New NJ Appellate Decision on Drug Offender Restraining Orders is Important – for Other Reasons

The NJ Appellate Division recently decided the companion cases of State v. Fitzpatrick and State v. Brister.  These cases focus primarily on the statutory bar date prior to which the State must appeal from a trial court’s denial of the imposition of a Drug Offender Restraining Order, or DORO.  Although the discussion concerning this issue is important, the decision raises another problem which can potentially arise at any sentencing hearing that should be met with a defense objection.

Both defendants pleaded guilty to third degree drug charges and were sentenced to special terms of drug court probation in lieu of custodial terms in State prison.  At sentencing, the  prosecutor – for the very first time in either case – informed the Court and defense counsel that it would seek DOROs against each defendant.  Defense counsel objected to the DOROs because they were not mentioned at the time of the plea.  On December 2, 2014, after briefing and further argument, the trial court denied the imposition of a DORO in either case and sentenced each defendant to drug court probation as contemplated by the plea agreements.  On December 9, 2014, the trial court entered Orders granting the defense motions to preclude in imposition of DOROs in either case.  The State filed Notices of Appeal as to the denial of the DOROs on December 23, 2014.

The Appellate Division began its discussion by recalling that the purpose of a DORO is to prevent drug offenders from returning to the same location(s) where they previously traded in illegal drugs.  The Court also noted that because the State’s efforts to appeal a criminal sentence raise constitutional/double jeopardy concerns, the State can pursue such an appeal only when the sentence is illegal, or when it is expressly authorized by statute.  The DORO statute expressly authorized the State to appeal the denial of a DORO, but required that the Notice of Appeal had to be filed and served within 10 days.  The defendants were sentenced, and the DOROs were originally denied, on December 2, 2014.  The Notices of Appeal were not filed and served until December 23, 2014.  Because the State failed to comply with the statutory 10-day deadline, the Court dismissed the State’s appeals for lack of jurisdiction.

Because the Court disposed of the appeal on procedural grounds, it did not address any of the arguments that the parties raised on the merits.  Significantly, the defense argued that the State’s appeal should have been denied because the imposition of DOROs would have violated the plea agreements.  As noted above and in the decision, DOROs were not mentioned until the time of sentencing.  They were not discussed at the time of the plea hearings, and were not included in either defendant’s plea agreement.  Defense counsel argued – correctly – that the State cannot appear at sentencing with new terms and conditions that were not negotiated as part of the plea.

This situation seems to occur with disturbing frequency.  The State cannot be permitted to seek any new or additional terms or conditions at sentencing that were not previously negotiated at the time of the plea hearing and expressly included in the plea agreement.  If the State seeks to include a specific requirement in a sentence, it must make its wishes known at the appropriate time and in the correct way, and must afford the defendant the opportunity to respond to its request.  If this does not happen, then the plea is not truly negotiated; rather, it consists of a list of terms and conditions that can vary at the whim of the State.  This completely deprives a defendant of the certainty inherent in accepting a plea, as opposed to proceeding to trial.  Accordingly, defense counsel should typically object to any terms or conditions that were not arrived at through plea negotiations, but were requested for the first time at sentencing.

James S. Friedman LLC represents defendants accused of drug-related offenses in the State and Federal trial courts of New Jersey and New York.  If you or a member of your family want to discuss aggressive representation in a drug case, contact the firm today.

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