Fred Sisto | Criminal Attorney | Ocean and Monmouth County

Call Us Today
732-898-3232

  • Home
  • Criminal Defense Services
    ▼
    • Drug Crimes
      ▼
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      ▼
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      ▼
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      ▼
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    ▼
    • Testimonials
    • Defending Cases In
      ▼
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    ▼
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
  • Home
  • Criminal Defense Services
    • Drug Crimes
      • Drug Manufacturing
      • Intent to Distribute Narcotics
      • Prescription Drug Crimes
      • Leader of Narcotics Trafficking Network
    • Weapons Charges
      • Prohibited Weapons and Devices
      • Manufacture, Transport, etc. of Weapons
      • Illegal Possession of a Gun
      • Possession of Weapons for Unlawful Purposes
    • Expungements
    • Theft Attorney
    • Violent Crimes
      • Robbery/Burglary
      • Manslaughter
      • Extortion
      • Assault
      • Sexual Offenses
    • Arson
    • DUI / DWI
      • Alcohol DUI
      • Drug DUI
      • Refusing a Breath Test
    • Driving with A Suspended License
    • Property Forfeiture
    • Anti-Drug Profiteering
    • Juvenile Delinquency
  • Español / Spanish Speaking Attorney
  • About
    • Testimonials
    • Defending Cases In
      • Monmouth County
      • Ocean County
  • Blog
  • Contact
    • Receive a Call From Fred
  • DUI Checkpoint Alerts
  • Results
  • Payment Options
Home >> State’s Drug Court Appeals: Part 2

January 5, 2018 by Fred Sisto

State’s Drug Court Appeals: Part 2

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.

Filed Under: Blog, Criminal Law, Drug Crime Tagged With: Appellate Court, Drug Crimes

Testimonials

Fred is a stickler for detail and communicates with clients very, very well. He is smart and astute. I would recommend him unconditionally.

Tom O   

I would highly recommend Mr. Sisto. He is very insightful and proficient, yet still down to Earth. Fred is great at communicating and breaking down the facts. But most importantly, he excels at getting results.

Bill K   

Thanks to Fred I have no criminal record whatsoever.

Luke A   

Great!!! , got my case handled in the exact manner that I was told and would recommend to everyone else in need of legal representation.

Raumelis R   
See More Testimonials

Recent Posts

  • Marijuana and Diversionary Programs (Part 4)
  • Marijuana and Diversionary Programs (Part 3)
  • Marijuana and Diversionary Programs (Part 2)
  • Marijuana and Diversionary Programs (Part 1)
  • Jurisdiction and Subsequent Prosecutions (Part 2)
  • Jurisdiction and Subsequent Prosecutions (Part 1)
  • Statutes of Limitations and DNA Evidence (Part 3)
  • Statutes of Limitations and DNA Evidence (Part 2)

Recent Speaking Engagement

Site Disclaimer

Attorney Referral Fees

Frederick P Sisto has earned Lawyer Legion's recognition for Community Leadership
 
Top Criminal Defense Attorney in Brick

Law Office of Frederick P. Sisto

Point Pleasant Office*:
302 Hawthorne Ave, Suite 1
Point Pleasant Beach, NJ 08742

Brick Township Office*:
223 Drum Point Road, Suite 1
Brick Township, NJ 08723

Sea Girt Office*:
2150 NJ-35,
Suite 225
Sea Girt, NJ 08750

Phone: 732-898-3232
Fax: 201-508-3393
*Office visits by appointment only.

Representing clients throughout all court jurisdictions of New Jersey.

WITH THE EXCEPTION OF THE CRIMINAL TRIAL ATTORNEY CERTIFICATION, NO ASPECT OF THIS ADVERTISEMENT HAS BEEN APPROVED BY THE SUPREME COURT OF NEW JERSEY

en English
en Englishes Spanish