On appeal from the Superior Court, Appellate Division, whose opinion is reported at 302 N.J. Super. 193 (1997).
The opinion of the court was delivered by: Stein, J.
Argued September 15, 1998
Based on the Dissent below, the State appeals to this Court as of right, R. 2:2-1, from a judgment of the Appellate Division affirming the Law Division's resentencing of defendant to a three and one-half year probationary sentence based on defendant's guilty plea to second-degree possession of phencyclidine (PCP) with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 5(b)(7), and his guilty plea to a violation of probation for a prior offense involving possession of PCP. State v. Soricelli, 302 N.J. Super. 193, 197-98 (App. Div. 1997). In an earlier unpublished opinion, a different panel of the Appellate Division reversed the Law Division's imposition of a five-year probationary sentence on defendant for the same offenses, concluding that defendant's apparently successful rehabilitation from his drug addiction did not overcome the statutory presumption of incarceration for second-degree offenses, see N.J.S.A. 2C:44-1(d), and remanding the matter for resentencing. On remand, the Law Division again imposed a probationary sentence that was affirmed by the judgment from which this appeal is taken.
Primarily, we consider whether defendant's sentence to a probationary term for second-degree possession of PCP with intent to distribute is inconsistent with the statutory presumption of imprisonment for offenders convicted of first- and second-degree crimes. Secondarily, we consider the relevance of a second-degree drug offender's apparent rehabilitation in the context of both the statutory presumption of incarceration and the Legislature's determination in the Comprehensive Drug Reform Act of 1987, L. 1987, c. 106 (Drug Reform Act), N.J.S.A. 2C:35-1 to -23, that under prescribed circumstances second-degree drug offenders may be sentenced to five-year probationary terms in conjunction with a placement for at least six months in a drug rehabilitation program in the custody of a residential treatment facility. N.J.S.A. 2C:35-14.
The factual basis for defendant's negotiated plea to second-degree possession of PCP with intent to distribute was based on events occurring on July 18, 1993, when defendant was returning to New Jersey from New York City with his two co-defendants, John Gadonniex and Michael Cacchio. Defendant knew that Cacchio possessed a quantity of PCP that he had purchased in Manhattan for his own use and to share with friends. Gadonniex was driving and defendant was in the front passenger seat when local police stopped their car in Paramus. Cacchio threw some of the drugs, which were in a cigarette pack, into the front seat. Defendant placed the pack in the front of his pants to conceal them from the police. Although asserting his intention to return the drugs to Cacchio, defendant acknowledged that by concealing the drugs he acted as an accomplice to Cacchio. In addition to the four packets of PCP found in the cigarette box on defendant's person, the police found five more packets in a ripped portion of the vehicle's front seat, and ten packets in the patrol car in which defendant was transported separately to police headquarters.
Defendant was indicted for second-degree possession of PCP with intent to distribute, two counts of third-degree unlawful possession of PCP, third-degree unlawful possession of cocaine, and two counts of hindering apprehension. In March 1994, defendant pled guilty to second- degree possession of PCP with intent to distribute in exchange for the State's recommendation to dismiss the remaining counts of the indictment and to impose a maximum sentence of five-years imprisonment without a period of parole ineligibility. Because defendant already was serving a probationary term for a 1992 conviction for possession of PCP, he acknowledged that the current offense constituted a violation of probation and the State agreed to recommend that the sentences for both those offenses run concurrently.
Defendant's pre-sentence report reflects a "poor adjustment to Probation" prior to his arrest in July 1993, and refers to six occasions between July and October 1993 on which defendant tested positive for drug use. After being arrested again in October 1993 for violating probation, defendant's probation officer informed him that he needed long-term treatment to overcome his drug dependency.
In December 1993, defendant completed a fourteen-day in-patient drug treatment program at the Rhinebeck Lodge for Successful Living in Rhinebeck, New York. He then attended after-care counseling sessions at the Ulster County Mental Health Center. Between March 1994 and the imposition of sentence in October 1994, defendant received individual therapy as an out-patient at Bridge Back Drug Rehabilitation Center (Bridge Back) in Kingston, New York, where he also participated in an early recovery group, an alcohol awareness group, and a relapse prevention group. One of Bridge Back's counselors reported that defendant tested negative on all of his urine drug screen tests between March and May 1994, and also attended five to seven meetings per week of Alcoholics Anonymous or Narcotics Anonymous.
At defendant's sentencing hearing, defendant acknowledged a longstanding substance abuse problem that led to the loss of his home and business and the deterioration of his marriage. He described his in-patient and out-patient rehabilitation programs at Rhinebeck Lodge and Bridge Back, and stated that he regularly attended Alcoholics Anonymous and Narcotics Anonymous meetings, was paying child support for his young daughter, and was employed part-time. He informed the court that he had not used drugs or alcohol since November 1993. Defendant's brother and his New York attorney corroborated defendant's progress toward a successful rehabilitation. Diane Zines, defendant's addiction counselor at Bridge Back, informed the court that defendant had completed the basic six-month rehabilitation program and continued to attend all required individual and group sessions. She characterized his outlook as "very positive" and verified that all of his drug-urine test results were negative. Ms. Zines stated that defendant would require approximately one additional year of individual and group counseling.
After adjourning the imposition of sentence for two weeks to acquire additional information concerning defendant's compliance with the Bergen County Probation Department's reporting requirements, the sentencing Judge imposed a five-year probationary sentence conditioned on out-patient counseling, drug-urine testing, employment, and any other counseling required by the Probation Department. In imposing sentence the court referred to N.J.S.A. 2C:35-14, which permits trial courts to sentence certain drug-dependent offenders to a residential in-patient rehabilitation program for not less than six months as an alternative to prison. The court acknowledged that defendant's past and future treatment did not comply with that statute. Nevertheless, the court determined that a probationary sentence was appropriate:
"We have a second-degree offense which carries a presumption of incarceration [under N.J.S.A. 2C:44- 1(d)], extremely difficult if not impossible to overcome in this situation. How could he overcome that? He can't, he cannot. However, we do have a statute [N.J.S.A. 2C:35-14] that says if someone has a drug problem that can go into a -- in lieu of State Jail, a long term in-patient program which is defined as a six-month in-patient drug program. Now probation probably asked, the State asked why did Judge Gaeta continue this? Is he going to put him on probation on a second degree offense? Maybe. I don't know what I was going to do at first because I did see some signs that maybe he was coming around, basically, in May and June and I wanted to see if he was but I still cannot ignore what happened before, I cannot ignore that. We had a violation of probation, we had another offense that was committed so what do I do? What do I do with someone who is well on his way to -- I think now being rehabilitated, if I were to just go on the aggravating and mitigating factors here and says yep, he's amenable to probation, he's doing well which I believe he is doing now, is that enough to overcome the presumption in this particular circumstance? And I say that I'm clearly convinced that the mitigating factors substantially outweigh the aggravating? I don't think so. The interests of Justice that he should be placed on probation, no, we do have a statute that addresses these types of problems. The question is how do we get around the six months. I think what he's done and what he's going to continue to do is going to satisfy me that he will continue with his rehabilitation."
The court also imposed a $2,000 DEDR penalty, a $50 laboratory fee, a $50 VCCG assessment, and suspended defendant's driver's license for six months. The court continued defendant's probationary status on his prior drug offense for an additional five years.
The State appealed. After transferring the appeal from its sentencing calendar to the plenary calendar and ordering the filing of briefs on the interrelationship between the presumptive sentencing requirements of N.J.S.A. 2C:44-1(d) and the residential drug treatment program authorized by N.J.S.A. 2C:35-14, the Appellate Division reversed and remanded for resentencing. The court observed that, pursuant to N.J.S.A. 2C:35-14(c), "a drug dependent defendant sentenced to probation for a second degree crime must be placed in a residential program for a minimum term of six months. The plain language of the statute could not be clearer." The court noted that the presumption of imprisonment in N.J.S.A. 2C:44-1(d) can be overcome only if the sentencing court determines that incarceration would result in "serious inJustice" that overrides the need to deter, a standard that confers a "residuum of power" in sentencing Judges but is exercisable only in extraordinary circumstances where "the human cost of such deterrence . . . is too great." State v. Roth, 95 N.J. 334, 358 ...