On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-09-1004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2012
Before Judges Sabatino and Maven.
Defendant Timothy Murphy appeals from the trial court's July 30, 2010 order denying his motion to change his sentence under Rule 3:21-10(b)(1) and to be admitted to a drug treatment program in lieu of his ongoing incarceration. Apart from substantively challenging the merits of the trial court's decision, defendant procedurally contests the court's denial of his request to present an allocution in support of his motion. For the reasons stated in this opinion, we affirm.
After a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and a lesser-included disorderly persons offense on count four. The jury also found defendant guilty of the fourth-degree offense of certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he had been separately indicted.
At sentencing in September 1997, the trial judge granted the State's motion for a discretionary extended term pursuant to N.J.S.A. 2C:43-7, and also merged count three with count one. Defendant personally addressed the court at sentencing and he apologized to the victim and her family. Applying the pertinent aggravating factors and finding no pertinent mitigating factors, the judge imposed a fifty-year custodial sentence on count one, with a twenty-year period of parole ineligibility. The judge also imposed eighteen-month prison terms, each with a seven-month parole ineligibility period, on counts two and four made to run concurrent with each other and with the sentence on count one.
We affirmed defendant's convictions and sentence on direct appeal. State v. Murphy, No. A-2573-98 (App. Div. January 20, 2000). The Supreme Court denied his petition for certification. State v. Murphy, 164 N.J. 560 (2000).*fn1
Twelve years following his sentencing, defendant filed a motion in 2009, pursuant to Rule 3:21-10(b)(1), seeking a change of his sentence and a transfer to a drug treatment facility. The motion judge*fn2 considered defendant's written submissions. These included a brief filed by his attorney, documents identifying programs that defendant had completed in prison, and proposed external treatment programs that had placed him on a waiting list. The judge also considered the oral arguments of defendant's attorney and the State's opposing contentions. The judge declined, however, defendant's request, tendered through his counsel, to address the court personally.
Upon considering the relevant factors for a transfer of a defendant to a drug treatment program under Rule 3:21-10(b)(1) and State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976), the motion judge concluded that defendant had not sustained his burden to justify such a change in his sentence. Among other things, the judge found that at least two other treatment programs remain available to defendant in prison and that there is no current evidence that defendant has a present addiction. The judge also found that defendant's extensive criminal record, which included numerous violent offenses, did not warrant admission into an alternative drug treatment program in lieu of continued incarceration. The judge further noted that there continues to be a need to keep defendant incarcerated, where he does not pose a danger to the community. In addition, the judge concluded that defendant had failed to establish a reasonable probability of successfully completing a drug treatment program, given that he had been previously discharged from such a program prior to his conviction after testing positive for cocaine on at least four occasions.
Defendant now appeals, procedurally contending that he was improperly denied a right of allocution with respect to his motion to change the terms of his sentence under Rule 3:21-10(b)(1), and substantively contending that the court erred in denying his ...