On appeal from a judgment from the Superior Court of New Jersey, Law Division, Camden County.
[229 NJSuper Page 185] Defendant appeals from the denial of his motion for change or reduction of sentence, pursuant to R. 3:21-10(b)(1), to permit his transfer to an outpatient drug treatment program. Defendant is serving a sentence of 20 years, with a five year period of parole ineligibility, for armed robbery with a knife. The parole ineligibility term was imposed as a matter of discretion pursuant
to N.J.S.A. 2C:43-6b.*fn1 We reverse and remand for further proceedings.
In her letter denying defendant's motion the trial judge stated:
I am returning your Notice of Motion for Transfer to a Non-Custodial Drug Rehabilitation and Treatment Program since I cannot consider it while you are serving a period of parole ineligibility. In addition, your Motion does not conform to the standards of R. 3:21-10 and I cannot consider it over the objections of the Prosecutor.
Since the trial judge imposed a period of parole ineligibility as a matter of discretion, and not because a parole ineligibility term or mandatory minimum term was required by statute, the trial judge had jurisdiction to consider the application. See State v. Mendel, 212 N.J. Super. 110 (App.Div.1986). In reviewing the motion for transfer, the trial judge should, of course, consider the standards for evaluation of such an application by considering the aggravating and mitigating factors which resulted in her initial determination to incarcerate defendant with an ineligibility term. See e.g., State v. Davis, 68 N.J. 69, 84-86 (1975); State v. McKinney, 140 N.J. Super. 160, 163-164 (App.Div.1976); State v. Dachielle, 195 N.J. Super. 40, 46-48 (Law Div.1984). In evaluating the motion, the trial judge may also determine that the supporting materials were insufficient to warrant a hearing, see R. 3:21-10(c), but the application cannot be denied merely because defendant was serving a parole ineligibility term imposed as a matter of discretion. Neither could it be denied because of the absence of prosecutorial consent. While R. 3:21-10(b)(3) permits a change of sentence for good cause upon joint application by the defendant and
prosecuting attorney, R. 3:21-10(b)(1) permits such an application to be considered in the absence of joint application.
Accordingly, the order under review is reversed and the matter is remanded for further proceedings ...