(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 15, 1997 -- Decided January 11, 1999
STEIN, J., writing for a unanimous Court.
Michael Soricelli and two others were stopped in their car by police in Paramus on July 18, 1993. The
police discovered phencyclidine (PCP) and cocaine. Soricelli was indicted for second-degree possession of PCP
with intent to distribute and other charges. In March 1994, Soricelli pled guilty to the second-degree offense;
the other charges were dismissed as a part of the plea agreement.
The State agreed to recommend that Soricelli receive a maximum five-year prison term. Any sentence
Soricelli would receive for being in violation of an existing probationary sentence was to run concurrently with
the sentence in this matter.
The pre-sentence report disclosed that Soricelli had made a "poor adjustment" to probation in 1992.
In fact, he had tested positive for drugs six times between July and October 1993.
In December 1993, Soricelli completed a fourteen-day in-patient drug treatment program in Rhinebeck,
New York. Between March 1994 and his sentencing in October 1994, Soricelli received out-patient therapy and
attended five to seven meetings per week of Alcoholics Anonymous and Narcotics Anonymous.
The sentencing judge imposed a five-year probationary term conditioned on out-patient counseling, drug-urine testing, and employment. The court found that the probationary sentence was appropriate notwithstanding
the presumption of incarceration that accompanies a second-degree criminal offense.
The State appealed. The Appellate Division reversed and remanded the matter for resentencing, holding
that despite Soricelli's commendable efforts at rehabilitation, a prison sentence would not constitute a "serious
injustice" overriding the need for deterrence. In the absence of such a finding, the court had no discretion to
avoid imposing a prison term.
Soricelli appeared before the same trial judge for resentencing in the fall of 1995. In the meantime,
Soricelli had completed his out-patient treatment and had purchased a pizzeria (with a loan from his mother).
Soricelli was off public assistance and had continued his child-support payments.
The sentencing judge equated Soricelli's eighteen months on probation to the six-month in-patient
treatment exception to incarceration provided by N.J.S.A. 2C:35-14. Accordingly, he resentenced Soricelli to a
probationary term of three-and-a-half years, conditioned on continued counseling.
The State again appealed. In a split decision, the Appellate Division held that the trial court had
properly exercised its limited discretion in sentencing Soricelli to probation because his imprisonment would be
a serious injustice in the light of his rehabilitation. The dissenting judge argued that rehabilitation is not a factor
that can overcome the presumption of incarceration.
Because of the split in the Appellate Division, the State appealed as of right to the Supreme Court.
HELD: Notwithstanding defendant's rehabilitation from his drug dependence, his plea to a second-degree drug
offense requires a custodial sentence under the presumption of incarceration found in N.J.S.A. 2C:44-1(d). As
currently written, the alternative to incarceration contained in N.J.S.A. 2C: 35-14 is not available to rehabilitated
drug offenders.
1. Prior cases have made it clear that it is extremely difficult to overcome the presumption of incarceration that
accompanies a second-degree offense. (pp. 11-14)
2. The Drug Reform Act authorizes the rehabilitation of certain drug dependent persons through the use of
probation and a six-month in-patient program as an alternative to a prison term (N.J.S.A. 2C:35-14). That
statutory provision applies to second-degree offenders. (pp. 14-19)
3. It is clear that the rehabilitation of drug offenders is a significant objective of the Drug Reform Act. The
alternative to incarceration, however, is limited to drug-dependent persons. Ironically, this means that Soricelli's
rehabilitation renders him ineligible for an alternative sentence under the Act. Logically, an alternative to
incarceration should be available for totally rehabilitated drug offenders, subject to discretionary determinations
by the prosecutor and sentencing court. The Court commends the issue to the Legislature for its consideration.
(pp. 19-21)
4. During oral argument, the State informed the Court that subject to an updated pre-sentence report, the State
would not object to a sentence of Soricelli to a term appropriate for a third-degree crime, noting that Soricelli
has been on probation since 1994. The court also notes the potential availability of the Intensive Supervision
of Probation (ISP) program. (pp. 21-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for resentencing.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
142 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL SORICELLI,
Defendant-Respondent.
Argued September 15, 1998 -- Decided January 11, 1999
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
302 N.J. Super. 193 (1997).
John J. Scaliti, Assistant Prosecutor, argued
the cause for appellant (William H. Schmidt,
Bergen County Prosecutor, attorney).
Teresa A. Blair, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey, (Peter Verniero,
Attorney General, attorney).
Jodi L. Ferguson, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney).
The opinion of the Court was delivered by
STEIN, J.
Based on the dissent below, the State appeals to this Court
as of right, R. 2:2-1, from a judgment of the Appellate Division
affirming the Law Division's resentencing of defendant to a three
and one-half year probationary sentence based on defendant's
guilty plea to second-degree possession of phencyclidine (PCP)
with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1)
and 5(b)(7), and his guilty plea to a violation of probation for
a prior offense involving possession of PCP. State v. Soricelli,
302 N.J. Super. 193, 197-98 (App. Div. 1997). In an earlier
unpublished opinion, a different panel of the Appellate Division
reversed the Law Division's imposition of a five-year
probationary sentence on defendant for the same offenses,
concluding that defendant's apparently successful rehabilitation
from his drug addiction did not overcome the statutory
presumption of incarceration for second-degree offenses, see
N.J.S.A. 2C:44-1(d), and remanding the matter for resentencing.
On remand, the Law Division again imposed a probationary sentence
that was affirmed by the judgment from which this appeal is
taken.
Primarily, we consider whether defendant's sentence to a
probationary term for second-degree possession of PCP with intent
to distribute is inconsistent with the statutory presumption of
imprisonment for offenders convicted of first- and second-degree
crimes. Secondarily, we consider the relevance of a second-degree drug offender's apparent rehabilitation in the context of
both the statutory presumption of incarceration and the
Legislature's determination in the Comprehensive Drug Reform Act
of 1987, L. 1987, c. 106 (Drug Reform Act), N.J.S.A. 2C:35-1 to
-23, that under prescribed circumstances second-degree drug
offenders may be sentenced to five-year probationary terms in
conjunction with a placement for at least six months in a drug
rehabilitation program in the custody of a residential treatment
facility. N.J.S.A. 2C:35-14.
The factual basis for defendant's negotiated plea to second-degree possession of PCP with intent to distribute was based on
events occurring on July 18, 1993, when defendant was returning
to New Jersey from New York City with his two co-defendants, John
Gadonniex and Michael Cacchio. Defendant knew that Cacchio
possessed a quantity of PCP that he had purchased in Manhattan
for his own use and to share with friends. Gadonniex was driving
and defendant was in the front passenger seat when local police
stopped their car in Paramus. Cacchio threw some of the drugs,
which were in a cigarette pack, into the front seat. Defendant
placed the pack in the front of his pants to conceal them from
the police. Although asserting his intention to return the drugs
to Cacchio, defendant acknowledged that by concealing the drugs
he acted as an accomplice to Cacchio. In addition to the four
packets of PCP found in the cigarette box on defendant's person,
the police found five more packets in a ripped portion of the
vehicle's front seat, and ten packets in the patrol car in which
defendant was transported separately to police headquarters.
Defendant was indicted for second-degree possession of PCP
with intent to distribute, two counts of third-degree unlawful
possession of PCP, third-degree unlawful possession of cocaine,
and two counts of hindering apprehension. In March 1994,
defendant pled guilty to second-degree possession of PCP with
intent to distribute in exchange for the State's recommendation
to dismiss the remaining counts of the indictment and to impose a
maximum sentence of five-years imprisonment without a period of
parole ineligibility. Because defendant already was serving a
probationary term for a 1992 conviction for possession of PCP, he
acknowledged that the current offense constituted a violation of
probation and the State agreed to recommend that the sentences
for both those offenses run concurrently.
Defendant's pre-sentence report reflects a "poor adjustment
to Probation" prior to his arrest in July 1993, and refers to six
occasions between July and October 1993 on which defendant tested
positive for drug use. After being arrested again in October
1993 for violating probation, defendant's probation officer
informed him that he needed long-term treatment to overcome his
drug dependency.
In December 1993, defendant completed a fourteen-day in-patient drug treatment program at the Rhinebeck Lodge for
Successful Living in Rhinebeck, New York. He then attended
after-care counseling sessions at the Ulster County Mental Health
Center. Between March 1994 and the imposition of sentence in
October 1994, defendant received individual therapy as an out-patient at Bridge Back Drug Rehabilitation Center (Bridge Back)
in Kingston, New York, where he also participated in an early
recovery group, an alcohol awareness group, and a relapse
prevention group. One of Bridge Back's counselors reported that
defendant tested negative on all of his urine drug screen tests
between March and May 1994, and also attended five to seven
meetings per week of Alcoholics Anonymous or Narcotics Anonymous.
At defendant's sentencing hearing, defendant acknowledged a
longstanding substance abuse problem that led to the loss of his
home and business and the deterioration of his marriage. He
described his in-patient and out-patient rehabilitation programs
at Rhinebeck Lodge and Bridge Back, and stated that he regularly
attended Alcoholics Anonymous and Narcotics Anonymous meetings,
was paying child support for his young daughter, and was employed
part-time. He informed the court that he had not used drugs or
alcohol since November 1993. Defendant's brother and his New
York attorney corroborated defendant's progress toward a
successful rehabilitation. Diane Zines, defendant's addiction
counselor at Bridge Back, informed the court that defendant had
completed the basic six-month rehabilitation program and
continued to attend all required individual and group sessions.
She characterized his outlook as "very positive" and verified
that all of his drug-urine test results were negative. Ms. Zines
stated that defendant would require approximately one additional
year of individual and group counseling.
After adjourning the imposition of sentence for two weeks to
acquire additional information concerning defendant's compliance
with the Bergen County Probation Department's reporting
requirements, the sentencing judge imposed a five-year
probationary sentence conditioned on out-patient counseling,
drug-urine testing, employment, and any other counseling required
by the Probation Department. In imposing sentence the court
referred to N.J.S.A. 2C:35-14, which permits trial courts to
sentence certain drug-dependent offenders to a residential in-patient rehabilitation program for not less than six months as an
alternative to prison. The court acknowledged that defendant's
past and future treatment did not comply with that statute.
Nevertheless, the court determined that a probationary sentence
was appropriate:
We have a second-degree offense which carries
a presumption of incarceration [under
N.J.S.A. 2C:44-1(d)], extremely difficult if
not impossible to overcome in this situation.
How could he overcome that? He can't, he
cannot. However, we do have a statute
[N.J.S.A. 2C:35-14] that says if someone has
a drug problem that can go into a -- in lieu
of State Jail, a long term in-patient program
which is defined as a six-month in-patient
drug program. Now probation probably asked,
the State asked why did Judge Gaeta continue
this? Is he going to put him on probation on
a second degree offense? Maybe. I don't
know what I was going to do at first because
I did see some signs that maybe he was coming
around, basically, in May and June and I
wanted to see if he was but I still cannot
ignore what happened before, I cannot ignore
that. We had a violation of probation, we
had another offense that was committed so
what do I do? What do I do with someone[]
who is well on his way to -- I think now
being rehabilitated, if I were to just go on
the aggravating and mitigating factors here
and says yep, he's amenable to probation,
he's doing well which I believe he is doing
now, is that enough to overcome the
presumption in this particular circumstance?
And I say that I'm clearly convinced that the
mitigating factors substantially outweigh the
aggravating? I don't think so. The
interests of justice that he should be placed
on probation, no, we do have a statute that
addresses these types of problems. The
question is how do we get around the six
months. I think what he's done and what he's
going to continue to do is going to satisfy
me that he will continue with his
rehabilitation.
The court also imposed a $2,000 DEDR penalty, a $50
laboratory fee, a $50 VCCG assessment, and suspended defendant's
driver's license for six months. The court continued defendant's
probationary status on his prior drug offense for an additional
five years.
The State appealed. After transferring the appeal from its
sentencing calendar to the plenary calendar and ordering the
filing of briefs on the interrelationship between the presumptive
sentencing requirements of N.J.S.A. 2C:44-1(d) and the
residential drug treatment program authorized by N.J.S.A. 2C:35-14, the Appellate Division reversed and remanded for
resentencing. The court observed that, pursuant to N.J.S.A.
2C:35-14(c), "a drug dependent defendant sentenced to probation
for a second degree crime must be placed in a residential program
for a minimum term of six months. The plain language of the
statute could not be clearer." The court noted that the
presumption of imprisonment in N.J.S.A. 2C:44-1(d) can be
overcome only if the sentencing court determines that
incarceration would result in "serious injustice" that overrides
the need to deter, a standard that confers a "residuum of power"
in sentencing judges but is exercisable only in extraordinary
circumstances where "the human cost of such deterrence . . . is
too great." State v. Roth,
95 N.J. 334, 358 (1984)(quoting State
v. Harris,
70 N.J. 586, 596 (1976)). Relying on State v.
Jarbath,
114 N.J. 394, 407 (1989), the panel observed that
enhancement of a defendant's prospects for rehabilitation was not
the type of circumstance that could override the need for
deterrence.
Noting defendant's prior drug conviction and his
probationary status when he committed the instant offense, the
court concluded that, notwithstanding defendant's commendable
efforts at rehabilitation, a prison sentence would not constitute
a serious injustice overriding the need for deterrence. We
denied defendant's petition for certification.
143 N.J. 518
(1996).
Approximately eighteen months after his initial sentence,
defendant appeared before the same Law Division judge for
resentencing pursuant to the Appellate Division's remand.
Defendant submitted to the court a report from his New York
probation officer that confirmed that defendant had completed his
out-patient treatment at Bridge Back and had continued to produce
negative drug-urine tests. The probation officer noted that in
the intervening months defendant had purchased a pizzeria and no
longer received public assistance benefits. Her letter stated
that "Soricelli is an exemplary probationer who continues to gain
the optimum benefits from Probation supervision."
Defendant's New York attorney informed the court that
defendant had continued his child-support payments and regularly
visited his four-year old daughter. He also confirmed that
defendant had purchased a pizzeria in Kingston, New York, with
the assistance of a loan from his mother. The attorney
represented that if defendant were incarcerated his mother
intended to relocate from Florida to New York to manage the
business.
The sentencing court noted that it "would be justified in
placing him in a long-term in-patient program at this time, but
he no longer, according to what we've heard, is using drugs. . .
. But I think the 18 months that he spent on [] probation and in
the program, and what he's accomplished, equates to what someone
could do in [a] six-month in-patient program." The court
concluded that, in view of defendant's apparent rehabilitation,
incarceration would constitute an injustice that outweighs the
interest in deterrence. Accordingly, he resentenced defendant to
three and one-half years probation, conditioned on continuation
of out-patient counseling.
The State again appealed. In a published opinion, a divided
panel of the Appellate Division held that the sentencing court's
limited discretionary authority was appropriately exercised in
concluding that defendant's imprisonment could constitute a
serious injustice in view of his successful rehabilitation from
drug addiction, his responsible employment in his own restaurant,
and his steadfast assumption of his child-support and visitation
obligations concerning his four-year old daughter. Soricelli,
supra, 302 N.J. Super. at 196-98. The dissenting member
disagreed, observing that rehabilitation is not a factor that
should overcome the presumption of incarceration for second-degree offenders, and that in any event the evidence of
rehabilitation before the court was essentially anecdotal and a
current investigative report was mandatory. Id. at 203-05. The
dissenting member also was critical of the sentencing judge's
"defiance" of the determination by the prior Appellate Division
panel that defendant's incarceration was obligatory. Id. at 207.
The controlling legal principles are well settled. First-and second-degree crimes carry a presumption of incarceration.
N.J.S.A. 2C:44-1(d) provides, in pertinent part:
The court shall deal with a person who has
been convicted of a crime of the first or
second degree by imposing a sentence of
imprisonment unless, having regard to the
character and condition of the defendant, it
is of the opinion that his imprisonment would
be a serious injustice which overrides the
need to deter such conduct by others.
Unlike a mandatory sentence, the presumption of incarceration
confers "a residuum of power in the sentencing court not to
imprison in those few cases where it would be entirely
inappropriate to do so." Roth, supra, 95 N.J. at 358 (quoting II
Final Report of the New Jersey Criminal Law Revision Commission,
Commentary at 326). We have adhered to the view that the narrow
statutory standard -- "imprisonment would be a serious injustice
which overrides the need to deter such conduct by others" -- is
satisfied only in "truly extraordinary and unanticipated
circumstances," Roth, supra, 95 N.J. at 358 (quoting Fair and
Certain Punishment, Report of the Twentieth Century Fund Task
Force of Criminal Sentencing (1976)).
This Court regularly has declined to find circumstances
sufficient to constitute "serious injustice" that would overcome
the presumption of incarceration. See, e.g., State v. Rivera,
124 N.J. 122, 126-27 (1991)(reversing suspended sentence -
equivalent of non-custodial sentence -- where defendant pled
guilty to second-degree robbery despite fact that defendant was
drug addicted); State v. Johnson,
118 N.J. 10, 19 (1990)(holding
that defendant failed to establish that imprisonment would be
serious injustice overriding need for deterrence despite
defendant's deafness, drug and alcohol problems, and role as wage
earner for family where defendant pled guilty to first-degree
aggravated sexual assault of stepdaughter); State v. Jabbour,
118 N.J. 1, 8-9 (1990)(holding that although incarceration carried
high risk of [his] never overcoming his present emotional
difficulties and achieving normalcy, defendant's weak physical
and psychiatric condition did not distinguish him from other sex
offenders and that imprisonment would not be serious injustice
that overrode need to deter others); State v. Kelly,
97 N.J. 178,
219-20 (1984)(holding that five-year sentence for battered woman
convicted of reckless manslaughter for killing husband not
excessive; defendant's abuse at the hands of man she murdered and
her children's need to have their mother at home were not truly
extraordinary circumstances).
The only decision by this Court determining that the
"serious injustice" standard was satisfied is Jarbath, supra,
114 N.J. 394. There, a mentally retarded young woman charged with
the murder of her nineteen-day old son pleaded guilty to a
reduced charge of second-degree manslaughter. The factual
predicate for the plea was that the baby had died after defendant
twice accidentally dropped him on a coffee table. The trial
court sentenced her to an indeterminate custodial term not to
exceed seven years. The Appellate Division, taking into account
her significant mental and emotional disabilities, the fact that
she had been severely abused by other prison inmates on a daily
basis, and that because of her retardation imprisonment did not
serve as a deterrent, resentenced her as a third-degree offender
to a five-year probationary term conditioned on psychiatric care,
isolation from young children, and other appropriate protective
conditions. Id. at 399. In affirming the Appellate Division's
resentencing determination, this Court stated:
Defendant's deficient mental and
emotional condition were relevant not only to
her culpability but also to her capacity to
assimilate punishment. Both courts found
that the crime was unintentional. There was
little evidence to suggest that defendant
could comprehend that she had committed a
crime that deserved a prison term, or that
she could modify her behavior based on her
imprisonment. In addition, defendant did not
have the understanding or emotional strength
of relatively normal persons. She apparently
could not endure life in prison without
unusual suffering, that is, hardship and
privation greatly exceeding that which would
be accepted and endured by ordinary inmates
as the inevitable consequences of punishment.
In sum, as determined by the Appellate
Division, the "serious injustice" of
imprisonment under these circumstances
clearly outweighs the needs of general
deterrence.
Without specifically addressing the implications of N.J.S.A.
2C:35-14, the provision in the Comprehensive Drug Reform Act of
1987 that authorizes as an alternative to incarceration a
residential treatment program for convicted drug offenders,
including second-degree offenders if the prosecutor consents, our
precedents heretofore have not recognized the goal of
rehabilitation as a factor to be emphasized in determining
whether the "serious injustice" standard for overcoming
presumptive prison sentences is satisfied. See Jabbour, supra,
118 N.J. at 8 ("Prospects for rehabilitation do not justify a
reduced penalty."); Jarbath, supra, 114 N.J. at 407 ("It is,
nevertheless, clear under the Code that rehabilitation is not the
goal to be achieved by a consideration of the character and
condition of the offender."). Those pronouncements concerning
rehabilitation merit reevaluation in the context of the
Legislature's authorization of residential treatment as an
alternative to incarceration for certain convicted drug
offenders.
The Drug Reform Act, which first authorized residential
treatment for certain drug offenders, was precipitated by a
comprehensive evaluation of the problem of drug use and
distribution throughout the State issued by Governor Thomas Kean
in October 1986, and entitled Blueprint for a Drug-Free New
Jersey (Blueprint). That report acknowledged that "there is a
gross deficiency in the number of treatment facilities available
in New Jersey to drug abusers," noting that "there are currently
less than 700 beds available for long-term treatment for both
adults and adolescents in New Jersey." Blueprint, supra, at 19-20. The report stated: "The current dearth of residential and
out-patient treatment facilities in New Jersey cannot be allowed
to continue." Id. at 20.
The report also addressed the likelihood that the Governor's
proposed initiatives for harsher punishment for drug offenders
would exacerbate the State's problem of prison overcrowding,
observing that "[w]e cannot insist upon the strict enforcement of
new drug laws without providing the means by which violators can
be punished and rehabilitated." Id. at 30. Among the
alternatives proposed for alleviating prison overcrowding and
housing drug offenders was the establishment of intensively
supervised residential treatment centers. Id. at 28-30.
Six months later the Legislature enacted and the Governor
signed the Drug Reform Act, described as an act that "makes a
sweeping revision of New Jersey's drug laws, creates several new
offenses, and adopts a number of innovative provisions designed
not only to target the most dangerous offenders, but also to
provide meaningful rehabilitative opportunities for certain other
offenders." Assembly Judiciary Committee Commentary to the
Comprehensive Drug Reform Act, November 23, 1987 (Reform Act
Commentary). The Reform Act Commentary also emphasized that
among the most significant "highlights" of the Drug Reform Act
was a provision to
[a]uthorize the rehabilitation of certain
drug dependent persons convicted of specific
offenses during a five-year period of
probation. Such rehabilitation includes
mandatory periodic urinalysis and a minimum
of six months confinement to a residential
treatment facility. This provision would
also establish strict revocation procedures
to ensure compliance with the program and the
safety of the community.
The Reform Act Commentary also includes a detailed summary
of N.J.S.A. 2C:35-14, the provision that authorizes residential
treatment for certain drug offenders:
This section provides for rehabilitative
treatment as an alternative to incarceration
in appropriate cases. A defendant's
eligibility for admission into a
rehabilitation program under this section,
and the standards governing his or her
continued participation in such a program,
are carefully prescribed.
Specifically, a person who has been
convicted of a first degree offense is
ineligible for admission into a
rehabilitative program. A person convicted
of N.J.S.A. 2C:35-7 or 2C:35-6 is also
ineligible for rehabilitative treatment under
this section unless the prosecutor joins in
the defendant's application for admission.
In such cases, the court would have no
discretion to admit the defendant into a
rehabilitation program over the prosecutor's
objection. Similarly, any person convicted
of a drug distribution offense who had
previously been convicted of a distribution
offense would not be eligible for
rehabilitative treatment unless the
prosecutor joins in application.
While probation under current law may
ordinarily be imposed for any length of time
not to exceed five years, probation under
this section, can only be imposed for a
fixed, five year term. As a condition of
probation, and in addition to any other
conditions which may be imposed by the court,
the section mandates that the defendant enter
a drug rehabilitation program approved for
such purposes by the court. As part of this
program, the defendant must submit to
periodic urine testing for drug use
throughout the five year probationary period.
Such procedures will ensure that a defendant
placed on probation under this section will
not be able to conceal continued drug usage.
Subsection c. of this section mandates
that a person convicted of a second degree
crime or convicted under N.J.S.A. 2C:35-7 who
is placed in a drug rehabilitation program
under this section must be committed to a
residential treatment facility for a minimum
of six months. This section further provides
that the period of commitment to a
residential treatment program cannot exceed
five years. This section provides clear
notice that a defendant who leaves a
residential treatment facility without
authorization is subject to a charge of
criminal escape as defined at N.J.S.A. 2C:29-5.
Upon successful completion of the
required residential treatment program, the
defendant must fulfill the remaining period
of the five years of probation with credit
for time served in the residential facility
and for any incarceration in a county jail or
correctional facility which may have been
imposed and served as a condition of
probation.
Subsection d. prescribes the procedures
to be followed for revoking a defendant's
placement into a rehabilitation program.
Specifically, this subsection provides that
where a defendant violates any term or
condition of probation, the court may, in its
discretion, revoke the defendant's probation
and sentence the defendant to any custodial
term which might originally have been
imposed.
If the court elects not to revoke
defendant's probation upon a first violation,
and the defendant is again found to have
violated any term or condition of the
probation, the court must revoke the
defendant's probation on that subsequent
violation and proceed to sentence the
defendant to the term which could originally
have been imposed. The court upon a second
violation of probation would have no
discretion to continue the defendant's
participation in the rehabilitation program.
Where the defendant's probation pursuant
to this section is revoked for any reason, it
is intended that the defendant would be
resentenced to a custodial term, since the
defendant would no longer be eligible for
rehabilitative treatment and because it would
be inappropriate to place the defendant on
regular probation which generally is less
restrictive than the rehabilitation program
contemplated by this section. It is
intended, in this regard, that a revoked
defendant would be resentenced to prison.
This section expressly provides that
where the defendant's participation in a
rehabilitation program is revoked, he will
thereafter be ineligible for release from
prison under the Intensive Supervision
Program (ISP) administered by the courts.
Release into that program would be
inappropriate where the defendant has already
abused the opportunity for rehabilitative
treatment and judicial lenity afforded to him
pursuant to this section.
Subsection e. of this section, finally,
authorizes the court, after considering the
defendant's financial resources, to require
him to pay for all or any portion of the
costs associated with his participation in
any rehabilitation program or period of
residential treatment authorized or mandated
by this section.
[Reform Act Commentary, supra, at 29-31.]
The conclusion is inescapable that rehabilitation of drug
offenders is a significant objective of the Drug Reform Act and
that the goal of rehabilitation is of sufficient importance in
appropriate cases to overcome the presumption of incarceration
applicable to second-degree drug offenders. To date, however,
the legislative authorization of residential drug treatment as an
alternative to incarceration is limited only to "drug dependent"
defendants with respect to whom the sentencing court finds that
the drug treatment "placement will serve to benefit the defendant
by serving to correct his or her dependency on controlled
substances." N.J.S.A. 2C:35-14(a). No alternative to
incarceration is authorized for second-degree offenders such as
defendant who, based on the anecdotal evidence before the
sentencing court, appears to have successfully overcome his
addiction as a result of residential and out-patient treatment
over an extended period. Ironically, if defendant's drug
rehabilitation were incomplete or less successful he would appear
to be an appropriate candidate for a five-year probationary
sentence conditioned on commitment to a residential drug
treatment rehabilitation facility for a minimum of six months,
pursuant to N.J.S.A. 2C:35-14. Defendant's apparent
rehabilitation, however, renders him ineligible for that sentence
and no legislatively authorized alternative sentence, except as
later discussed herein, has been established.
We commend the issue to the Legislature for its
consideration because its authorization of treatment rather than
incarceration for certain unrehabilitated offenders suggests that
an alternative to incarceration logically should be available,
subject to discretionary determinations by the prosecutor and
sentencing court, for totally rehabilitated drug offenders. See
Final Report of the Supreme Court Task Force on Drugs and the
Courts (April 1991), at 51 (noting that critics of Comprehensive
Drug Reform Act believe that treatment rather than mandatory
incarceration is a more constructive sentencing disposition for
drug offenders amenable to rehabilitation). Without affording
the Legislature an adequate opportunity to address the issue, we
will not construe N.J.S.A. 2C:44-1(d) as authorizing non-custodial sentences for unique second-degree drug offenders that
demonstrate complete rehabilitation from a prior drug dependency.
Cf. State v. Cannon,
128 N.J. 546, 559-60, 564-67 (1992)(stating
that "[t]he judiciary does not determine the punishment for
crimes. That is up to the Legislature," and holding that
application of Intensive Supervision [of Probation] Program for
first- and second-degree offenders is inconsistent with N.J.S.A.
2C:44-1(d)). Accordingly, we hold that on remand a custodial
sentence is mandatory.
During oral argument of this appeal the State informed the
Court that, subject to review of an updated pre-sentence report,
the State would not object to a sentence of defendant on remand
to a term appropriate for a third-degree crime, pursuant to
N.J.S.A. 2C:44-1(f)(2), noting that defendant had been serving a
probationary sentence since 1994. The State observed that at
defendant's last sentencing hearing it had agreed to recommend a
custodial sentence of five years without a parole ineligibility
term, and would not have objected to a flat three-year sentence
if the court had exercised its discretionary authority pursuant
to N.J.S.A. 2C:44-1(f)(2). In our view, assuming that the court
makes the requisite findings and that a current pre-sentence
report confirms the representations made to the sentencing court
concerning defendant's rehabilitation, the court's exercise of
its authority on remand pursuant to N.J.S.A. 2C:44-1(f)(2),
particularly with the State's concurrence, would be an
appropriate exercise of discretion. Cf. State v. Megargel,
143 N.J. 484, 505 (1996)(holding that standard for downgrading
offense for sentencing purposes requires that court be clearly
convinced that mitigating factors substantially outweigh
aggravating factors and that, in addition, separate compelling
reasons exist so that downgrade serves "interest of justice").
We also note the potential availability to defendant of the
Intensive Supervision Program (ISP) established pursuant to R.
3:21-10(b). Pursuant to N.J.S.A. 2C:43-11, defendants convicted
of second-degree crimes are now eligible for entry into ISP, but
the state prohibits second-degree offenders from entering ISP
prior to serving at least six months of the custodial sentence
and being within nine months of parole eligibility if the county
prosecutor or Attorney General objects in writing. We infer that
in defendant's case the county prosecutor and the Attorney
General would consider carefully the merits of an ISP application
by defendant prior to those statutory time frames and would not
unreasonably interpose an objection. Although defendant appears
to present qualities that are consistent with admission into ISP,
see Cannon, supra, 128 N.J. at 552-55, we express no view on his
ultimate qualification for the program.
We reverse the judgment of the Appellate Division and remand
the matter to the Law Division for resentencing to an appropriate
custodial term.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-142 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL SORICELLI,
Defendant-Respondent.
DECIDED January 11, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
CONCURRING/DISSENTING OPINION BY