Opinion
DOCKET NO. A-3806-13T3
07-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SARAH MURRAR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 12-06-1386 and 13-04-0767. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Sarah Murrar appeals from the June 18, 2013 denial of her application to Drug Court. The trial court based its denial on the mandatory incarceration provision of the fourth-degree charge against defendant of driving while suspended for a second or subsequent driving while intoxicated conviction, N.J.S.A. 2C:40-26(c). We affirm.
Defendant was also charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), in a separate indictment, and in a third indictment, Indictment No. 11-06-1034, with the fourth-degree crime of giving a false police report to incriminate another, N.J.S.A. 2C:28-4(a) (amended 2016). Defendant applied to the Ocean County Drug Court special probation program. See N.J.S.A. 2C:35-14. The State initially objected and defendant was denied admission. She appealed to the trial court, at which time the Assistant Prosecutor changed his mind and agreed to defendant's admission into the program. The court, however, denied her application on the basis that she was not eligible pursuant to N.J.S.A. 2C:35-14(b)(3), which states:
Indictment No. 11-06-1034 was not provided to us on appeal, nor does defendant appeal from her disorderly persons conviction resulting from this indictment.
This statute was subsequently amended to charge a third-degree crime. See Assemb. B. 1972, 216th Leg. (N.J. 2014).
Defendant was participating in pre-trial intervention, Rule 3:28, for this indictment when she committed the new charges.
b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:
. . . .
(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; . . . .
N.J.S.A. 2C:35-7 concerns mandatory sentencing for distribution of illegal drugs on or within 1000 feet of school property.
Defendant subsequently pled guilty to the disorderly persons offense of giving a false police report, N.J.S.A. 2C:28-3(b), as well as the crimes of driving while suspended and possession of heroin. She preserved her right to appeal the denial of Drug Court. On August 23, 2013, defendant was sentenced to concurrent sentences of 180 days in the county jail and three years of probation on both the possession of heroin and the driving while suspended charges, as well as the mandatory monetary sanctions. She received only monetary sanctions on the disorderly persons offense. After defendant completed the 180-day sentence, on April 28, 2014, she filed a notice of appeal and a motion to file an appeal out of time, which we granted.
Defendant was also charged with two drug-related disorderly persons offenses that were dismissed as part of the plea agreement.
We note that the court did not approve this reservation of the right to appeal as required by Rule 3:9-3(f). See State v. Davila, 443 N.J. Super. 577, 586-87 (App. Div. 2016).
Neither party addresses the issue of whether this appeal is now moot. Defendant has completed her sentence of 180 days and, after three years, has likely completed her probationary term. Thus, it is not clear what relief she is seeking. "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1984), aff'd o.b., 204 N.J. Super. 630 (App. Div. 1985)).
Defendant raises the following issue on appeal:
This appeal was transferred to the plenary calendar from the excessive sentence oral argument calendar. See State v. Bianco, 205 N.J. Super. 462, 467 (App. Div. 1985), aff'd, 103 N.J. 383 (1986) (describing the appellate excessive sentence oral argument program). --------
POINT I: THE TRIAL COURT ERRED IN RULING THAT DEFENDANT WAS NOT ELIGIBLE FOR PARTICIPATION IN THE DRUG COURT PROGRAM BECAUSE OF THE MANDATORY JAIL SENTENCE SHE FACED UNDER N.J.S.A. 2C:40-26.
Defendant argues in her brief she was drug-dependent, would have benefitted from Drug Court, and all three branches of government have clearly "recognized the success and value of the Drug Court program." She also argues the New Jersey Criminal Code permits her admission into Drug Court. She states in her brief, "[i]t is illogical to permit violent offenders into Drug Court while prohibiting entry by nonviolent offenders like defendant."
While acknowledging the mandatory incarceration requirement of N.J.S.A. 2C:40-26(c), the State consented to defendant's admission into Drug Court on defendant's appeal before the trial court. The Supervising Assistant Prosecutor stated that his office "took a look at it" and "under the circumstances . . . the State would reconsider and allow the defendant [in]to drug court, notwithstanding the mandate of 180 days." On appeal, after our two recent opinions clarifying that the mandatory 180 days may only be satisfied by incarceration in jail, the State now argues that Drug Court was not available to defendant. See State v. Harris, 439 N.J. Super. 150, 160 (App. Div.) (holding that the mandatory 180-day incarceration cannot be served in home detention or community service programs), certifs. denied, 221 N.J. 566 (2015); State v. French, 437 N.J. Super. 333, 338-39 (App. Div. 2014) (holding that the 180-day incarceration period is not satisfied by an in-patient drug rehabilitation program), certif. denied, 220 N.J. 575 (2015). Defendant argues that these two cases were wrongly decided. We disagree.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION