On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-08-02679.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Alvarez and Nugent.
On February 2, 1996, defendant Jabbar Spears was sentenced, pursuant to a guilty plea, on Essex County Accusation No. 96-1-54, to an aggregate term of eighteen years in state prison on one count of first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). That same day, defendant was sentenced, also in accord with a plea agreement, on all counts contained in Indictment No. 95-08-02679, to a concurrent aggregate term of eighteen years subject to six years of parole ineligibility. Those charges related to defendant's commission of first-degree carjacking, N.J.S.A. 2C:15-2 and N.J.S.A. 2C:2-6, and armed robbery, N.J.S.A. 2C:15-1. In 2004, while incarcerated, defendant was sentenced in Cumberland County to a consecutive three-year term of imprisonment for a third-degree drug possession offense, N.J.S.A. 2C:35-10. This offense was committed while defendant was serving his sentence on the Essex County charges. No copy of that judgment is contained in either appendix.
Defendant's third application for a Rule 3:21-10(b)(1) change in custody to a drug treatment program was granted on July 16, 2009. Unfortunately, at the time neither the court nor the State were aware that defendant had remained imprisoned for fourteen of his eighteen-year aggregate sentence because he had lost 2475 days of commutation credit as a result of prison disciplinary infractions. Defendant was actually in administrative segregation when the application for a change in custody was made and, days prior to his motion hearing, on June 2, 2009, and July 11, 2009, had been found in possession of cell phones, losing an additional 365 days for each violation of prison disciplinary rules. Moreover, neither the court nor the assistant prosecutor who opposed defendant's application for a change in custody were aware that, contrary to representations made on the record, the Cumberland County Prosecutor's Office did not consent to a change in custody even if defendant's Essex County application was granted.
Defendant now appeals pro se the reinstatement of his original sentence and the issuance of a warrant which sent him back to state prison from the drug treatment program to which he had been released. Defendant's return to the Department of Corrections' (DOC) custody came only two days after defendant had been in the program. We affirm.
Defendant asserts the change in his custodial sentence cannot be revoked because it constituted a "verbal contract." We disagree. The State mistakenly agreed to join in defendant's application because the Essex County assistant prosecutor lacked accurate information about defendant's disciplinary history, the conduct which resulted in the Cumberland County charges, or the fact that the Cumberland County sentence was consecutive to the one at issue. Defendant disclosed only partial information in making his application, namely, that he had completed every program available in the course of his fourteen years of imprisonment. The State cannot be bound by action it took based on erroneous information.
In similar fashion, the judge ordered a change in custody, believing that defendant was acting in good faith. He was not provided with accurate information either.
Furthermore, the order, which referred to only one set of Essex County charges, could not alter the requirement that defendant complete his Cumberland County sentence. In other words, defendant was technically in the custody of the Commissioner of the DOC on the Cumberland County sentence on July 16, 2009, when the transfer was ordered. See N.J.S.A. 2C:43-10(a). Hence he should not have been released to a drug program in the first instance.
The elements of a contract are, simply stated, "offer, acceptance, and sufficient consideration." See Creek Ranch, Inc. v. N.J. Tpk. Auth., 75 N.J. 421, 430 (1978). There is no merit to the notion that the trial judge's decision on defendant's motion for a change in custody is the equivalent. Defendant's contention that the initial decision is binding on the trial court or the prosecutor is equally lacking in merit.
Defendant also contends that principles of double jeopardy bar his return to prison because the issuance of a warrant transferring him violated the doctrine. He characterizes the issuance of the warrant as an illegal second arrest for a crime long ago addressed. This argument makes no sense. Defendant's double jeopardy argument does not warrant further discussion in a written opinion. See R. 2:11-3(e)(2).
In any event, the decision to grant an application for change in custody pursuant to Rule 3:21-10(b)(1) is discretionary with the court and the burden rests upon the defendant to establish circumstances which justify this extraordinary relief. See State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). The requisite analysis calls upon the trial court to weigh society's interest in a drug-addicted offender's rehabilitation against the general welfare and protection of society. State v. Davis, 68 N.J. 69, 86 (1975). In this case, separate from technical considerations, had the judge known about defendant's extremely significant prison record, including the commission of violations days prior to his resentence hearing, he would ...