NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5674-12T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. May 27, 2015
APPELLATE DIVISION
ANTHONY F. STALTER,
Defendant-Appellant.
————————————————————————————————
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.
Jason A. Coe, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Coe, of counsel and on the
briefs).
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 contacted 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 pled guilty to an accusation charging
him with a single count of third-degree obtaining a controlled
dangerous substance by fraud. N.J.S.A. 2C:35-13. The plea
agreement provided for a one-year probationary term with thirty
days in jail as a condition of probation. The agreement further
provided that the State would not object to Stalter's
participation in the Sheriff's Labor Assistance Program. On
September 10, the plea judge imposed the recommended sentence.
2 A-5674-12T4
On January 26, 2012, Stalter pled guilty to violating the
terms of his probation by making a false report to a law
enforcement officer and testing positive for drugs. The latter
led to his termination from a drug rehabilitation program.
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 therapy 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
sentenced 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 was]
3 A-5674-12T4
sentenced under the general sentencing provisions," she was not
authorized to give jail credit "for the time [Stalter] spent
successfully completing Integrity House." This appeal followed.
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 Rule 3:21-8,
which provides that a "defendant shall receive credit on the
term of a custodial sentence for any time served in custody in
jail or in a state hospital between arrest and the imposition of
sentence." The State takes the position that his time at
Integrity House does not qualify under the rule. The State
concedes that a Track 1 offender in Drug Court would be entitled
to such credit for time spent in this type of residential
4 A-5674-12T4
rehabilitation program, but argues that a Track 2 offender, such
as Stalter, is not because there was no custodial aspect to the
program under Track 2. Alternatively, the State argues that
Stalter failed to demonstrate that there was a custodial
component to the program at Integrity House.
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 "special probation" disposition contained
in N.J.S.A. 2C:35-14, they are primarily the creation of our
Supreme Court under the Court's "ultimate constitutional
authority to administer our court system, including the drug
5 A-5674-12T4
court program," and are governed by the Drug Court Manual. Id.
at 424.
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 probationary sentence
is almost never appropriate under the Code's
general sentencing provisions.
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 in N.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]hat amendment,
together with subsequent amendments, set
special probation apart from regular
probation, rendering each a separate and
distinct sentencing disposition authorized
by the Code.
Special 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-bound
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).]
6 A-5674-12T4
Defendants admitted to Drug Court who are subject to
sentencing with a presumption of incarceration1 are assigned to
Track 1 and required to serve a period of "special probation"
under N.J.S.A. 2C:35-14. If a Track 1 defendant's "special
probation" is revoked and the defendant is sentenced to a term
of imprisonment, he or she
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 judge] 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 N.J.S.A. 2C:29-5
(escape)." N.J.S.A. 2C:35-14(d). As a result, unauthorized
departure from the program by Track 1 defendants can be
prosecuted as a separate crime, rather than just a violation of
probation.
1
First-degree offenders are not eligible for Drug Court.
7 A-5674-12T4
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 N.J.S.A. 2C:45-2. Drug Court Manual, supra, at 16. Stalter,
who had originally pled guilty to a third-degree offense, was
admitted to Drug Court's Track 2. He was sentenced to general
probation under N.J.S.A. 2C:45-1, rather than special probation
under N.J.S.A. 2C:35-14. As a result, neither the jail-credit
nor the escape provisions of N.J.S.A. 2C:35-14(d) were
applicable to him.
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 N.J.S.A. 2C:35-14, we held that a defendant
seeking jail credit for time spent at a residential drug program
must demonstrate that residence at the facility was
substantially equivalent to custody in jail or a state hospital.
We found no basis for an award of jail credit in that case, in
part, because,
[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 arrest,
and departure is not the offense of escape.
8 A-5674-12T4
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 the 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 N.J.S.A. 2C:35-14(f)(4) as part
of a more comprehensive drug reform program.2 However, as
previously noted, that statute criminalized departure from a
treatment facility and provided for jail credits for time spent
there only for defendants sentenced to "special probation" in
Drug Court's Track 1.
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 N.J.S.A.
2
That section was part of the Comprehensive Drug Reform Act of
1986, N.J.S.A. 2C:35-1 to -23.
9 A-5674-12T4
2C:35-14(f)(4). We reject Stalter's equal protection argument3
because, unlike a Track 1 defendant, he would not have been
subject to prosecution for escape had he left Integrity House
without permission.
We also reject the suggestion that there should be a remand
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.
3
See R. 2:11-3(e)(2).
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