On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 95-05-0300-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Carchman and Waugh.
Following a plea of guilty to various charges arising from seventeen first and second-degree armed robberies committed while defendant Ricardo Freeny was on parole, defendant was sentenced on July 24, 1996 to an aggregate sentence of thirty years imprisonment with a minimum period of incarceration of fifteen years without parole. At the time of sentencing, defendant asserted that his conduct was caused by addiction to drugs. In April 2008, defendant filed a motion for "Change of Custodial Sentence to Permit Entry into Drug Treatment and Rehabilitation Program Pursuant to R. 3:21-10(b)(1)." The motion judge denied the application finding that it was time-barred and further, that defendant had failed to establish that he suffered from a present addiction. Defendant appeals. We conclude that defendant failed to make the requisite showing of a "present addiction" to warrant entry into a drug rehabilitation program and affirm.
Following his sentencing, defendant was assessed by Department of Correction's personnel as suffering from an addiction problem and further that "treatment [was] necessary." During the ensuing years of his sentence, defendant has participated in institutional substance abuse rehabilitation programs and then sought entry into a drug treatment program, necessitating the change in his custodial sentence.
Rule 3:21-10(b)(1) is an exception to the time-limitation on motions to reduce or change sentences*fn1 and provides that "[a] motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse[.]"
Significantly, on application for transfer to a substance abuse program, the burden rests upon the defendant to establish that he or she is an appropriate candidate for relief. State v. Le, 354 N.J. Super. 91, 94 (Law Div. 2002); State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). Defendant must establish facts necessary to support the exercise of a judge's discretion to grant relief.
In order to prevail on a motion under R. 3:21-10(b)(1), defendant must establish that he suffers from "present addiction." State v. Brown, 384 N.J. Super. 191, 196 (App. Div. 2006) (citing State v. Davis, 68 N.J. 69, 84-86 (1975). The proof must be more than a suggestion of addiction, but rather, the addiction must be a present or continuing addiction. State v. Dachielle, 195 N.J. Super. 40, 47 (Law Div. 1984).
Here, Judge Smith properly determined that defendant failed to meet his burden of proving present addiction. While defendant admits that he was under the influence of narcotics at the time he committed these offenses and that he has a history of drug abuse, he provides no supporting evidences of a present or continuing addiction. The offenses occurred over fourteen years ago. Defendant failed to present to Judge Smith any medical reports or other documentation to demonstrate that he is presently addicted.
Defendant relies on the comments made by the sentencing judge in 1996, twelve years before his application for a change in the sentence. The motion judge did not accept that statement as being sufficient to support an application made in 2008 requiring a showing of present addiction.
While we appreciate the earnestness of defendant's application and his apparent progress to curb his addiction while incarcerated, the record is devoid of the requisite showing that he has a present addiction as required by Rule 3:21-10.