January 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-12-4855 and 99-01-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Stern and Collester.
Defendant appeals from the denial, on November 28, 2006, of his motion for change or reduction of sentence and transfer to a drug treatment program under R. 3:21-10(b)(1). Defendant was sentenced in September 1999 to concurrent twenty year terms with 85% to be served before parole eligibility under the No Early Release Act (NERA) for two carjackings. On direct appeal the NERA component was vacated under State v. Burford, 163 N.J. 16 (2000).*fn1 His prior application in 2003 under the same rule was denied,*fn2 and we affirmed that order.
Defendant has served nine years (including 336 days of jail credit) of his twenty-year sentences for carjacking. There is a letter in the record from the Department of Corrections' ombudsman stating that defendant is drug dependent and needs treatment, and he may need such assistance before returning to the streets on parole. However, defendant submitted no evaluation of his dependency, and refers to no program indicating a willingness to enroll him. Thus, there is no basis for finding that Judge Vichness abused his discretion in denying the application. See State v. Davis, 68 N.J. 69, 86 (1975); State v. Robinson, 148 N.J. Super. 278, 285 (App. Div. 1977); State v. McKinney, 140 N.J. Super. 160, 163-64 (App. Div. 1976). See also R. 2:11-3(e)(2); R. 3:21-10(c).