On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1052 consolidated with Cumberland County Indictment No. 03-09-0916.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 17, 2008
Before Judges Cuff and C.L. Miniman.
Defendant Adam Santiago appeals from an order denying his motion for a change of custodial status. He is serving an eight-year term of imprisonment with a four-year discretionary parole ineligibility term following his guilty plea to fourth degree aggravated assault on a police officer, third degree receiving stolen property, second degree eluding, third degree escape, fourth degree criminal mischief, and third degree theft.
He sought a transfer to an in-patient drug treatment facility in Camden.
Rule 3:21-10 governs a motion for transfer from a correctional institution to a drug treatment facility. To prevail on this motion, a defendant is required to demonstrate that he suffers from an addiction, that he is willing to participate in a custodial drug treatment program, that the record indicates a reasonable probability that he will successfully complete the program, that the criminal record does not militate against a transfer of custody, and that the purposes of the custodial sentence are not frustrated by the transfer. State v. Davis, 68 N.J. 69, 85-86 (1975); State v. McKinney, 140 N.J. Super. 160, 163-64 (App. Div. 1976). Judge Ravin found that defendant failed to demonstrate he suffered from an addiction and his criminal record, including two escapes from correctional facilities, militated against the requested relief.
On appeal, defendant raises the following arguments:
THE LOWER COURT, IMPROPERLY AND INAPPROPRIATELY REL[IES] ON INTUITION, NOT LAW, TO DECIDE THAT MR. SANTIAGO WOULD ESCAPE FROM A DRUG TREATMENT PROGRAM IF RELEASED TO A PROGRAM; AND USES APPELLANT'S "INCONSISTENT STATEMENTS" TO DETERMINE THAT APPELLANT HAS NOT USED DRUGS IN OVER 15 YEARS AND THEREFORE IS NOT ADDICTED.
THE LOWER COURT MISSTATED CASES THAT DO NOT SUPPORT HIS DECISION TO DENY APPELLANT RELIEF; THE LOWER COURT CITED DAVIS, LE AND MCKINNEY THAT ACTUALLY SUPPORT THE APPLICATION OF APPELLANT SANTIAGO.
[RULE 3:21-10] AND [N.J.S.A.] 30:6C[-]1 SHOULD BE RE-VISITED AS THEY ARE UNCONSTITUTIONALLY VAGUE AS THEY DO NOT FUNCTION AS INTENDED BASED ON THE VAST DENIALS OF DRUG TREATMENT APPLICATIONS BY ...