Opinion
DOCKET NO. A-3062-13T2
07-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM E. NAZARIO, Defendant-Appellant.
Robert Rogers argued the cause for appellant (Rogers & Krajewski, attorneys; Mr. Rogers, on the briefs). Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-09-1631.
Robert Rogers argued the cause for appellant (Rogers & Krajewski, attorneys; Mr. Rogers, on the briefs).
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, on the brief). PER CURIAM
Defendant William E. Nazario was indicted for fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). The statute criminalizes the operation of "a motor vehicle during the period of license suspension . . . if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A.] 39:4-50. . . ." The statute provides that: "[a] person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment." Subsection (c) specifies the minimum that must be served: "[I]f a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole." Because of the mandatory jail term, defendant was denied admission to the Monmouth County Drug Court program. We granted leave to appeal and now affirm.
The record does not include the circumstances surrounding the stop which resulted in the indictment, however, during defendant's Drug Court interview, he said "that his driver's license ha[d] been suspended for at least one year due to his third driving while intoxicated while currently on his second suspension for the same charge." Defendant was evaluated as clinically eligible for participation in the program, but statutorily ineligible by the assistant county prosecutor who reviewed his application. N.J.S.A. 2C:35-14b(3) states that "[a] person shall not be eligible for special probation pursuant to this section if the person is convicted of . . . a crime, other than that defined in [N.J.S.A. 2C:35-7, Controlled Dangerous Substances Near or On School Property], for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law."
On February 4, 2014, Judge Honora O'Brien Kilgallen ruled that although the "ultimate decision as to whether or not a [d]efendant should be admitted into Drug Court rests on the sound discretion of the court," in this case no such discretion existed if defendant wished to substitute the program for the mandatory 180-day jail term under N.J.S.A. 2C:4-26(c). She commended defendant "for recognizing his need for treatment to combat his alcohol addiction," noted that he had been found to "suffer[] from alcohol dependency," and observed "that the [d]efendant would benefit from substance abuse treatment and monitoring."
As the judge explained, however, even if no danger to the community would result from admitting defendant into Drug Court, her "discretion" was "restricted due to the mandatory imprisonment term which follows a driving with [ ] suspended license." Therefore, she could not "substitute the mandatory 180-day jail term with special probation Drug Court." Recognizing defendant was a "viable candidate," the judge indicated that should he serve his mandatory jail term and wish to be admitted to the Drug Court program thereafter, she "would have no objection to that."
Defendant unsuccessfully argued to Judge Kilgallen that because his county of residence would have admitted him into its Drug Court program, Monmouth County's rejection would result in unconstitutional disparate treatment. On appeal, defendant again contends that the fact that at least one other county grants this category of offenders admission into Drug Court results in an impermissible disparity which warrants reversal.
Admission into Drug Court is authorized for applicants who meet the requirements for special probation, N.J.S.A. 2C:35-14, not relevant in this case, or for "second track" applicants eligible for probation under the general sentencing provisions of the Code of Criminal Justice. State v. Clark, 203 N.J. 166, 174-76 (2010); State v. Meyer, 192 N.J. 421, 434-35 (2007). In this case, the judge had to impose jail time, thus defendant is eligible for Drug Court only after completing the mandatory jail term while serving a subsequent term of probation.
In State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006), a defendant challenged as unconstitutionally disparate treatment, violative of equal protection, that some counties admitted defendants convicted of a third or subsequent driving while intoxicated, N.J.S.A. 39:4-50, into their work release programs, while his county did not. The conviction requires service of a jail term of no less than 180 days. We concluded that the judge's refusal to allow work release because N.J.S.A. 39:4-50(a)(3) did not expressly permit it as an alternative to incarceration was an entirely rational, and therefore constitutional, basis for the decision. Id. at 515. If anything, if a disparity existed, those counties allowing third-time offenders work release "must cease, consistent with our construction of the statute." Id. at 516.
The statute does permit ninety days of the sentence to be served "in a drug or alcohol inpatient rehabilitation program . . . ." N.J.S.A. 39:4-50(a)(3).
In a second case where a defendant was required to serve 180 consecutive days as a third-time offender under N.J.S.A. 39:4-50, as opposed to serving the time through the Sheriff's Labor Assistance Program (SLAP), we have similarly held that the denial was appropriate. See State v. Kotsev, 396 N.J. Super. 389, 391-92 (App. Div.), certif. denied, 193 N.J. 276 (2007). A court can only construe the sentence of a term of imprisonment to mean the person remains in county jail without recourse to alternative programs unless the statute specifically permits it. Ibid.
The judge in this case correctly denied defendant's application for admission to the Drug Court program because the alternative is simply unavailable, regardless of admissions by another county. Since probation alone is not an alternative under the statute, neither is Drug Court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION