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State v. Atum-Ra

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 3, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERU H. ATUM-RA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 81-00-1215.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2009

Before Judges Fisher and Baxter.

This matter was originally placed on a sentencing calendar to be resolved by this court without the parties' submission of briefs. At oral argument, defense counsel sought our removal of the appeal to the plenary calendar. At that time, defense counsel indicated a desire to submit to us a pro se motion provided to her by defendant. We did not decide the appeal at that time but instead permitted the submission of the pro se motion as well as briefs from both counsel. Since oral argument, we have received defendant's pro se motion, defendant's pro se brief on the merits, defense counsel's brief on the merits, and the State's opposing brief. We now affirm.

Defendant's pro se motion seeks the removal of this case to the plenary calendar. In light of the fact that we permitted the submission of briefs as indicated above, that aspect of the motion has been rendered moot.

In turning to the merits of the appeal, we observe that defendant pled guilty on November 9, 1982 to first-degree murder, N.J.S.A. 2C:11-3, and other serious offenses, and was sentenced on December 16, 1982 to a life term, with a twenty- five-year period of parole ineligibility on the murder conviction, as well as other concurrent terms of lesser duration on the other convictions.

On April 27, 2007, nearly twenty-five years after being sentenced, defendant moved for a change of his custodial sentence to permit his entry into a non-custodial treatment or rehabilitation program for substance abuse, pursuant to Rule 3:21-10(b)(1). The trial judge entered an order on September 25, 2007 denying defendant's motion. That is the order now under review.

In his pro se brief, defendant presents the following arguments:

I. COURT'S CONCLUSION IN ITS DECISION DENYING APPELLANT'S MOTION IS NOT SUPPORTED BY THE RECORD.

II. MOTION COURT'S DECISION IN DENYING APPELLANT'S MOTION SO THAT HE MAY BE TREATED FOR HIS DISEASE/ADDICTION, AMOUNTS TO "CRUEL" AND "UNUSUAL" PUNISHMENT. WHICH IS A VIOLATION OF THE EIGHTH AMENDMENT.

III. MOTION COURT'S DENIAL OF APPELLANT'S MOTION BECAUSE APPELLANT HAS AN ADDICTION IS A VIOLATION OF THE EIGHTH AMENDMENT, AND IS CONTRARY TO [RULE] 3:21-10(b)(1) AND CASE LAW.

IV. MOTION COURT'S FAILURE TO EXERCISE HIS [DISCRETION] FAVORABLY AMOUNTS TO AN ABUSE OF DISCRETION.

The brief filed by defense counsel mainly focuses on whether the trial judge abused his discretion in denying defendant's motion to be diverted to a substance abuse program. We find all these arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

In moving for relief pursuant to Rule 3:21-10(b)(1), it is well-settled that the burden falls on the movant to establish he is an appropriate candidate for such relief. State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). To sustain that burden, defendant was required to demonstrate a present addiction, a bona fide motivation to obtain rehabilitative therapy, and a reasonable probability that he will successfully complete the program and will assume a proper and rightful place in society without violating the law; ultimately, the court must consider whether the granting of relief is compatible with the welfare of society. Id. at 163-64.

In denying relief, the trial judge made the following finding:

[Defendant] committed two heinous murders. By his own admission, his drinking problem was a major contributing factor in the murders and made him a threat and danger to society. After 25 years in a very controlled and restrictive environment and a number of programs, [defendant's] serious alcohol problem still exists, the same alcohol problem that made him and continues to make him a threat and danger to society.

Because the record amply supports this description of the relevant circumstances, we have no cause to find that the judge abused his discretion in denying relief.

As we emphasized in McKinney, it is not enough that the movant demonstrate a present addiction and a willingness to participate in a program that would address the addiction:

The welfare of our citizens should be first and foremost. This therefore calls upon trial judges to be particularly circumspect in their consideration of such applications. . . . "The ultimate issue for determination is whether the purposes for which the custodial sentence . . . might reasonably be continued outweigh the interests sought to be served by transfer to a narcotics treatment center."

[140 N.J. Super. at 163 (citation omitted).]

The trial judge carefully and thoughtfully adhered to this philosophy and his decision was well within his discretion in ruling upon such a motion.

Affirmed.

20090203

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