On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-02-0399 and 08-04-0923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Sabatino and J. N. Harris.
Defendant, forty-four years of age at the time, was separately indicted for two episodes of drug-related criminal behavior that occurred within a week of each other in the waning days of 2007 and into the first week of 2008. At the time, defendant had been suffering from decades-long ill health and enduring substance abuse. This was confirmed by an Adult Presentence Report, which indicated that as of June 2008, defendant had been convicted of more than fifteen crimes (mostly drug-related), had been incarcerated for several years, and had been diagnosed with multiple illnesses.
Defendant voluntarily entered into a plea agreement covering both indictments, which ultimately resulted in his conviction for third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). In exchange for the entry of the plea, the State agreed to recommend a maximum aggregate sentence of five years incarceration with two and one-half years of parole ineligibility, which was imposed by the sentencing judge.
Defendant now appeals primarily because he was denied admission to and the opportunity to benefit from drug court treatment, which he claims would have resulted in an alternative sentence consisting of rehabilitation instead of incapacitation. We affirm the proceedings of the Law Division because we cannot detect either an abuse of discretion or harmful error in the disposition of defendant's several indictments.
Defendant entered into the plea agreement on May 8, 2008. At that time, defendant's plea form indicated that he reserved the right to file a later motion pursuant to N.J.S.A. 2C:35-14 as a drug or alcohol dependent person seeking an alternate sanction of special probation instead of ordinary incarceration. The reservation recognized that the State neither consented nor objected to the filing of the motion, but left its disposition to the court. Sentencing was scheduled for six weeks hence, on June 20, 2008.
To facilitate the motion, the plea form expressly noted that defendant was to undergo an evaluation, to be performed by the Atlantic/Cape May County Treatment and Assessment Services for the Courts (TASC). Following the plea allocution, the Law Division judge ordered that as part of the pre-sentence process, a TASC evaluation be performed. After its completion on June 5, 2008, the evaluation indicated that defendant suffered from long-term substance dependency and that "he would benefit from addiction and mental health residential long-term drug treatment." Accordingly, the TASC evaluator recommended a "Level III.5-Medically monitored intensive inpatient treatment."
Defendant was referred to the John Brooks Recovery Center as the locale for this program, and the TASC report indicates "[t]reatment program has requested his medical records from the jail before determination can be made for admission."
As foretold by the plea agreement, defendant filed a motion entitled, "Notice of Motion to Sentence Defendant to a Long Term Rehabilitation Facility Pursuant to N.J.S.A. 2C:35-14." The motion was returnable on June 20, 2008, the same day as defendant's sentencing. The motion was supported with a certification by defendant's attorney that outlined the chronology of the case, including the recommendation of the TASC evaluation, and contained the attorney's opinions about defendant's suitability to a sentence other than ordinary incarceration. The certification also claimed to contain "a copy of the acceptance correspondence" from a "suitable treatment facility," but that was inaccurate; no such correspondence was attached. Defendant did not provide his own certification in support of the motion.
On the date of sentencing, defense counsel advised the sentencing judge, "I had filed a [N.J.S.A. 2C:]35-14 motion back on June 13[, 2008]. That motion did not actually contain confirmation that he was actually accepted to a program." Instead, defense counsel informed the court that at "4:45 [p.m.] last night" an acceptance from "the Salvation Army" was received. The court immediately noted that the "Salvation Army is not a licensed rehab facility, [so it] would not comply with [N.J.S.A. 2C:]35-14." Defense counsel then responded, "So I'm basically asking for a one-week postponement to see if we can get him into another facility. He's waiting for John Brooks, is where he's advised me as well."
The sentencing judge declined defense counsel's request to adjourn the sentencing, but offered ...