STATE OF NEW JERSEY VS. SARAH MURRAR

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. 11-06-1034,1 with the

fourth-degree2 crime of giving a false police report to

incriminate another, N.J.S.A. 2C:28-4(a) (amended 2016).3

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:

b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:

. . . .

1 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. 2 This statute was subsequently amended to charge a third-degree crime. See Assemb. B. 1972, 216th Leg. (N.J. 2014). 3 Defendant was participating in pre-trial intervention, Rule 3:28, for this indictment when she committed the new charges.

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(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:357[4]), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; . . . .

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.5 She preserved her right to appeal the

denial of Drug Court.6 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,7 on April 28, 2014, she filed a

4 N.J.S.A. 2C:35-7 concerns mandatory sentencing for distribution of illegal drugs on or within 1000 feet of school property.

5 Defendant was also charged with two drug-related disorderly persons offenses that were dismissed as part of the plea agreement.

6 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).

7 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 (continued)

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notice of appeal and a motion to file an appeal out of time,

which we granted.

Defendant raises the following issue on appeal:8

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

(continued) '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)).

8 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).

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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).