On appeal from Superior Court, Chancery Division, Family Part, Burlington County.
Before Judges J.h. Coleman, Muir, Jr. and Levy.
[273 NJSuper Page 438] The opinion of the court was delivered by
LEVY, J.S.C. (temporarily assigned).
On appeal from a custodial Disposition for violation of probation, a juvenile offender seeks credit for time spent in a residential program for treatment of juvenile sex offenders. We affirm the Disposition denying such credit.
S.T., sixteen years old, admitted he committed an offense, which if committed by an adult would be second degree sexual assault. He was adjudicated a delinquent and received a suspended Disposition and was placed on probation for three years conditioned on successful completion of an 18-month residential program at Pinelands Residential Group Center. S.T. was expelled from the program and, for violation of probation, eventually given a new Disposition of an indeterminate term at Jamesburg with a three year maximum. Pursuant to R. 5:21-3(e), he was credited with all time served in detention (both prior to his original Disposition and after he left Pinelands until this Disposition) but denied credit for 248 days spent at the Pinelands Center.
On appeal, the juvenile seeks custodial credit for the time he spent at the Pinelands Center, making the following contentions:
POINT I THE COURT BELOW ERRED IN DENYING THE JUVENILE'S MOTION FOR CREDIT FOR TIME SPENT IN THE PINELANDS RESIDENTIAL GROUP CENTER IN THAT THE COURT FAILED TO DISTINGUISH BETWEEN THE ADULT AND JUVENILE CREDIT PROVISIONS, RESPECTIVELY, R. 3:21-8 AND R. 5:21-3(e), INASMUCH AS THE STANDARD FOR CREDIT UNDER THE JUVENILE PROVISION IS MORE RELAXED THAN THAT UNDER THE ADULT PROVISION.
POINT II THE JUVENILE IS ENTITLED TO RECEIVE CREDIT FOR TIME SPENT AS A RESIDENT IN THE PINELANDS CENTER WHERE HE HAD BEEN COURT-ORDERED TO ATTEND THE PINELANDS PROGRAM AS A CONDITION OF PROBATION INASMUCH AS PROBATION IS A FORM OF PUNISHMENT AND THE FAILURE TO CREDIT THE JUVENILE WITH TIME SPENT ON PROBATION WOULD CONSTITUTE MULTIPLE PUNISHMENT FOR THE SAME OFFENSE AND WOULD THEREFORE BE IN VIOLATION OF THE FIFTH AMENDMENT'S GUARANTEE AGAINST DOUBLE JEOPARDY.
POINT III DUE PROCESS AND FUNDAMENTAL FAIRNESS REQUIRE THAT JUVENILES RECEIVE THE SAME CREDIT AS ADULTS, AND SINCE ADULTS RECEIVE CREDIT FOR TIME SPENT IN TREATMENT AT A SEX OFFENDERS DIAGNOSTIC UNIT, JUVENILES SHOULD BE ENTITLED TO CREDIT FOR TIME SPENT AT A SEX OFFENDERS TREATMENT FACILITY.
POINT IV SOUND PUBLIC POLICY AND THE INTEREST OF JUSTICE DEMAND THAT THE JUVENILE RECEIVE CREDIT FOR TIME SPENT AS A RESIDENT IN THE PINELANDS CENTER WHERE THE JUVENILE'S TERMINATION FROM THE PROGRAM ULTIMATELY RESTED UPON A DETERMINATION THAT THE JUVENILE'S NEEDS COULD NOT BE ADEQUATELY ADDRESSED BY THE PROGRAM'S THERAPEUTIC APPROACH AND WHERE THE EFFECT OF DENYING THE JUVENILE SUCH CREDIT IS TO PUNISH HIM FOR MAKING THE ATTEMPT TO REHABILITATE HIMSELF.
Normally, adult probationers resentenced after violating probation are denied credit for any time spent on probation, including time spent in a residential rehabilitation program. The development of this concept, as applied to adult drug treatment programs, is set forth in State v. Reyes, 207 N.J. Super. 126, 142-145, 504 A.2d 43 (App. Div.), certif. denied 103 N.J. 499 (1986).
There the defendant was sentenced to a probationary term conditioned on successful completion of an 18-month residential drug treatment program. He began the regime but was discharged after four months and charged with violating probation for failure to complete the program. His probation was revoked, and a new sentence was imposed; the court denied credit for the four months spent in the program. Examining the parameters of the program, we found it restricted a participant's personal freedom, but concluded compliance was voluntary in the sense that a participant was not locked in at the facility and though noncompliance could produce greater personal restrictions, a noncompliant participant was not subject to arrest nor did his noncompliance constitute criminal conduct. We noted further:
Although unauthorized departure from a residential drug program may have serious consequences, the participant does retain the option to leave and incur those consequences. Attendance at such a program is not the equivalent of
"custody" so long as there are no physical restraints and a participant retains the option to leave without committing an additional crime.
New Jersey's test for sentence credit focuses on the concept of "custody," and employs an understandable and constitutionally valid concept. (citation omitted) Attendance at a residential drug program shares some of the characteristics of jail time. Perhaps, successful completion by probationers might be encouraged by equating the two in some fashion. . . . Perhaps, denying credit motivates a probationer to avoid expulsion by making completion a means of avoiding passage of uncredited time. We do not choose between those two policy judgments. Perhaps partial credit would be appropriate. (citation omitted) That, however, is for consideration by the Supreme Court or the Legislature.
Therefore we found the defendant there was not in custody and was not entitled to credit for time served.*fn1
Somewhat analogous is State v. Towey, 114 N.J. 69, 86, 552 A.2d 994 (1989), where the Court denied credit to a defendant who entered a psychiatric hospital voluntarily. There defendant admitted herself to the hospital two weeks before murder charges were filed against her. At a bail hearing, defense counsel informed the court that defendant required psychiatric assistance and would be psychologically harmed if she were removed from the hospital. The trial court set bail subject to the condition that defendant be arraigned upon her release from the hospital. The Court found defendant's confinement was not ...