On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 95-12-3195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
On December 12, 1996, two days after his jury trial commenced, defendant pled guilty to one count of first-degree carjacking, N.J.S.A. 2C:15-2. In exchange for his guilty plea, the State recommended that defendant receive a twenty-five year sentence with a five-year minimum period of parole ineligibility. Defendant was sentenced in accordance with the State's recommendation.
By order dated August 13th, 1999, defendant's pro se motion seeking a change of custody was denied without prejudice to defendant re-filing the motion once he completed his mandatory period of parole ineligibility. On December 24, 2007, defendant filed a second motion to change custody to a narcotics' treatment program outside of the prison. The court, without oral argument, denied the motion. In its statement of reasons incorporated into its order the court stated: "[T]he extent of Defendant's criminal record militates against the granting of relief" and the "purpose for which the custodial sentence might reasonably be continued outweighs the interests sought to be served by transfer to a narcotics treatment center[.]" The present appeal followed.
On appeal, defendant contends that he is in need of a substance abuse "program outside [the] prison to address [his] addiction and to explore if [he has] any underlying factors that are exacerbating [his] addiction." He contends further that while he has participated in substance abuse programs during his incarceration, such programs "do not adequately address the problems of substance abuse, but merely arrest the problem until such prisoner is released."
In reviewing a trial court's determination to release a defendant to a drug treatment facility, we consider whether the trial court abused its discretion. State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). "On an application for transfer to a narcotics treatment program the burden rests upon the applicant to establish that he is an appropriate candidate for such relief. To that end, he is obliged to establish such facts as would move the judge to exercise his discretion favorably." Ibid. Here, defendant, who was twenty-nine years old at the time of sentencing, had been adjudicated a delinquent on three prior occasions and had at least eight arrests over a ten-year period, which resulted in four indictable convictions. He violated probation and parole three times. Thus, defendant's prior criminal history demonstrated his failure to be deterred from engaging in further criminal activity, as well as his poor response to probation and parole. Under these circumstances, we find no abuse of discretion in the court's conclusion that the interests sought to be served through defendant's incarceration were not outweighed by the interests that would be served by his transfer to a substance abuse treatment center. See State v. Davis, 68 N.J. 69, 86 (1975).
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