruled against his request to apply service credits to both 

indictments and that a plea withdrawal would not “remedy [the] situation.” Id.
11

at 10-11. Last, the Appellate Division found no merit in Njango’s double 

jeopardy argument, explaining that “there is no way the years he spent in 

prison can be returned to him.” Id. at 11 (quoting Pearce, 395 U.S. at 719). 

E.

We granted Njango’s petition for certification, which framed the 

“question presented” as “[w]hether prior service credits for time that a person 

was wrongfully imprisoned beyond the term of incarceration may be applied to 

periods of parole supervision required under the No Early Release Act.” See

243 N.J. 264 (2020). We also granted the motion of the New Jersey Attorney 

General to participate as amicus curiae.

After we heard argument on the question presented, we requested 

supplemental briefing to address “whether defendant is entitled to service 

credits on each count for which he was sentenced, or whether the principles of 

State v. C.H., 228 N.J. 111 (2017) apply.”3 The case was then re-argued.

Despite the fine presentations on re-argument, we will not revisit the 

Appellate Division’s decision, issued four years ago, which granted Njango 

service credits for the time he simultaneously served on the two indictments 

3

 In C.H., we determined that, pursuant to Rule 3:21-8, the defendant was not 

entitled to the double counting of pre-sentence jail credits “for time 

simultaneously spent in custody” on charges in two separate indictments for 

which he received consecutive sentences. 228 N.J. at 118, 121.
12

while the sentences ran concurrently -- a decision resulting in Njango’s release 

from prison and the commencement of his parole supervision. To be sure, our 

denial of certification as well as our denial of the motion for reconsideration 

should not be read as a determination or commentary on the merits of that 

prior Appellate Division decision. Our jurisprudence makes clear that the 

denial of a petition for certification is not an expression of approval or 

disapproval of an opinion or judgment of the Appellate Division. State v. 

Hodge, 105 N.J. 518, 519 (1986). Nevertheless, Njango had an expectation of 

finality in that Appellate Division determination.

Accordingly, we view the Appellate Division’s 2017 ruling as the law of 

this case. See State v. K.P.S., 221 N.J. 266, 276-77 (2015). “The law-of-thecase doctrine is a non-binding rule intended to prevent relitigation of a 

previously resolved issue in the same case.” Id. at 276 (emphasis and 

quotation omitted). The doctrine is “guided by the ‘fundamental legal 

principle . . . that once an issue has been fully and fairly litigated, it ordinarily 

is not subject to relitigation between the same parties either in the same or in 

subsequent litigation,’” id. at 277 (omission in original) (emphasis omitted)

(quoting Morris Cnty. Fair Hous. Council v. Boonton Township, 209 N.J.

Super. 393, 444 n.16 (Law Div. 1985)).
13

With that approach in mind, we will confine our discussion to the issue 

on which we originally granted certification -- whether the excess time Njango 

served in prison can offset the time he must serve under parole supervision 

pursuant to NERA.

II.

A.

Njango argues that the Appellate Division’s determination that he is not 

entitled to apply his service credits -- the excess time he served in prison -- to 

reduce the remaining portion of his eight-year period of parole supervision 

violates the double jeopardy principles of the United States and New Jersey 

Constitutions. Njango maintains that parole supervision “is a component of, 

and not separate from,” an overall NERA sentence. Because NERA parole is 

punishment, akin to imprisonment, Njango reasons NERA parole extends the 

period of his punishment. If his excess prison time does not reduce his period 

of parole supervision, Njango asserts that the time he will have served in 

prison and on parole supervision will exceed the maximum permissible limit of 

his sentence. He insists that whatever the Legislature’s intent may be, it 

“cannot override the constitution.” Denying him the right to apply the service 

credits accumulated on his first sentence toward his second sentence, he 

asserts, contravenes the double jeopardy prohibition against receiving 
14

“multiple punishments for the same offense,” quoting State v. Miles, 229 N.J. 

83, 92 (2017) (citing, in turn, Pearce, 395 U.S. at 717).

B.

The State and the Attorney General (collectively, the State) advance 

many of the same arguments in urging this Court to affirm the Appellate 

Division. The State explains that Njango “spent more time incarcerated 

because of the appellate process -- and no other reason,” and that “[t]he 

criminal justice system can’t provide a remedy.” The State contends that, 

under N.J.S.A. 2C:43-7.2(c), “the mandatory period of parole supervision [for 

a NERA offense] does not commence until the defendant’s release from 

incarceration” and that Njango cannot apply “unused prior-service credits to 

reduce [a] mandatory supervision period” without contravening the plain 

language of the statute and the Legislature’s intent.

The State emphasizes that parole supervision begins when a defendant is 

actually released from prison -- “not some hypothetical date he should have 

been freed.” The State also posits that incarceration serves a different purpose 

from mandatory parole supervision, which is intended to monitor and 

supervise released offenders for public safety and rehabilitative purposes. 

Additionally, the State claims that reducing Njango’s eight-year period of 

supervised release “would shatter the expectations of the State and the trial 
15

court.” In its view, Njango received double service credits, and such a 

windfall does not implicate double jeopardy concerns.

III.

A.

We accept this case as it has come to us, from a determination by the

Appellate Division in 2017 that the trial court mistakenly denied Njango 

service credits toward his second sentence. Based on that decision, Njango 

served at least one year and seven months in prison beyond his release date.4 

Had he been timely released from prison, he would have completed one year 

and seven months of parole supervision. From the State’s public-safety 

perspective, one year and seven months of prison surely is the equivalent of 

the same period under parole supervision.

The question is whether, within the constitutional framework of our 

system of justice, there is no remedy -- as the State asserts -- for the time

Njango should not have spent in prison. We begin with a review of the 

relevant provisions of the No Early Release Act.

4

 We note here that Njango also claims that at the time of sentencing, he had 

already served approximately an extra 1.3 years beyond the point at which he 

should have been paroled. We are not in a position to pass judgment on the 

accuracy of his calculation. That calculation must be made by the New Jersey 

State Parole Board and/or the Department of Corrections.
16

N.J.S.A. 2C:43-7.2(a) provides that a court sentencing a defendant to a 

term of incarceration for a first- or second-degree crime enumerated in 

subsection (d) “shall fix a minimum term of 85% of the sentence imposed, 

during which the defendant shall not be eligible for parole.” The eighty-five 

percent period of parole ineligibility is known as a NERA sentence. Among 

the crimes enumerated in subsection (d) of N.J.S.A. 2C:43-7.2 are first-degree 

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; and second-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(1) -- crimes to which Njango pled 

guilty.

N.J.S.A. 2C:43-7.2(c) further provides that a court meting out a NERA 

sentence “shall also impose a five-year term of parole supervision if the 

defendant is being sentenced for a crime of the first degree, or a three-year 

term of parole supervision if the defendant is being sentenced for a crime of 

the second degree.” Under subsection (c), a defendant’s NERA parole 

supervision begins 

upon the completion of the sentence of incarceration 

imposed by the court pursuant to [N.J.S.A. 2C:43-

7.2(a)] unless the defendant is serving a sentence of 

incarceration for another crime at the time he completes 

the sentence of incarceration imposed pursuant to 

subsection (a), in which case the term of parole

supervision shall commence immediately upon the 

defendant’s release from incarceration.

[N.J.S.A. 2C:43-7.2(c).]
17

A defendant is in the custody of the Department of Corrections when 

serving a term of imprisonment under NERA. Ibid.; N.J.S.A. 30:4-123.51b(a). 

While serving a NERA period of parole supervision, the defendant remains “in 

the legal custody of the Commissioner of the Department of Corrections, and 

shall be supervised by the Division of Parole of the State Parole Board as if on 

parole.” N.J.S.A. 30:4-123.51b(a); see also N.J.S.A. 2C:43-7.2(c). If a 

defendant fails to abide by the conditions of his parole, the board panel has the 

authority to “revoke [his] release status and return [him] to custody for the 

remainder of the term” or until he again becomes eligible for release. N.J.S.A. 

30:4-123.51b(a).

B.

Under our jurisprudence, parole is “in legal effect imprisonment” and 

therefore punishment. Riley v. State Parole Bd., 219 N.J. 270, 288 (2014) 

(quoting Anderson v. Corall, 263 U.S. 193, 196 (1923)); see also State v. 

Rosado, 131 N.J. 423, 428 (1993) (“[P]arole is the legal equivalent of 

imprisonment . . . .”). We have described NERA’s mandatory period of parole 

supervision as having a “penal impact” and a “penal consequence” to a plea to 

a NERA offense. State v. Johnson, 182 N.J. 232, 240 (2005). Indeed, one of 

the “harsh consequences” of the mandatory period of parole supervision is that 

a parole violation “could subject defendant to additional incarceration for a 
18

length of time that could make the custodial sentence, in the aggregate, far 

exceed the original sentence imposed as part of the plea bargain.” Ibid.

As noted, a defendant who is imprisoned for a NERA offense remains in 

the custody of the Department of Corrections when placed on NERA parole 

supervision. Accordingly, if Njango does not receive service credits for the 

excess time served in prison, he will remain in the custody of the Department 

of Corrections for a year and seven months beyond the maximum sentence

imposed by the trial court. Clearly, the Legislature did not contemplate

whether a defendant wrongly or mistakenly compelled to remain in prison 

beyond his prescribed sentence should be mandated to serve the entire period 

of parole supervision without a remedy. The arbitrary government 

decisionmaking that has denied Njango a remedy for a wrong is addressed by 

the fundamental fairness doctrine.

C.

The fundamental fairness doctrine finds its source in Article I, Paragraph 

1 of the New Jersey Constitution, which “sets forth the first principles of our 

governmental charter -- that every person possesses the ‘unalienable rights’ to 

enjoy life, liberty, and property, and to pursue happiness.” Lewis v. Harris, 

188 N.J. 415, 442 (2006). Despite the absence of the phrase due process in 

that paragraph, this Court has “construed the expansive language of Article I, 
19

Paragraph 1 to embrace the fundamental guarantee of due process.”

Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008).

An “integral part” of that guarantee of due process is the doctrine of 

fundamental fairness. See State v. Shaw, 241 N.J. 223, 239 (2020) (quoting 

State v. Saavedra, 222 N.J. 39, 67 (2015)); see also State v. Abbati, 99 N.J. 

418, 429 (1985). The doctrine “serves to protect citizens generally against 

unjust and arbitrary governmental action, and specifically against government 

procedures that tend to operate arbitrarily.” Doe, 142 N.J. at 108 (emphasis 

omitted) (quoting State v. Ramseur, 106 N.J. 123, 377 (1987) (Handler, J., 

dissenting)). The “one common denominator” in our fundamental fairness 

jurisprudence is “that someone was being subjected to potentially unfair 

treatment and there was no explicit statutory or constitutional protection to be 

invoked.” Id. at 109. The fundamental fairness doctrine “promotes the values 

of ‘fairness and fulfillment of reasonable expectations in the light of the 

constitutional and common law goals.’” State v. Vega-Larregui, 246 N.J. 94, 

132 (2021) (quoting Saavedra, 222 N.J. at 68). We apply the fundamental 

fairness doctrine “‘sparingly’ and only where the ‘interests involved are especially 

compelling.’” Saavedra, 222 N.J. at 67 (quoting Doe, 142 N.J. at 108).

“Because we have, from time to time, construed Article I, Paragraph 1 to 

provide more due process protections than those afforded under the United 
20

States Constitution,” Jamgochian, 196 N.J. at 239, we will rely on the 

fundamental fairness doctrine to resolve the issue before us.

IV.

At Njango’s second sentencing, the trial court imposed an aggregate 

eighteen-year NERA term to be followed by an aggregate eight-year 

mandatory period of parole supervision. That unitary sentence placed Njango 

in the custody of the Department of Corrections for a maximum of twenty-six 

years. The failure of the PCR court and the Appellate Division to credit 

Njango with the excess prison time served, in effect, has extended Njango’s 

period in the custody of the Department of Corrections to twenty-seven years 

and seven months. That means that Njango’s actual sentence now exceeds the 

sentence imposed by the trial court.

Although the Appellate Division is correct that “the Legislature’s 

objective in requiring mandatory parole supervision for NERA offenses was 

‘to protect the public from the risk posed by the release of violent offenders 

from incarceration,’” Njango, 463 N.J. Super. at 9 (quoting Friedman, 209 N.J. 

at 120), the NERA term of incarceration serves precisely the same objective.

As noted earlier, “parole is the legal equivalent of imprisonment,”

Rosado, 131 N.J. at 428, and NERA’s mandatory period of parole supervision 

is deemed a “penal consequence” of a NERA offense, Johnson, 182 N.J. at 
21

240. Parole supervision constitutes a loss of liberty of a kind, if not to the 

degree of incarceration. No persuasive reason has been advanced to explain 

why Njango’s serving an extra one year and seven months in prison -- when he 

should have been serving that time on parole supervision -- should not be 

credited towards his overall sentence, in particular the parole supervision 

period. The objective of parole supervision -- to protect the public from the 

risk from violent offenders -- was certainly satisfied when he was mistakenly 

or erroneously incarcerated beyond the prescribed time for his release. See

Njango, 463 N.J. Super. at 9.

As pointed out by Njango, if he were incarcerated for a violation of his 

parole supervision, he would be entitled to use his excess service credits to 

reduce his custodial time and therefore the overall period of his parole 

supervision. That a defendant who violates parole can benefit from excess 

service credits while a defendant who complies with parole cannot is an absurd 

result that the Legislature could not have had in mind.

We must construe a statute, such as NERA, in a commonsense way “so 

that its reach does not exceed its constitutional limits.” See State v. Garron, 

177 N.J. 147, 172 (2003). The fundamental fairness doctrine is intended to 

provide a remedy for the inequitable and arbitrary decisionmaking that, in this 

case, has resulted in a year-and-seven-month loss of liberty for which the State 
22

will not give Njango credit toward his eight-year mandatory period of parole 

supervision. See Doe, 142 N.J. at 108. Here, notions of fundamental fairness

compel us to conform NERA to our State Constitution in a way that the 

Legislature would likely have intended. See State v. Natale, 184 N.J. 458, 485 

(2005).

Accordingly, we conclude that Njango’s eight-year period of parole 

supervision must be reduced by the excess time he served in prison.

V.

For the reasons expressed, we reverse the judgment of the Appellate 

Division. We remand to the New Jersey State Parole Board to calculate the 

excess time Njango served in prison and to credit that time toward the 

remaining period of his parole supervision.

5

 The Parole Board will conduct --

consistent with this opinion -- any proceedings that may be necessary.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE 

ALBIN’s opinion.

5

 We do not suggest that the Parole Board may not rely on or be assisted by 

the Department of Corrections in making the appropriate calculation.