STATE OF NEW JERSEY v. MICHAEL STEWART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2966-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL STEWART,

Defendant-Appellant.

__________________________________________________

February 3, 2012

Submitted January 24, 2012 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-00991.

Michael Stewart, appellant pro se.

Robert L.Taylor, CapeMay County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted, pled guilty to third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and, on March 18, 2010, was sentenced to a five-year prison term, subject to an eighteen-month period of parole ineligibility. In this appeal, defendant argues that the trial court erroneously denied his motion to modify, pursuant to Rule 3:21-10(b)(1), so that he could enter a substance abuse rehabilitation program.

Defendant's motion was denied by order entered on December 2, 2010, and he appealed, arguing:

I. THE COURT FAILED TO CONSIDER TH[AT] [RULE] 3:21-10(b)(1) ALLOW[S] THE DEFENDANT TO ESTABLISH HIS ADDICTION WHICH CLEARLY REPRESENTED A "CHANGE OF CIRCUMSTANCES."

II. [THE TRIAL JUDGE] FAILED TO CONSIDER THAT THE DEFENDANT ESTABLISHED THE FOUR FUNDAMENTAL ELEMENTS THAT ARE REQUIRED FOR A CHANGE OF CUSTODY UNDER STATE V. McKINNEY.[1]

These arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

To obtain relief pursuant to Rule 3:21-10(b)(1), a defendant must demonstrate an addiction, an available treatment facility that is available and willing to accept the defendant, and the defendant s willingness to take advantage of the opportunity. McKinney, supra, 140 N.J. Super. at 163. These circumstances are present here but they alone do not require that relief be granted because a defendant must also show that the addiction constitutes a changed circumstance. State v. Kent, 212 N.J. Super. 635, 641-42 (App. Div.) (holding that "where a defendant's need for a drug or alcohol abuse program and the availability of that program are essentially the same when a motion for change of sentence is filed as at the time of original sentencing, the policy of finality of sentences should mandate denial of the motion"), certif. denied, 107 N.J. 65 (1986). Here, defendant s drug addiction was known at the time of sentencing and, indeed, defendant has not argued a change in circumstances. Accordingly, the judge acted within his discretion in denying the motion.

1State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976).