STATE OF NEW JERSEY, Plаintiff-Respondent, v. ANTHONY F. STALTER, Defendant-Appellant.
DOCKET NO. A-5674-12T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
May 27, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION May 27, 2015
Argued October 29, 2014 – Decided May 27, 2015
Before Judges Alvarez, Waugh, and Maven.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-06-0179.
Kelly Anne Shelton, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor; Ms. Shelton, of counsel and on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D.
Defendant Anthony F. Stalter appeals the Law Division‘s June 20, 2013 amended judgment of conviction, which imposes a sentence of incarceration for three years for violation of probation. He focuses the appeal on the denial of jail credit for time spent in a residential treatment program in connection with his participation in Drug Court. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
In March 2010, Stalter attempted to obtain Xanax and Vicodin, both controlled dangerous substances, from a Rite Aid Pharmacy in Lopatcong Township. He telephoned the pharmacy and pretended to be a representative of his doctor‘s office. The Rite Aid employee with whom he spoke later contactеd the doctor‘s office and confirmed that the prescriptions requested by Stalter were fraudulent. He was arrested when he arrived at the pharmacy to pick up the prescriptions.
On June 3, Stalter рled guilty to an accusation charging him with a single count of third-degree obtaining a controlled dangerous substance by fraud.
Stalter successfully applied for admission to Drug Court. On April 5, his probation was revoked and he was sentenced to five years of probation under Track 2 of Drug Court admission. As a condition of probation, Stalter was required to participate in a residential drug treatment program at Integrity House. He successfully completed the program, having been at Integrity House for 217 days. He was then transferred to Freedom House, a residential halfway house. In January 2013, Stalter was discharged from Freedom House for violating the program by doing a crossword puzzle during group thеrapy and failing to report to his Drug Court supervisor as required. A bench warrant was issued for his arrest.
Stalter was arrested on April 22, and again charged with violating probation. He subsequently pled guilty and was sentencеd to incarceration for three years. Stalter was allowed 201 days of jail credit for the time he was in jail during the pendency of his case, but the sentencing judge denied his request for jail credit for the 217 days he spent at Integrity House. The judge explained that, “because [Stalter
II.
On appeal, Stalter raises the following issues:
POINT I: UNDER
R. 3:21-8 , STALTER SHOULD BE ENTITLED TO JAIL CREDITS FOR THE TIME HE SPENT IN A RESIDENTIAL TREATMENT FACILITY PURSUANT TO HIS DRUG COURT SENTENCE.POINT II: DENYING JAIL CREDITS FOR THE TIME STALTER SPENT IN A RESIDENTIAL TREATMENT FACILITY VIOLATED EQUAL PROTECTION.
In his reply brief, Stalter raises one additional issue:
THE TRIAL COURT IMPLICITLY FOUND THAT INTEGRITY HOUSE CONSTITUTES A “RESIDENTIAL TREATMENT FACILITY” FOR THE PURPOSES OF
N.J.S.A. 2C:35-14 , AND STALTER IS THEREFORE ENTITLED TO JAIL CREDITS. ALTERNATIVELY, REMAND IS REQUIRED TO ALLOW STALTER TO MAKE SUCH A SHOWING.
Stalter argues that he is entitled to jail credit for the time he spent at Integrity House in accordance with
Because the issue before us is one of law, our review is “de novo and we owe no deference to the trial [judge]‘s ‘interpretation of the law and the legal consequences that flow from established facts.‘” State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
“Drug Courts are specialized courts within the Superior Court that target drug-involved ‘offenders who are most likely to benefit from treatment and do not pose a risk to public safety.‘” State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey 3 (July 2002) [hereinafter Drug Court Manual]). Although Drug Courts are involved in the implementation of the “speciаl probation” disposition contained in
As we recently explained:
For crimes of the first or second degree, there is a presumption of imprisonment,
N.J.S.A. 2C:44-1(d) , which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532-34 (1999). Thus, for such offenders, a regular probationarysentence is almost never appropriate under the Code‘s general sentencing prоvisions. Special probation is [a separate] authorized disposition under the Code. It is not contained in
N.J.S.A. 2C:43-2(b)(2) , but inN.J.S.A. 2C:35-14 . The term “special probation” first appeared in that section when it was amended in 1999. Meyer, supra, 192 N.J. at 434 . . . . [T]hаt amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition authorized by the Code.Sрecial probation is designed to divert otherwise prison-bound offenders into an intensive and highly specialized form of probation designed to “address in a new and innovative way the problem of drug-dependent offenders caught in a never-ending cycle of involvement in the criminal justice system.” Id. at 434-35. Thus, the Legislature created special probation as a disposition aimed specifically at prison-bоund offenders, who would not be eligible for regular probation.
[State v. Bishop, 429 N.J. Super. 533, 539-40 (App. Div.), certif. granted, 216 N.J. 14 (2013).]
Defendants admitted to Drug Court who are subject to sentencing with a presumption of incarceration1 are assigned to Track 1 and required to sеrve a period of “special probation” under
shall receive credit for any time served in custody pursuant to
N.J.S.A. 2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility.[
N.J.S.A. 2C:35-14(f)(4) .]
“[I]n determining the number of credits for time spent in a residential treatment facility, [the sentencing judgе] shall consider the recommendations of the treatment provider.” Ibid. In addition, a Track 1 defendant assigned to a treatment facility for “special probation” is “deemed to be subject to official detention for the purposes of
Defendants with drug abuse problems who are not subject to a presumption of incarceration are eligible for Drug Court under the general sentencing provisions of the Criminal Code pursuant to
In State v. Reyes, 207 N.J. Super. 126, 141-43 (App. Div.), certif. denied, 103 N.J. 499 (1986), which was decided prior to the adoption of
[a]lthough the program impose[d] restriction on personal freedom, the participant‘s abiding by them [was] voluntary. The program staff [did] not lock him in. Non-cooperation in activities and violation of restrictions produce greater restrictions, but [are] not themselves criminal conduct, do not subject the participant to arrеst, and departure is not the offense of escape.
Although unauthorized departure from a residential drug program may have serious consequences, the participant does retain the option to leave and incur those consequences. Attendance at such a program is not the equivalent of “custody” so long as there are no physical restraints and a participant retains thе option to leave without committing an additional crime.
[Id. at 144 (footnote and citations omitted).]
In partial reaction to that decision, State v. Clay, 230 N.J. Super. 509, 524-25 (App. Div. 1989), aff‘d o.b., 118 N.J. 251 (1990), the Legislature enacted
Applying the applicable law to the facts of this case, we conclude that the sentencing judge correctly determined that Stalter was not entitled to jail credit for time spent at Integrity House because, as a Track 2 participant in Drug Court, he was not sentenced to “special probation” pursuant to
We also reject the suggestion that there should be a remаnd to the Law Division for a hearing to determine whether Integrity House meets the requirements for jail credit set forth in Reyes. There is no factual basis in the record before us to suggest that it would. The fact that a Track 1 defendant can be sent to Integrity House for “special probation,” Drug Court Manual Appendix C, is irrelevant because a Track 1 defendant would be subject to a charge of escape for leaving the program without permission, whereas a Track 2 defendant would not.
Affirmed.
CLERK OF THE APPELLATE DIVISION