The State argues defendant was convicted of second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, and was therefore subject to the presumption of incarceration. The State reasons that because the court imposed the non-custodial sentence of special probation Drug Court sentence for the second-degree offense, its appeal is expressly authorized. We disagree.
The State’s reliance on N.J.S.A. 2C:44-1(f)(2) is misplaced. Although the statute authorizes the State to appeal a non-custodial or probationary sentence for a first or second-degree offender, we find it does not authorize an appeal by the State where a court imposes a special probation Drug Court sentence pursuant to N.J.S.A. 2C:35-14.
When N.J.S.A. 2C:44-1(f)(2) was enacted in 1978, the only means by which first or second-degree offenders could be sentenced to a non-custodial or probationary sentence was if the court made the findings necessary under N.J.S.A. 2C:44-1(d) to overcome the presumption of incarceration. Thus, by granting the State the right to appeal a non-custodial or probationary sentence for a first and second-degree offender, the Legislature could have only intended to authorize the State to appeal a court’s determination under N.J.S.A. 2C:44-1(d) that “imprisonment would be a serious injustice which overrides the need to deter such conduct by others.”
Here, the court’s imposition of defendant’s Drug Court sentence did not require a determination under N.J.S.A. 2C:44-1(d). Defendant’s sentence was imposed under a separate statute, N.J.S.A. 2C:35-14, which was not enacted until nine years after N.J.S.A. 2C:44-1(f)(2). Imposition of a noncustodial Drug Court sentence under N.J.S.A. 2C:35-14 requires an analysis under a wholly different statutory standard. Because N.J.S.A. N.J.S.A. 2C:44-1(f)(2) was enacted to permit only an appeal of a court’s sentencing determination under N.J.S.A. N.J.S.A. 2C:44-1(d), we find it inapplicable to an appeal from a determination to impose a non-custodial Drug Court sentence.
This holding has great significance to drug court applicants. Drug Court prosecutors routinely reject applicants for bases that no longer apply because the related statutes are convoluted and too many attorneys do not have a handle on the present state of the law.
