State’s Drug Court Appeals: Part 5

by Fred Sisto | Jan 11, 2018 | Blog, Criminal Law, Drug Crime

In its imposition of defendant’s Drug Court sentence, the court did not apply the presumption of incarceration under N.J.S.A. 2C:44-1(d), nor could it. The court never made findings permitting defendant to overcome the presumption of incarceration, and the court was not required to do so. To the contrary, defendant was sentenced pursuant to N.J.S.A. 2C:35-14, which provides an exception to the presumption of incarceration.

Unlike N.J.S.A. 2C:44-1(f)(2), which permits the State to appeal a court’s determination overcoming the presumption of incarceration under N.J.S.A. 2C:44-1(d), N.J.S.A. 2C:35-14 does not include any authorization for the State to appeal a defendant’s Drug Court sentence. In our view, the absence of such statutory authorization requires the conclusion that the State lacks the requisite authority to appeal.

While this language is helpful to drug court applicants, it appears to be an unintentional over-statement. The State would almost certainly have the authority to appeal, for example, a defendant charged with murder being entered into Drug Court in violation of the plain language of factor (7).

The State argues N.J.S.A. 2C:44-1(f)(2), authorizes it to appeal any non-custodial or probationary sentence for a first or second-degree offender. Acceptance of the State’s reasoning would permit the State to appeal every special probation Drug Court sentence because a special probation Drug Court sentence under N.J.S.A. 2C:35-14 may be imposed only on defendants who are “ineligible for probation due to convictions for crimes subject to the presumption of incarceration.” The legislative history of N.J.S.A. 2C:35-14, however, undermines the State’s position.

A 1999 amendment to N.J.S.A. 2C:35-14 expressly authorized the State to appeal the imposition of a special probation Drug Court sentence under certain circumstances. The amendment provided that a defendant convicted of “any crime for which there existed a presumption of imprisonment” was ineligible for special probation if the State objected to the sentence. The statute, however, provided that a court could sentence a person who committed an offense for which there was a presumption of imprisonment to special probation, if the court found the State’s objection constituted a “gross and patent abuse of prosecutorial discretion.” Where the court sentenced a defendant to special probation Drug Court over the State’s objection, the amendment expressly authorized the State’s right to appeal.

      Excellent rating  
 Based on 288 reviews 
    
  
 
 
      Great that Fred posts DUI for Monmouth County!
     David F 
 
 
 
 
    Very good Lawyer , easy to work with . Gets results !
     William C 
 
 
 
 
    I am very appreciative of all of the time and effort Fred his given to my case. It was a pleasure having him help me. Fred always was there to answer any messages about questions or concerns. If there were any fears i had as as well, Fred is responsive and helped mitigate any anxiety I had regards to your legal matter. In terms of knowledge of the law, he can explain and elaborate everything perfectly in a manner anyone can understand so you aren't caught off guard by anything in your legal situation. Fred as your lawyer allows for transparency which is needed for you as a client because it allows you to properly fathom the situation at hand and allows Fred to help you understand realistic outcomes for your situation. As a client, that is what you want to see from your lawyer so they clearly have your best interests at hand. That is a great attribute Fred has. Lastly, Fred helped me get everything dropped. I would recommend Fred because hes personable, his expertise, his array of legal knowledge, his legal experience and background, and he contains attributes you need in a lawyer to get you the best outcome.
     Matthew F 
 
 
 
 
    Mr. Sisto and his entire staff were courteous, professional and got our case handled quickly and to the best outcome.  Great lawyer.  Highly recommend.
     Bryan B 
 
 
 
 
    I had the pleasure of dealing with Mr Sisto personally from beginning to end. He was very Professional,  very clear with his communication and acted quickly to find a solution to my particular issue. I HIGHLY recommend Frederick P Sisto to any and all who need an amazing and hard working attorney...
     Eddie B 
 
 
 
 
    Hired Mr.Sisto to handle a case of mine a couple of months ago and while the service was okay the customer service was awful. When I had inquired about a charge I was unsure of on my bill, Mr. Sisto immediately got defensive and had the unprofessionalism to ask me if I “was high” for asking this question. I wonder if Mr. Sisto asks all of his clients this question or only the ones who have jobs in the cannabis industry? Regardless, I don’t believe this was an appropriate question to ask, regardless of the industry one works in, and therefore Mr. Sisto needs to heavily work on his customer service.

Edit: Mr. Sisto had the UNPROFESSIONALISM to reach out to my family and ask them to ask me to take down my review instead of reaching out directly towards me when it was I who was his client, not my family. Clearly speaks to the unprofessionalism surrounding this practice. This has not been the only time Mr.Sisto has gone directly to my family instead of me, his client, for important legal matters and I will not seek out his services again.

For those who may not understand Spanish, the email starts with “You should speak to your daughter regarding the review she has just published.”

Edit to Response: As an attorney, one should be able to make appropriate questions and comments regardless if a client is “uncooperative” or “disrespectful.” The fact that rather than apologizing for the awful interaction with your firm, and I was not released  “within hours” as you claim shows how low value your firm is and how you openly  instead chose to harass my family through email for my initial review rather than actually revomy case which I ended up doing and you chareged me for . Regardless of results, your character speaks volumes and anyone who reads this would know better than to give their money to an awful person such as yourself. What a shame
     Ximena C 
 
 
 
 
    Mr. Sisto did an absolutely fantastic job on my case. He achieved the best possible result for me, and really made me feel comfortable and that he had my best interest at heart. He kept in constant communication with me, was very prompt in his response to my calls and emails, and he went above and beyond in answering any and all questions that I had. His professionalism and the lengths to which he went to secure a good result for me really helped make a stressful situation feel better. If you ever find yourself in need of legal representation, I highly recommend Fred Sisto. You will not regret it.
     Michael G 
 
 
 
 
    Helped with my issues timely manner and continued constant communication to make sure I was aware of any changes or issues that arose.
     Whick 3 
 
 
 
 
    Fred was excellent and helped my son deal with a issue in PPB, despite being a long distance away.  He is very thorough and knows how to navigate the ins and outs of the local legal waters.
     Bruces 
 
 
 
 
    I called Mr. Sisto a few weeks back and he returned the call immediately!  I asked a few questions and he clearly explained the options for one of my employees.  He then followed up with a detailed proposal.  He was completely knowledgeable, helpful and insightful.  If I ever had to use him I would feel VERY comfortable with his representation.
     Dave P