NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(App. Div. 2011) (quoting Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan,

(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,

, 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,

(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,

, 539- 40 (App. Div.), certif. granted,

(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."

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,

(App. Div.),

certif. denied,

(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,

(App. Div. 1989), aff'd o.b.,

(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).

10 A-5674-12T4