On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-05-0900.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Chambers and Kestin.
Defendant, Robert Covington, appeals from a denial of his motion for a change in custodial sentence pursuant to Rule 3:21- 10(b)(1). In a single point on appeal, he argues:
THE LAW DIVISION ERRED BY DENYING DEFENDANT'S MOTION FOR THE ASSIGNMENT OF COUNSEL AND BY DENYING THE MOTION WITHOUT A FULL AND COMPLETE PRESENTATION.
We vacate the order denying the requested relief and remand for further proceedings.
In 1992, pursuant to a plea agreement, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a. He had initially been charged with felony-murder for his role in a 1990 robbery, during which the victim was shot and subsequently died from medical complications. Defendant was seventeen years old at the time of the crime. The trial court sentenced defendant to a forty-five-year term of imprisonment with parole ineligibility for half that term, twenty-two and one-half years. There is no need, for the purposes of this appeal, to recount whatever procedural history in the matter occurred subsequent to sentencing and before 2004. Defendant, in his brief on appeal, states:
In 2004, [he] applied for a custody change to go into a drug/alcohol program. On January 5, 2005, the Court required defendant to serve more time, praised him for his progress and dismissed the motion without prejudice.
The State does not dispute this account. In his "affidavit" attached to the instant motion, filed on November 29, 2007, defendant certified:
1. I began using drugs and alcohol as a teenager, eventually becoming addicted.
2. I still have urges to get high, and I often have alcohol and drug nightmares.
3. I have taken multiple programs to address my addiction.
4. I need and want long term in-patient treatment to address my addiction problem.
In support of the application, defendant supplied an excerpt from the transcript of the January 5, 2005, proceeding that depicts the motion judge as declining to reach a result that would have the practical effect of reducing the sentence substantially.
When you get closer to your stip, the prosecutor's office might agree to an inpatient program if they feel you've been making some substantial steps while you're in State's Prison to address this drug problem that you feel you have before you get released.
. . . If you're close to serving the end of you[r] stip[,] I could consider letting you do the last 18 months of your stip perhaps in a drug rehab program so that when you get out you don't have a drug problem.
The State does not dispute this account, either.
In his application, defendant contended that he meets the criteria of the governing cases, primarily State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976). He reiterates that position on appeal, in addition to his other arguments. The State, in its brief, contends that McKinney requires a defendant applying for Rule 3:21-10(b)(1) relief to ...