On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal Docket No. 04-084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
Defendant, Edward J. McCauley, appeals from a Law Division decision vacating his sentence to the Bergen County Home Custody Program, and requiring him to serve the time in county jail. For the reasons that follow, we affirm.
Defendant entered a guilty plea on August 3, 2004, in the Saddle River Municipal Court, to, among other things, driving while intoxicated (DWI), N.J.S.A. 39:4-50. He was sentenced to appropriate penalties, and other statutory sanctions, including 180 days in jail as a third-time offender. Up to ninety days of the 180-day jail sentence were to be served in an inpatient treatment facility, and the remaining days were to be spent in the Bergen County Home Custody Program.
Defendant appealed his sentence to the Law Division, where it was affirmed. Defendant then appealed to this court, and while his appeal was pending, State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006) was decided. Although we affirmed defendant's conviction as a third offender, in an unpublished opinion we remanded the matter for reconsideration of the 180-day sentence pursuant to Luthe. State v. McCauley, No. A-4622-04 (App. Div. Sept. 19, 2006). On remand, the Law Division vacated that portion of defendant's sentence which permitted him to serve his sentence in in-home custody, and instead required him to serve the time in the Bergen County Jail.
Luthe was decided after the amendment of N.J.S.A. 39:4-50(a)(3), known as Michael's Law, which states in part:
For a third or subsequent violation, a person . . . shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program . . . . [Emphasis added.]
The amendment to the law went into effect on January 20, 2004, some eight months prior to the entry of defendant's guilty plea. Michael's Law, P.L. 2003, ch. 315, § 4. Luthe, supra, 383 N.J. Super. at 515 unequivocally interprets the statute, with the exception of time spent in inpatient rehabilitation programs, to prohibit non-custodial sentencing alternatives, including work release, out-patient treatment "or the like" for third or subsequent DWI offenses. As we noted in Luthe, where "the mandate is clear, we need not resort to extrinsic evidence to discern the Legislature's intent in enacting this amendment." Id. at 514. And the mandate we considered to be quite clear.
Defendant contends the Bergen County Work Release and Home Custody programs are so restrictive they fall outside of the amendment's prohibition, and essentially, that Luthe went too far in its reading of the statute. We disagree.
In a work release program a defendant is confined to the county jail evenings, nights, and weekends, basically only whenever he or she is not at work. There is no distinction between the work release program option found unacceptable in Luthe, supra, 383 N.J. Super. at 514, and the program operated in Bergen County.
A home custody program is even less restrictive than work release. The obvious distinction is that a defendant remains at home when not at work. The program imposes strict conditions on all participants, but a defendant is confined to jail only if he violates the conditions. As the Law Division judge said in his December 12, 2006, oral opinion, the Bergen County Home Custody Program is simply not a viable sentencing option after Luthe: "[t]he program . . . allows the individual to go out to work, which would also not comport with the dictates of Luthe, which expressly prohibited service of the imprisonment in the Sheriff's Labor Assistance Program (SLAP) or on work release." Clearly, as he opined, if SLAP or work release is not permissible, a home custody program is not permissible either.
Defendant further contends that because those who participate in a home confinement program can be charged with escape, N.J.S.A. 2C:29-5, of necessity, work release and home custody must be effectively equivalent to custody. On the contrary, a person can be charged with escape even if subject to mere "official detention," a more expansive phrase that has been found to specifically include a home custody ...