On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication June 16, 1997.
Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.s.c. (temporarily assigned). Humphreys, J.A.D., Dissenting.
The opinion of the court was delivered by: Wecker
The opinion of the court was delivered by
WECKER, J.S.C. (temporarily assigned).
The State appeals a probationary sentence imposed upon remand. Defendant pled guilty to second-degree possession of a controlled dangerous substance, phencyclidine, with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(7). After entering into a plea agreement calling for the State to recommend a maximum five-year sentence, defendant was sentenced to a five-year probationary term. The State appealed on the ground that the presumption in favor of incarceration had not been overcome. We reversed and remanded for resentencing. The Supreme Court denied certification. 143 N.J. 518 (1996). On remand defendant was sentenced to a three-and one-half-year probationary term. *fn1 This is the State's appeal from that sentence.
We have carefully reviewed the record in light of the briefs, the arguments of counsel and the applicable law. We are satisfied that there is substantial support in the record for the sentencing Judge's explicit and implicit findings and for the sentence based upon those findings. We find no error or abuse of discretion and therefore affirm. See State v. Roth, 95 N.J. 334, 358, 471 A.2d 370 (1984).
At the time of defendant's original sentence, the Judge recognized that he could not make the requisite findings that the presumption in favor of incarceration had been overcome. *fn2 The Judge relied instead upon N.J.S.A. 2C:35-14c. That statute permits a defendant convicted of a second-degree offense to receive a probationary sentence along with commitment to a minimum six-month in-patient drug rehabilitation program if there has been a finding that the defendant would not be a danger to the community, is drug dependent, and is likely to be rehabilitated in the program. The Judge found that the defendant had participated in a two-week in-patient rehabilitation program between the date of his plea and the date of sentence, was enrolled in a follow-up out-patient program, and was "well on his way" to rehabilitation. We found N.J.S.A. 2C:35-14c inapplicable, concluding that the plain language of the statute required a minimum six-month commitment. However, we explicitly declined to "address a circumstance where defendant received six months of in-patient treatment after the offense was committed or if defendant was in such a program at the time of sentencing."
On remand, the Judge found that in the intervening eighteen month period, the defendant had been rehabilitated, and it would pose an undue hardship and an inJustice to incarcerate him at that point. He therefore resentenced defendant to probation. Although the Judge did not use the precise language of the statute, we are satisfied that he was clearly convinced that the mitigating circumstances substantially outweighed the aggravating and that the presumption of imprisonment had been overcome because "his imprisonment would be a serious inJustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d. The record supports that Conclusion.
The Judge noted evidence of defendant's twenty-two months of out-patient drug counseling, his assistance to others in the program, his responsible employment in his own pizza restaurant in upstate New York, regular visitation with his four-year old child, payment of his child support obligations, and his mother's health and financial circumstances. On resentencing, the Judge had letters both from the in-patient and the out-patient programs in New York State, confirming defendant's participation. A recent letter from his New York probation officer confirmed defendant's drug rehabilitation, citing repeated negative urine screenings. There was overwhelming evidence of defendant's successful rehabilitation from the drug dependency at the time of resentencing. The probation officer also confirmed defendant's transition from public assistance to employment and then ownership of his own restaurant, describing defendant as an "exemplary probationer who continues to gain the optimum benefits from probation supervision."
The Judge implicitly found and placed great weight upon statutory mitigating factors 9, 10 and 11: "the character and attitude of the defendant indicate that he is unlikely to commit another offense; the defendant is particularly likely to respond affirmatively to probationary treatment; and the imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1b. It is apparent that the Judge found that defendant's prior record was not serious and there was little risk of his committing another offense.
The sentencing court is permitted to consider the actual circumstances as of the date of a resentence, including what has occurred during the pendency of the appeal. State v. Towey, 244 N.J. Super. 582, 593-94, 583 A.2d 352 (App. Div. 1990). The Judge here said:
Now with the benefit of being a Monday morning quarterback, I wish every defendant that I placed on probation could do what Mr. Soricelli did.
Now I think this Court would be justified in placing him in a long-term in-patient program at this time, but he no longer, according to what we've heard, is using drugs. Certainly once addicted, you're always addicted, and he's going to have to fight hard.
And I think the -- the hardship that incarceration would cause at this time, the need for him and what he's done, I think it would be unjust to incarcerate him.
I think what you've done deserves consideration. We hope sometimes to rehabilitate someone who has had prior run-ins with the law so that they can get their addiction under control and will not violate the rules of society.
As Mr. Maher indicated, 90 percent of our cases involve drugs or are drug related. And I think what -- what probation is intended to do is -- where drugs are involved is to rehabilitate someone so they don't have to use drugs, and if they don't have to use drugs, they won't resort to other crimes.
I think that's what Mr. Soricelli did, was on his way to doing at the time of the original sentencing, and is what he proved to us that he was attempting to do at that time by actually going out and doing it.
In effect, the Judge found substantial compliance with the required six-month in-patient program because if defendant were still drug dependent, he could avoid prison by completing six-months of in-patient rehabilitation. We leave for another day the question whether successful rehabilitation prior to sentencing, with or without a full six-month in-patient experience, could warrant a 2C:35-14 sentence. For the present, we conclude that evidence of defendant's rehabilitation supported the sentencing Judge's findings of mitigating circumstances that clearly outweighed any aggravating circumstance.
Extraordinary circumstances are required as the basis for imposing a probationary sentence for a first or second-degree crime. See, e.g., State v. Johnson, 118 N.J. 10, 15, 570 A.2d 395 (1990); State v. Jarbath, 114 N.J. 394, 555 A.2d 559 (1989). We have previously affirmed such a sentence for a defendant dying of AIDS. State v. E.R., 273 N.J. Super. 262, 641 A.2d 1072 (App. Div. 1994). While the courts' "'residuum of power' to overcome the presumption of imprisonment . . . is severely limited," State v. Johnson, supra, it is not so limited as to deny its availability to a defendant who has committed no ...