On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Approved for Publication April 30, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
In 1990, defendant pled guilty to count two of an indictment charging first degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1),b(1), and to count two of a complaint charging possession of drug paraphernalia, N.J.S.A. 2C:36-2. She was sentenced to ten years imprisonment with five years before parole eligibility on the indictable offense and to 180 days in the county jail on the non-indictable. On the indictment, a $3,000 Drug Enforcement and Demand Reduction (DEDR) penalty, a $50 lab fee and a $30 VCCB penalty were also imposed. A $30 VCCB was also imposed on the non-indictable. *fn1 The sentences were made concurrent to a sentence defendant was then serving in New York.
It is undisputed that on February 23, 1993, when defendant was about to be paroled in New York and before completion of the ineligibility term in New Jersey, her sentence was amended to five years probation on the indictable and one year probation on the non-indictable. The motion was granted pursuant to R. 3:21-10(b)(1) which authorizes a change of sentence "to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse." The order modifying defendant's sentence provided that the penalties were to be paid at the rate of "$55 per month after defendant becomes employed." The amended judgment also made "in patient or out patient treatment at Cephas or Equivalent Treatment" a condition of the probation imposed.
On December 8, 1995, Judge John C. Stritehoff, Jr., the sentencing Judge, granted defendant's motion to vacate the DEDR penalty, based on the affidavit of the Associate Director of the Cephas-Attica Inc. rehabilitation program. *fn2 The State appeals from that order.
There is no dispute that the DEDR penalty is a mandatory penalty which cannot be vacated as a matter of discretion. N.J.S.A. 2C:35-15(a). However, N.J.S.A. 2C:35-15(e) provides in pertinent part that:
The court may suspend the collection of a penalty imposed pursuant to this section; provided the defendant agrees to enter a residential drug rehabilitation program approved by the court; and further provided that the defendant agrees to pay for all or some portion of the costs associated with the rehabilitation program. In this case, the collection of a penalty imposed pursuant to this section shall be suspended during the defendant's participation in the approved rehabilitation program. Upon successful completion of the [residential drug] program, the defendant may apply to the court to reduce the penalty imposed pursuant to the section by any amount actually paid by the defendant for his participation in the program. The court shall not reduce the penalty pursuant to the subsection unless the defendant established to the satisfaction of the court that he has successfully completed the rehabilitation program. [(Emphasis added.)]
The State does not dispute that enrollment in the CephasAttica program was consistent with the modification of sentence as ordered by the court under R. 3:21-10(b)(1). In fact, the Judge's statement of reasons for that order notes defendant's progress in New York and the fact she was accepted into Cephas, a "minimum 90 day" "live-in program" where "she would in all probability remain for 1 year." The State did not appeal from the order and did not challenge its legality. Nor does the State contest application of N.J.S.A. 2C:35-15(e) to the New York drug rehabilitation program if defendant "actually paid" for her participation in the program.
In support of her motion to vacate the DEDR penalty, defendant certified, in part:
7. That my DEDR costs at the Cephas inpatient program was in excess of the $3,500.00 DEDR charges imposed by New Jersey. See EXHIBIT B, wherein the director of Cephas states that the cost of my private inpatient treatment was approximately $4,000.00
8. Cephas accepts no funds from Medicaid or other state agencies or federal agencies and no public funds were ...