                  NOT FOR PUBLICATION WITHOUT THE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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