May 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Passaic County, Law Division, Indictment No. 96-10-01292-Z.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2008
Before Judges Messano and King.
Appellant has served over twelve years of a fifteen-year sentence with a six-year period of parole ineligibility imposed in September 1998. In October 2006 defendant moved for a change of custody to a drug treatment facility pursuant to Rule 3:21-10(b). The motion was denied on the papers on November 13, 2006.
In his order denying relief the judge stated:
The defendant has not presented any evidence that he is presently addicted to drugs. State v. Davis, 68 N.J. 69, 85 (1975); see also State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976). The defendant has also failed to present sufficient evidence to convince the Court that if relief is granted, there is a reasonable probability that the defendant would (a) successfully complete the program; (b) that he will assume his proper and rightful place in society without violation of the law; (c) that his release is not incompatible with the welfare of society. State v. McKinney, 140 N.J. Super. [at] 164. The Pre-Sentence Reports generated prior to defendant's prior convictions indicate daily use of marijuana until 1995. However, the defendant has failed to present any evidence that would indicate a present drug addiction. Accordingly, the Court finds that as a repeat offender that has failed to make the threshold showing of addiction, the interests sought to be served by the defendant's transfer to a narcotics treatment center are outweighed by the purposes for which the defendant's custodial sentence should be continued. Therefore, defendant's motion for reconsideration of sentence is hereby DENIED.
In view of defendant's social and criminal record, including at least two prior convictions with mandatory minimum sentences, we find no abuse of discretion in denying the transfer to a limited resource such as a drug treatment center. The burden of proof is upon the applicant "to establish such facts as would move the judge to exercise his discretion favorably." State v. McKinney, 140 N.J. Super. at 163. The judge was justified in denying relief and requiring that the punitive aspect of the sentence be completed.
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