STATE OF NEW JERSEY VS. KASON D. HOCKETT A-2820-13T2

STATE OF NEW JERSEY VS. KASON D. HOCKETT 

A-2820-13T2 

The trial judge excluded defendant's offer and use of evidence that would have challenged the credibility of the State's chief eyewitness to the alleged murder because the judge believed the evidence was obtained through questionable or unscrupulous means. The court reversed and remanded for a new trial, holding that how defendant acquired the evidence had no bearing on its admissibility and that its exclusion — and the limitation the ruling placed on cross-examination of the eyewitness — was clearly capable of producing an unjust result. 

STATE OF NEW JERSEY VS. IRIS QUINTERO A-2186-13T4

STATE OF NEW JERSEY VS. IRIS QUINTERO 

A-2186-13T4 

We affirm defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement. 

We hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, we note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details. 

State v. Howard Jones (A-112-13

State v. Howard Jones (A-112-13; 073827) 

In determining the reliability of evidence obtained through a suggestive showup identification procedure, extrinsic evidence of guilt should play no role in the determination of the evidence’s admissibility. A reliability assessment must restrict its focus to the accuracy and trustworthiness of the specific identification. In this matter, the showup was impermissibly suggestive, and evidence from that showup was assessed for reliability under an erroneous analysis. Defendant’s conviction is reversed and the matter is remanded for new proceedings. 

DWI Refusal notice withstands challenge State v Quintero

DWI Refusal notice withstands challenge  

State v Quintero __ NJ Super __(App. Div. 2016)

The court affirm defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.

The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2186-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IRIS QUINTERO,

Defendant-Appellant.

——————————————————————————————

Before Judges Hoffman, Leone and Whipple.1

On appeal from Superior Court of New Jersey,

Law Division, Union County, Municipal Appeal

No. 6050.

The opinion of the court was delivered byHOFFMAN, J.A.D.

1 Judge Whipple did not participate in oral argument. She joins

the opinion with counsel's consent. R. 2:13-2(b).

January 27, 2016

APPROVED FOR PUBLICATION

January 27, 2016

APPELLATE DIVISION

A-2186-13T4 2

Defendant appeals from her de novo conviction for refusal

to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant

argues that her conviction should be vacated because the

Attorney General's current standard statement under N.J.S.A.

39:4-50.2(e) is fundamentally deficient for not specifying the

mandatory minimum penalties for refusal. For the reasons that

follow, we affirm.

I.

On December 7, 2012, defendant consumed several vodka and

cranberry juice cocktails before driving her vehicle in Roselle

Park. Defendant's tire blew out, but she continued driving on

the tire rim until the Roselle Park Police finally stopped her.

After defendant failed street sobriety tests, the officer

transported her to police headquarters. There, defendant

refused to submit to a breath test, even after the officer read

the standard statement2 indicating the consequences if she did

not take the breath test.

The officer charged defendant with driving while

intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a

2 The full text of the "N.J. Attorney General's Standard

Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e))

(rev. & eff. July 1, 2012)" can be found at

http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standardst

atement.pdf.

A-2186-13T4 3

breath test, N.J.S.A. 39:4-50.4a,3 and careless driving, N.J.S.A.

39:4-97. In the Roselle Park Municipal Court on February 28,

2013, defendant pled guilty to DWI and entered a conditional

guilty plea to the refusal charge, reserving her right to

challenge the sufficiency of the standard statement on appeal.4

On the DWI charge, the court imposed a $406 fine, $33 in court

costs, a $200 DWI assessment, a $75 Safe Neighborhood Services

Fund assessment, a $50 Violent Crimes Compensation Board

penalty, twelve hours of Intoxicated Driver Resource Center

classes, and a three-month license suspension to run concurrent

with the refusal sentence. On the refusal charge, the court

sentenced defendant to a $506 fine, a $100 DWI assessment, $33

in court costs, seven-month loss of license, and six months with

an ignition interlock. The court stayed the refusal portion of

the sentence pending de novo appeal to the Law Division.

On October 28, 2013, Judge Regina Caulfield found defendant

guilty and imposed the same sentence for defendant's refusal

conviction. The judge memorialized her decision in a November

27, 2013 order, which further stayed the refusal sentence

pending this appeal.

3 The e-ticket for this charge incorrectly listed the violated

statute as N.J.S.A. 39:4-50.2; however, this mistake has not

been raised as an issue in the instant appeal.

4 The court dismissed the careless driving charge.

A-2186-13T4 4

Defendant presents the following issue in this appeal:

THE CHARGE OF REFUSAL TO SUBMIT IS

FUNDAMENTALLY FLAWED. THE NEW JERSEY MOTOR

VEHICLE STANDARD STATEMENT READ TO QUINTERO

FAILED TO "INFORM [QUINTERO] OF THE

CONSEQUENCES OF REFUSING TO SUBMIT" AS

REQUIRED BY [N.J.S.A. 39:4-50.2(e)].

II.

On this appeal, we do not review the fact-findings of the

Law Division, which are generally entitled to our deference.

State v. Johnson, 42 N.J. 146, 158-59 (1964). Rather, we review

the court's legal determination regarding the sufficiency of the

standard statement. Where, as here, the issues turn on purely

legal interpretations, our review is plenary. State v. Adubato,

420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209

N.J. 430 (2012).

A.

New Jersey's drunk-driving legislation is designed "to curb

the senseless havoc and destruction caused by intoxicated

drivers." State v. Marquez, 202 N.J. 485, 496 (2010) (quoting

State v. Tischio, 107 N.J. 504, 512 (1987)). "To improve

enforcement efforts and address the high rate of refusal by

motorists who declined to submit to blood-alcohol tests, the

Legislature in 1966 enacted the implied consent law, N.J.S.A.

39:4-50.2, and the refusal law, N.J.S.A. 39:4-50.4a." State v.

O'Driscoll, 215 N.J. 461, 472-73 (2013) (citing Marquez, supra,

A-2186-13T4 5

202 N.J. at 497). Accordingly, all motorists on New Jersey

roads are "deemed to have given . . . consent" to a breath test

under the implied consent law. Id. at 473 (citing L. 1966, c.

142, § 2 (codified as amended at N.J.S.A. 39:4-50.2)).

The implied consent law was amended in 1977 to require that

"[a] standard statement, prepared by the chief administrator,

shall be read by the police officer to the person under arrest"

to inform him or her of the consequences of refusing to submit

to a breath test. N.J.S.A. 39:4-50.2(e). In 2009, the

responsibility for the promulgation of that statement was

transferred to the Attorney General. 41 N.J.R. 2825(a). Our

Supreme Court has explained that "the refusal statute requires

officers to request motor vehicle operators to submit to a

breath test; the implied consent statute tells officers how to

make that request." Marquez, supra, 202 N.J. at 501. Marquez

also identified the elements of a refusal conviction:

(1) the arresting officer had probable cause

to believe that defendant had been driving

or was in actual physical control of a motor

vehicle while under the influence of alcohol

or drugs; (2) defendant was arrested for

driving while intoxicated; (3) the officer

requested defendant to submit to a chemical

breath test and informed defendant of the

consequences of refusing to do so; and (4)

defendant thereafter refused to submit to

the test.

[Id. at 503 (citations omitted).]

A-2186-13T4 6

Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e),

the Attorney General's current standard statement (revised and

effective July 1, 2012), to be read to motor vehicle operators

to inform them of the consequences of refusing to submit to a

breath test, provides, in pertinent part:

5. If you refuse to provide samples of

your breath, you will be issued a

separate summons for the refusal. A

court may find you guilty of both

refusal and driving while intoxicated.

6. If a court finds you guilty of the

refusal, you will be subject to various

penalties, including license revocation

of up to 20 years, a fine of up to

$2000, installation of an ignition

interlock, and referral to an

Intoxicated Driver Resource Center.

These penalties may be in addition to

penalties imposed by the court for any

other offense of which you are found

guilty.

B.

Defendant contends that the Attorney General's standard

statement is defective because it does not inform motorists of

the mandatory minimum penalties. In particular, defendant

argues that the standard statement "does not adequately explain

and delineate the penalties for a refusal conviction" because

the statement explains the license loss exposure as "license

revocation of up to 20 years." This is problematic, defendant

argues, because "defendant was not told that she would face a

A-2186-13T4 7

license loss for a minimum of seven months" and that "up to 20

years can mean anywhere between 0 days to 20 years." Similarly,

defendant argues that the standard statement is flawed because

it explains that defendant will be subject to "a fine of up to

$2000" while failing to mention that a defendant's first refusal

offense is "not less than $300 or more than $500 for a first

offense." See N.J.S.A. 39:4-50.4a. The statement is similarly

flawed, defendant continues, because it merely mentions the

"installation of an ignition interlock," while the refusal

statute mandates an ignition interlock for a first offender for

"not less than six months or more than one year." See N.J.S.A.

39:4-50.17(a)(1).

Our Supreme Court has previously recognized that "as a

question of law, the authority to define the contents of the

Standard Statement vests in the Executive Branch, as delegated

by the Legislative Branch." State v. Schmidt, 206 N.J. 71, 87

(2011); see also Marquez, supra, 202 N.J. at 511 ("The executive

branch, and not the courts, is best-equipped to respond to those

concerns and still satisfy the statutory command to inform

. . . motorists of the consequences of refus[al] . . . .

We defer to the executive branch agency . . . to fashion a proper

remedy . . . .") (internal quotation marks and citation omitted).

A-2186-13T4 8

Recently the issue of whether the standard statement was

defective, "because it does not inform drivers of the mandatory

minimum period of time their license will be suspended if they

refuse," was brought to our Court's attention. O'Driscoll,

supra, 215 N.J. at 480. However, because this issue was raised

by an amicus curiae, the Court in its discretion "[did] not

opine in any way on the content of the current statement." Id.

at 479-80. O'Driscoll, however, still can illuminate the

current issues and provide some guidance with respect to the

standard statement at issue.

In O'Driscoll, our Court reinstated a DWI defendant's

refusal conviction after determining that the misinformation

provided to him was inconsequential and consisted of minor

discrepancies that were not material to the defendant's decision

to refuse the breath test. Id. at 479-80. In particular, the

police officer mistakenly read from an outdated form and told

the defendant that if he refused, the minimum period of license

revocation was six months, not seven; the minimum fine was $250,

not $300; and the maximum fine was $1000, not $2000. Id. at

465. The officer, however, did correctly tell defendant that

his license could be revoked for up to twenty years. Ibid. The

Court held that the officer's mistakes were inconsequential, and

that the officer informed defendant "of the consequences of

A-2186-13T4 9

refusal in a manner that should have impelled a reasonable

person to comply." Id. at 479. In particular, the Court

continued, it was "difficult to see how the minor discrepancies

in this case could have influenced [defendant's] decision."

Ibid. As such, "courts are to examine whether a defendant

reasonably would have made a different choice and submitted to a

breath test had the officer not made an error in reciting the

statement. An immaterial variation from the standard form does

not require reversal of a conviction for refusal." Id. at 466.

With this guidance, we agree with Judge Caulfield that the

standard statement is sufficient, and we affirm defendant's

refusal conviction. Defendant's argument that she was not given

an accurate picture of the penalties she faced as a first-time

offender lacks merit. Rather, as Judge Caulfield observed:

It defies logic to assume that defendant[,]

having refused a breath test knowing that

she could be fined up to $2,000 and lose her

license for 20 years[,] would have submitted

to a . . . breath test, if she was told her

license might be revoked for only seven

months with a fine of only $500.

We are satisfied that the current standard statement satisfies

the statutory mandate — that is, informing motorists and

impelling compliance — by adequately informing drivers of the

maximum potential license revocation and fine, and the

possibility of ignition interlock, that they face for refusal.

A-2186-13T4 10

In so ruling, we note that adding other details, including the

differing mandatory minimum and maximum penalties for first

offenders, second offenders, and certain third offenders, may

run the risk of submerging the most significant penalties in

those details. Such a statement could confuse persons who are

suspected of being under the influence, whose number of prior

offenses may be unclear, and dilute the persuasive effect that

is a central purpose of the standard statement.

Moreover, defendant, having refused after being informed of

the maximum penalties, has not shown that she "reasonably would

have made a different choice and submitted to a breath test" had

additional information been provided. O'Driscoll, supra, 215

N.J. at 466. It is implausible that defendant would have

submitted to the breath test if informed of mandatory minimums

for a first offender. Accordingly, we conclude that the current

standard statement is not defective for failing to inform

drivers of the mandatory minimum penalties for refusal. The

standard statement provides sufficient information for drivers

to make an objectively reasonable choice on whether to submit to

a breath test.

Affirmed.

Criminal Mischief 2C:17-3 damages tangible property of another

Criminal Mischief 2C:17-3 damages tangible property of another

Consequences of a criminal conviction

J.B. VS. NEW JERSEY STATE PAROLE BOARD/ L.A. VS. NEW JERSEY STATE PAROLE BOARD/ B.M. VS. NEW JERSE

J.B. VS. NEW JERSEY STATE PAROLE BOARD/ L.A. VS. NEW JERSEY STATE PAROLE BOARD/ B.M. VS. NEW JERSEY STATE PAROLE BOARD/ W.M. VS. NEW JERSEY STATE PAROLE BOARD/ R.L. VS. NEW JERSEY STATE PAROLE BOARD 

A-5435-10T2/A-1459-11T2/A-2138-11T3/A-3256-11T2/ 

A-1385-15T2 

Appellants and intervenor Public Defender challenge the practices of the New Jersey State Parole Board in administering polygraph examinations periodically to released sex offenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"), N.J.S.A. 2C:43-6.4. The challengers argue that such polygraphs violate their rights under various provisions of the United States and New Jersey Constitutions. They also contend that the agency's use of polygraphs, which have been declared unreliable evidence in our courts of law, is unreasonable, arbitrary, and capricious. 

Based upon the extensive record of factual and expert testimony in hearings conducted before the trial court pursuant to our referral under Rule 2:5-5(b), we reject appellants' categorical attempt to invalidate all polygraph testing conducted by the Parole Board. We find ample support in the record for the trial court's finding that such testing reasonably can assist parole officers and treatment professionals in making better-informed decisions as to supervision and treatment. 

Our validation of polygraph testing in this discrete PSL/CSL context is subject to certain important provisos. Given persisting concerns about polygraph accuracy, we conclude that the Parole Board may not use machine-generated "technical" polygraph results in any evidential manner to support imposing sanctions or increased restrictions on the monitored individuals. That does not, however, preclude the evidential use of the substance of any admissions or other statements made by the offenders at a polygraph session. 

We also hold that the Parole Board must enhance its regulations and practices to safeguard an offender's right to invoke his constitutional privilege against self-incrimination in responding to any questions 

STATE OF NEW JERSEY VS. CECILIO DAVILA A-6302-11T3

STATE OF NEW JERSEY VS. CECILIO DAVILA 

A-6302-11T3 

Defendant entered into a negotiated guilty plea, reserving the right to appeal a pre-trial motion relating only to a dismissed count of the indictment. The majority holds that a defendant's appeal of a pre-trial motion relating only to a dismissed count is moot. To afford this defendant every benefit of his plea agreement, the merits of his claim that insufficient evidence was presented to the grand jury are nevertheless addressed and his conviction affirmed. 

Judge Gilson concurs with the majority, but disagrees with the mootness holding, reasoning that defendant properly reserved his right to appeal pursuant to Rule 3:9-3(f). 

STATE OF NEW JERSEY VS. ERNEST JONES A-5383-13T1

STATE OF NEW JERSEY VS. ERNEST JONES 

A-5383-13T1 

Defendant Ernest Jones was sentenced to community supervision for life (CSL) in 2000 following his conviction for second-degree sexual assault. After his release from prison in 2002, defendant was convicted eight times of violating the 

conditions of his CSL. Consequently, in 2012, the Parole Board subjected defendant to GPS monitoring as a condition of his CSL, pursuant to the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95. SOMA was enacted effective August 6, 2007, and governs the continued monitoring of serious and violent sexual offenders. violent sexual offenders. 

Shortly thereafter, defendant purposely removed his tracking device. Following a jury trial, defendant was convicted of fourth-degree violation of CSL, N.J.S.A. 2C:43-6.4d. Defendant was not charged with third-degree offenses under statutes criminalizing violations of SOMA. 

For the first time on appeal, defendant argues that the GPS monitoring program retroactively enhances the penal consequences of his existing CSL sentence and thereby violates the Ex Post Facto clauses of the Federal and New Jersey Constitutions. Distinguishing Riley v. New Jersey State Parole Board, 219 N.J. 270 (2014), we conclude that the GPS monitoring did not materially increase defendant's punishment, and that the Parole Board had the authority to impose it as a condition of his CSL sentence. We also find that defendant was afforded adequate notice and the opportunity to be heard before GPS monitoring was imposed. We therefore reject defendant's ex post facto and due process arguments and affirm his conviction. 

STATE OF NEW JERSEY VS. REGINALD ANTHONY A-2658-12T3

STATE OF NEW JERSEY VS. REGINALD ANTHONY 

A-2658-12T3 

Rule 3:17(a) provides that, "[u]nless one of the exceptions set forth in paragraph (b) are present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with" certain listed crimes, including murder. However, subsection (b)(vi) excepts from the recordation requirement "a statement . . . given at a time when the accused is not a suspect for the crime to which that statement relates while the accused is being interrogated for a different crime that does not require recordation[.]" 

In this case, defendant was arrested on an open motor vehicle warrant and interrogated regarding a homicide. The preliminary interrogation was not recorded, but, at some point, after concluding based on defendant's statements that he was a suspect in the homicide, investigators recorded his statement on video. The trial judge denied defendant's motion to suppress the statement and concluded there was no obligation to record the initial portion of the interrogation. 

We construe the somewhat ambiguous provisions of the Rule and conclude that an interrogation must be recorded if, taking into account the totality of the circumstances then known to the interrogator, a reasonable police officer would have a reasonable basis to believe defendant was a "suspect" in the crime about which he was being questioned. In this case, we conclude that the trial judge properly determined that the investigators reasonably concluded that defendant was not a suspect when the interrogation began. 

STATE OF NEW JERSEY VS. F.W. A-1635-13T3

STATE OF NEW JERSEY VS. F.W. 

A-1635-13T3  We affirmed defendant's conviction for fourth-degree violating Community Supervision for Life (CSL), a provision that existed at the time defendant committed the sex offenses for which he was sentenced to CSL. Because defendant committed the sex offenses before the Sex Offender Monitoring Act (SOMA) was enacted, the Ex Post Facto Clause barred defendant's prosecution for third-degree SOMA crimes. We did not decide defendant's alternate argument that imposing GPS monitoring for life was so punitive as to violate the Ex Post Facto Clause in his case. 

We noted that the CSL statute appears to authorize GPS monitoring as a means of enforcing CSL under appropriate circumstances, including where an offender violates the terms of his CSL. The Parole Board has adopted regulations which provide for GPS monitoring of CSL offenders under defined circumstances and limited time frames, and give offenders a due process right to challenge the monitoring requirement. Nothing in our opinion would preclude the Board from applying those regulations to defendant now that he has been released from prison. 

State v. Howard Jones (A-112-13;

State v. Howard Jones (A-112-13; 073827) 

In determining the reliability of evidence obtained through a suggestive showup identification procedure, extrinsic evidence of guilt should play no role in the determination of the evidence’s admissibility. A reliability assessment must restrict its focus to the accuracy and trustworthiness of the specific identification. In this matter, the showup was impermissibly suggestive, and evidence from that showup was assessed for reliability under an erroneous analysis. Defendant’s conviction is reversed and the matter is remanded for new proceedings. 

State v. Robert Goodwin (A-20-14

State v. Robert Goodwin (A-20-14; 074352) 

A person violates the insurance fraud statute, N.J.S.A. 2C:21-4.6(a), even if an insurance carrier is not induced by that person’s false statement to pay a damage claim. 

State v. Julius Smith (A-62-13; 073059)

 State v. Julius Smith (A-62-13; 073059) 

The trial court abused its discretion in declining to grant a mistrial, particularly in light of the materiality of the evidence that surfaced midtrial, defendant’s inability to investigate it while the trial proceeded, and the nature and strength of the evidence against defendant. 

Violation of Drug Court permits court to impose extended sentence STATE of New Jersey, Plaintiff–Respondent, v. Darryl BISHOP,

Violation of Drug Court permits court to impose extended sentence

STATE of New Jersey, Plaintiff–Respondent, v. Darryl BISHOP, Defendant–Appellant.

State of New Jersey, Plaintiff–Respondent, v. Wilberto Torres, Defendant–Appellant.

    Decided: February 27, 2013

Before Judges SIMONELLI, KOBLITZ and LISA. John Douard, Assistant Deputy Public Defender, argued the cause for appellants Darryl Bishop and Wilberto Torres (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs). Joie Piderit, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Attorney General of the State of New Jersey in A–0048–11 and A–1399–11 (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). Pinilis Halpern, LLP, attorneys for amicus curiae Association of Criminal Defense Lawyers of New Jersey in A–0048–11 and A–1399–11 (Jeffrey S. Mandel, of counsel and on the brief). main body

The opinion of the court was delivered by

These cases1 require determination of the principles applicable to resentencing a defendant whose special probation pursuant to N.J.S.A. 2C:35–14 has been permanently revoked.2 Defendants Darryl Bishop and Wilberto Torres argue that the trial court erred in resentencing them for their underlying convictions of possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, N.J.S.A. 2C:35–7, to extended terms of imprisonment with a parole disqualifier pursuant to N.J.S.A. 2C:43–6f. Relying on cases applicable to resentencing after a revocation of “regular” probation pursuant to N.J.S.A. 2C:45–3b, defendants contend that the sentences they received are impermissible because the prosecutor, by consenting to their initial special probation sentence, irrevocably waived the right to seek such a sentence upon permanent revocation of special probation.

We disagree with defendants. We hold that mandatory periods of parole ineligibility and mandatory extended term provisions that existed at the time of original sentencing survive during the term of special probation and remain applicable at the time of resentencing upon permanent revocation of special probation. Accordingly, we affirm.

I.

Both defendants pled guilty to possession with intent to distribute heroin within one thousand feet of school property, N.J .S.A. 2C:35–7. Both defendants had been previously convicted of drug offenses that rendered them eligible for mandatory extended terms, if requested by the prosecutor, pursuant to N.J.S.A. 2C:43–6f.

Pursuant to plea agreements in both cases, the prosecutor consented to defendants being sentenced to Drug Court, more particularly, to special probation pursuant to N.J.S.A. 2C:35–14a, for which defendants met all eligibility criteria. Each plea agreement recommended a sentence of special probation, but also provided for an “alternate sentence” of seven years imprisonment with a forty-two-month parole disqualifier. This constituted an extended term sentence in each case pursuant to N.J.S.A. 2C:43–6f, calculated under the Revised Attorney General Guidelines For Negotiating Cases Under N.J.S.A. 2C:35–12, July 15, 2004 (Attorney General Guidelines ).

After serving a portion of their special probation terms, each defendant pled guilty to multiple and serious probation violations. Neither defendant disputed that his probation should be permanently revoked, nor does either defendant now contend that revocation was improper.

At their violation of probation (VOP) sentencings, the prosecutor sought imposition of the seven-year sentences with forty-two-month parole disqualifiers as alternatively provided for in the plea agreements. Bishop asked the court to consider imposing a five-year sentence with a three-year parole disqualifier, or to consider waiving the parole disqualifier. Torres requested a seven-year sentence with a thirty-month parole disqualifier. In each case, the court reassessed the applicable aggravating and mitigating factors. The court found in each case the presence of the same three aggravating factors that existed at the time of original sentencing, namely (3) the risk of another offense, (6) defendant's prior record, and (9) the need for deterrence; the court found no mitigating factors present. See N.J.S.A. 2C:44–1a and b. Finding a substantial preponderance of aggravating factors as to each defendant, the court sentenced Bishop to seven years imprisonment with a forty-two-month parole disqualifier, and sentenced Torres to seven years imprisonment with a thirty-six-month parole disqualifier.

Defendants now contend that their VOP sentences constituted an abuse of discretion and violated the sentencing principles laid down in State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992), State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992), and State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992). Defendants argue that, in accordance with the principles prescribed in these cases, their VOP sentences should have been no more than four years imprisonment with no parole disqualifier.

In advancing their argument, defendants begin with the proposition that “there is no such thing as an agreed-upon ‘alternative sentence’ in the event of a VOP.” They further argue that by consenting to their entry into special probation, the prosecutor irrevocably waived the right to seek an extended term sentence pursuant to N.J.S.A. 2C:43–6f, should a VOP occur. In defendants' view, the alternative presented to them in their plea agreements at the time of their original pleas gave them the option of choosing either special probation or a state prison sentence not to exceed seven years with a forty-two-month parole disqualifier. They argue that once they made their choice and were sentenced, the other alternative was no longer of any effect and, having chosen special probation, the prison alternative could not be rekindled upon a VOP. Thus, they contend, at their VOP sentencings, the prosecutor lacked the authority to seek an extended term sentence with a parole disqualifier, and the court lacked the authority to impose such a sentence.3

II.

We begin our analysis by distinguishing between regular probation and special probation. Regular probation has long been an authorized disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1–1 to 2C:104–9. See N.J.S.A. 2C:43–2b(2). Regular probation is a non-state prison sentence (although it can be conditioned upon serving not more than 364 days in a county jail). Ibid.

In general terms, a regular probationary sentence is typically imposed for third or fourth-degree offenses which do not contain a specific provision requiring a state prison sentence. For such offenders with no prior criminal record, there is a presumption against state prison, and for such offenders with a prior record, there is no presumption either for or against state prison. N.J.S .A. 2C:44–1e; State v. Meyer, 192 N.J. 421, 433 n. 5, 930 A.2d 428 (2007). Where there is no presumption either for or against state prison, the court must weigh aggravating and mitigating factors enumerated in N.J.S.A. 2C:44–1a and b in making the “in-out” decision, that is, whether to impose a state prison sentence or a probationary sentence. State v. Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n. 5, 930 A.2d 428.

For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44–1d, which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532–34, 722 A.2d 95 (1999). Thus, for such offenders, a regular probationary sentence is almost never appropriate under the Code's general sentencing provisions.

Special probation is another authorized disposition under the Code. It is not contained in N.J.S.A. 2C:43–2b(2), but in N.J.S.A. 2C:35–14. The term “special probation” first appeared in that section when it was amended in 1999. Meyer, supra, 192 N.J. at 434, 930 A.2d 428. As we will explain, that amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition authorized by the Code.

Special probation is designed to divert otherwise prison-bound offenders into an intensive and highly specialized form of probation designed to “address in a new and innovative way the problem of drug-dependent offenders caught in a never-ending cycle of involvement in the criminal justice system.” Id. at 434–35, 930 A.2d 428. Thus, the Legislature created special probation as a disposition aimed specifically at prison-bound offenders, who would not be eligible for regular probation.

We recognize, of course, that drug dependent offenders sentenced to regular probation may also be admitted to Drug Court under a separate track than those admitted on the special probation track prescribed by N.J.S.A. 2C:35–14. Ibid. This opinion does not deal with those admitted to Drug Court under the regular probation track; it deals only with offenders sentenced to special probation under N.J.S.A. 2C:35–14, whose probation is subsequently permanently revoked.

In the immediate aftermath of the Supreme Court's 2007 decision in Meyer, the Legislature again amended N.J.S.A. 2C:35–14. Among other things, the amendment gave legislative approval to the Meyer holding, making clear that although Drug Court is available under two tracks (special probation and regular probation), the two are separate and distinct. Indeed, the 2008 amendment added the following to the beginning of N.J.S.A. 2C:35–14a:

a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S. 2C:45–1 [specifying the conditions of regular probation]. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S. 2C:45–1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S. 2C:45–1.

[L. 2008, c. 15, § 1, eff. Aug. 1, 2008.]

Thus, stated in very broad terms, offenders sentenced to regular probation are not necessarily prison bound, based upon the nature and seriousness of their crimes and the general sentencing provisions of the Code. On the other hand, offenders sentenced to special probation are prison bound because their offenses, deemed more serious in the Code, carry a mandatory or presumptive term of imprisonment. Their eligibility for this form of non-prison sentence is not determined by weighing aggravating and mitigating factors as is the case with regular probation, but by reference to the enumerated statutory requirements listed in N.J.S.A. 2C:35–14. Clarke, supra, 203 N.J. at 175. It is logical that in light of the vastly different criteria governing admission to these separate forms of probation, the consequences of resentencing upon revocation of probation should also differ.

III.

The Code provides as follows for resentencing upon revocation of regular probation:

When the court revokes ․ probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.

[N.J.S.A. 2C:45–3b.]

As we previously stated, defendants rely upon the Supreme Court's interpretation of that provision as the basis for their argument.

In Baylass, the Court held that upon resentencing after a VOP, the court must consider the aggravating factors that existed at the time of the original sentence, and weigh and balance them against mitigating factors as affected by probation violations. Baylass, supra, 114 N.J. at 178, 553 A.2d 326. Because the weighing of aggravating and mitigating factors at the time of original sentencing supported a probationary (rather than prison) sentence, the Court further held that it would be a rare case in which the post-VOP balancing of original aggravating factors and surviving mitigating factors would weigh in favor of a term of imprisonment greater than the presumptive (now midrange4 ) sentence or of a period of parole ineligibility. Ibid. The offenses in Baylass were three counts of fourth-degree forgery, N.J.S.A. 2C:21–1a. Id. at 171, 553 A.2d 326. That offense does not provide for any mandatory minimum period of parole ineligibility. Therefore, the Court's analysis pertained to the possibility of a discretionary minimum period of parole ineligibility pursuant to N.J.S.A. 2C:43–6b. Id. at 178, 553 A.2d 326.

Three years after Baylass, the Court considered the constitutionality of N.J.S.A. 2C:43–6f. Lagares, supra, 127 N.J. at 23, 601 A.2d 698. In Lagares, the Court was not dealing with a VOP sentence, but the initial sentence of a defendant convicted of third-degree distribution of a controlled dangerous substance, N.J .S.A. 2C:35–5, who, because of a prior drug conviction, was eligible for extended term sentencing, if requested by the prosecutor, pursuant to N.J.S.A. 2C:43–6f. Id. at 24, 601 A.2d 698. The Court held that section 6f could withstand separation of powers and due process challenges only if interpreted to require the adoption of uniform statewide guidelines to govern the exercise of prosecutorial discretion in choosing whether or not to request imposition of an extended term, which, once requested, is mandatory for the court. Id. at 32–33, 601 A.2d 698. The Court noted that “[t]hose guidelines should reflect the legislative intent to make extended sentencing of repeat drug offenders the norm rather than the exception.” Id. at 32, 601 A.2d 698.

Although Lagares did not involve a VOP sentencing, its holding and rationale, along with the holding and rationale in Baylass, provided much of the underpinning for the Court's decision a few months later in the remaining cases upon which defendants rely, Vasquez and its companion case, Peters.5

In Vasquez, the defendant pled guilty to a school zone offense, namely possession with intent to distribute cocaine within one thousand feet of school property, N.J.S.A. 2C:35–7. Vasquez, supra, 129 N.J. at 192, 609 A.2d 29. Pursuant to a negotiated plea agreement, the prosecutor waived imposition of the mandatory three-year parole disqualifier prescribed for that offense and recommended a probationary sentence, but the plea agreement also provided that if the defendant violated probation, the prosecutor would withdraw the waiver and seek resentencing with the mandatory parole disqualifier. Ibid.

The defendant violated probation, and on resentencing the court concluded it had no discretion to refrain from imposing the statutorily mandated parole disqualifier in light of the plea agreement provision, and sentenced him to four years imprisonment with a three-year parole disqualifier. Id. at 193, 609 A.2d 29. The Supreme Court was therefore confronted with the issue of “whether on resentencing following a violation of probation the court is compelled by the sentencing statute to impose the period of parole ineligibility and whether the prosecutor, having originally waived the parole disqualifier, has the authority at resentencing to demand the imposition of the period of parole ineligibility.” Id. at 192, 609 A.2d 29.

The Court first disposed of the separation of powers challenge to N.J.S.A. 2C:35–12 by applying its rationale and holding in Lagares and reaching the same result. Id. at 195–97, 609 A.2d 29. Thus, the Court held that to render constitutional N.J.S.A. 2C:35–12, authorizing prosecutorial waiver of minimum periods of parole ineligibility, uniform guidelines were needed to regulate the exercise of prosecutorial discretion. Ibid. The Court then turned to the principles that should guide determination of an appropriate VOP sentence when the underlying offense, a school zone offense, provides for a mandatory parole disqualifier.

The Court began by quoting the statutory provision governing resentencing after a VOP, namely that the court “ ‘may impose on the defendant any sentence that might have been imposed originally for the offense for which he [or she] was convicted.’ “ Id. at 197, 609 A.2d 29 (quoting N.J.S.A. 2C:45–3b). Thus the Court applied the same resentencing standard as in Baylass, applicable to all resentencing after revocation of regular probation. Unlike in Baylass, the analysis in Vasquez was complicated by the statutory parole disqualifier prescribed for the underlying offense. Therefore, the Court was required to analyze the interrelationship between N.J.S.A. 2C:35–7 (providing for the mandatory parole disqualifier), and N.J.S.A. 2C:35–12 (authorizing prosecutorial waiver of the parole disqualifier). Id. at 197–200, 609 A.2d 29.

The Court concluded that, because prosecutors are authorized by section 12 to waive the parole disqualifier in section 7, “section 7 sentencing is not ‘mandatory,’ at least in the typical or conventional use of mandatory sentencing.” Id. at 199, 609 A.2d 29. The Court further reasoned that once waived, the parole disqualifier under section 7 is no longer mandatory for purposes of VOP resentencing and that prosecutors retain no sentencing authority on resentencing regarding imposition of a parole disqualifier. Id. at 200, 609 A.2d 29.

Because it was construing a penal statute, the Court felt constrained to construe it strictly in the absence of express and clear statutory language to the contrary. Id. at 200–01, 609 A.2d 29. The Court concluded:

Thus, unless the Legislature has made clear its intent to have the mandatory parole disqualifier apply at violation of probation sentencing, the court is not justified in imputing that intent to the Legislature. We are satisfied that it has not. The mandatory term of section 7 is itself not truly mandatory because it may be waived. Moreover, section 12, which authorizes the waiver of the mandatory term, does so only in the context of the original sentencing. That waiver may occur as part of a plea agreement or a post-conviction sentencing agreement. However, the legislation does not expressly mandate that a parole disqualifier be applied at the resentencing stage or authorize the exercise by the prosecution of any power to waive or request such a parole disqualifier at that stage.

[Id. at 201, 609 A.2d 29.]

The Court thus held that the Baylass framework was applicable to the resentencing process and, in the absence of express statutory authority, the Court was unable to infer a legislative intent to impose an absolute mandatory parole disqualifier on resentencing for a VOP based on a school zone offense. Id. at 201–02, 609 A.2d 29.

However, recognizing the material difference between the penalties prescribed for the underlying offenses in Baylass and in Vasquez, the Court determined that on resentencing after a VOP for a school zone offense the court must follow the Baylass principles, “subject, however, to a discretionary authority to impose a period of parole ineligibility under appropriate circumstances and based on adequate findings.” Id. at 205, 609 A.2d 29. For such cases, in which the underlying offense contained a mandatory, but waiveable, parole disqualifier, the Court summarized the modified Baylass rule as follows:

Hence, the sentencing court, following a violation of probation, cannot return to a sentence more stringent than was appropriate originally except in the rare case. Nonetheless, although we reject the State's position that on resentencing for violation of probation the imposition of a period of parole ineligibility is mandatory in the absence of the prosecutor's waiver, we hold that a period of parole ineligibility may be imposed in conjunction with the imposition of a presumptive custodial term as a matter of judicial discretion.

[Id. at 206, 609 A.2d 29.]

IV.

When the decisions in Baylass, Lagares, Vasquez, and Peters were rendered, between 1989 and 1992, N.J.S.A. 2C:35–14 provided for a very limited rehabilitation program for drug-dependent prison-bound offenders who could, under prescribed circumstances, be placed on “probation,” subject to appropriate and reasonable “terms and conditions as may be required by the court and by law, pursuant to N.J.S.A. 2C:45–1.” L. 1987, c. 106, § 1, operative July 9, 1987. Thus, a defendant qualifying under this section could be admitted to regular probation. As we have previously stated, the concept of special probation was not introduced until the 1999 amendment. Importantly, under the pre–1999 version, N.J.S.A. 2C:35–14d provided that upon revocation of probation the court was empowered to “impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.” L. 1987, c. 106, § 1, operative July 9, 1987. This is precisely the same language that was contained then, and continues to be contained now, in N.J.S.A. 2C:45–3b, governing a court's sentencing authority for a violation of regular probation.

In the 1999 amendments to N.J.S.A. 2C:35–14, the Legislature, presumably being cognizant of these decisions, enacted a provision that changed the sentencing authority of courts for resentencing upon permanent revocation of special probation. Section d, which contained the identical sentencing provision that existed for regular probation, was deleted in its entirety. L. 1999, c. 376, § 2, eff. Jan. 14, 2000. It was replaced by a new section, N.J.S.A. 2C:35–14f(4), which currently remains in effect and provides, in relevant part:

(4) If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.

[N.J.S.A. 2C:35–14f(4) (emphasis added).]

Our task is to interpret this new section. In doing so, we must ascertain the intent of the Legislature in enacting it. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). The best indicator of that intent is the statutory language itself, to which courts should ascribe its ordinary meaning and significance. Ibid . In doing so, the words should be read in context with related provisions to give sense to the legislation as a whole. Ibid. If the language is clear and unambiguous, and susceptible to only one interpretation, no further inquiry should be made. Ibid. However, if there is ambiguity in the language that could lead to more than one plausible interpretation, courts may consider extrinsic evidence, including legislative history, committee reports, and contemporaneous construction. Id. at 492–93, 874 A.2d 1039. Courts may also consider extrinsic evidence if a plain reading would lead to an absurd result or if the overall statutory scheme is at odds with the plain language. Id. at 493, 874 A.2d 1039.

Applying these principles, we conclude that this statutory change reflects legislative intent to provide a separate VOP resentencing regime for special probation than that which had previously existed and continues to exist for regular probation. It constitutes a marked departure from the regular probation standard and provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation. This new provision comports with the fundamental difference in admission criteria to special probation as opposed to regular probation.

We conclude that the replacement of the former N.J.S.A. 2C:35–14d with the new N.J.S.A. 2C:35–14f(4) was a substantive change, and not a mere shift in verbiage. We base our conclusion on the plain language of the statute. To the extent that any ambiguity might exist, our conclusion is bolstered by several factors.

First, the Legislature left untouched the resentencing provision for regular probation in N.J.S.A. 2C:45–3b. This indicates a legislative intent to leave intact the Baylass principles for resentencing upon revocation of regular probation, but changing the principles applicable to resentencing upon revocation of special probation.

Second, as the Court explained in Baylass, it would only be a rare case in which a non-prison-bound offender admitted to regular probation should, upon revocation of probation, receive more than a mid-range flat sentence. That analysis is based upon the nature and seriousness of the underlying offense and the identification at the original sentencing of aggravating and mitigating factors, in which a preponderance of mitigating factors would have weighed in favor of choosing probation over state prison as the original sentence. Thus, even if, as a result of the VOP, some or all of the mitigating factors were diminished in weight or eliminated, the rebalancing of original aggravating and remaining mitigating factors would not be expected to support a sentence above the mid-range or a sentence with a discretionary parole disqualifier. That analytical framework does not apply to prison-bound offenders sentenced to special probation.

Third, the carrot-and-stick approach is integral to the Drug Court concept. Prison-bound offenders are given an opportunity to be diverted from a state prison sentence if they are willing to avail themselves of the rehabilitative opportunities available in Drug Court in an effort to free themselves from the recurring cycle of drug dependency and criminal activity. The legislative history of the 1999 amendments includes the Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987, December 9, 1996. That document “call[ed] for new ways to support drug court programs. One way is to provide judges with new legal tools with which to ‘leverage ’ addicts into treatment.” Id. at 18, 553 A.2d 326 (emphasis added). The legislation that followed created special probation, as distinguished from regular probation, and established the new resentencing provision applicable upon revocation of special probation.

This evidences an awareness by the Legislature that strong incentives would be required to keep special probationers on the often difficult path to rehabilitation. It is well accepted that relapse is part of rehabilitation. Indeed, echoing the same theme as in the Attorney General's report, the 1999 legislation includes a similar reference in its provisions dealing with intermediate sanctions on a special probationer. When violations occur, courts are directed to “consider the recommendations of the treatment provider with respect to the likelihood that [thirty days to six months] confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated.” N.J.S.A. 2C:35–14g (emphasis added).

The Attorney General Guidelines accord with these concerns. They authorize prosecutors to “tender a ‘conditional’ offer under these Guidelines, affording the defendant the option to choose either the Brimage6 offer or to be sentenced to rehabilitative treatment pursuant to N.J.S.A. 2C:35–14.” Attorney General Guidelines, supra, § 3.13, at 22. This is for the purpose of “encouraging prosecutors to empower sentencing courts to use the leverage of the criminal justice system to convince addicted offenders to accept the rigors of clinically appropriate treatment interventions.” Ibid. The Attorney General Guidelines further elaborate that special probation “is designed to address the concern that the prospect of a probationary or county jail sentence may be insufficient to provide the sentencing court with the leverage necessary to convince an addicted defendant to overcome denial and accept the rigors of clinically-appropriate treatment, such as the treatment provided pursuant to N.J.S.A. 2C:35–14 (treatment in lieu of imprisonment).” Id. at § 6.5.4, at 47.

Although the Attorney General Guidelines are silent regarding resentencing upon revocation of special probation, the foregoing provisions assist and support our analysis. The ultimate motivation or leverage, a tool needed to enable Drug Courts to operate effectively, is the threat of the substantial sentence that would have been imposed originally if the defendant were not admitted to Drug Court through special probation.

Fourth, uniformity in sentencing is a fundamental goal of the Code. Brimage, supra, 153 N.J. at 19–22, 706 A.2d 1096. Indeed, the Attorney General Guidelines, often referred to as the “Brimage Guidelines,” were promulgated at the direction of the Supreme Court in Brimage to assure uniformity. Id. at 23, 706 A.2d 1096. Our interpretation of N.J.S.A. 2C:35–14f(4) advances the fundamental goal of sentencing uniformity. Prison-bound offenders who meet the eligibility requirements of N.J.S.A. 2C:35–14 are afforded an opportunity at rehabilitation through Drug Court. However, for those who do not successfully avail themselves of the opportunity, the sentencing consequences should be the same as if the opportunity had not been extended to them in the first place. We do not think the Legislature established a comprehensive system to divert prison-bound offenders in the hopes of their rehabilitation, only to allow those who fail to receive a much more lenient sentence than similarly situated offenders who are not given the opportunity. Such an interpretation would invite manipulation by offenders to get into special probation, knowing that their admission would entitle them to the windfall of a reduced sentence upon revocation.

Fifth, in 2012, the Legislature again amended N.J.S.A. 2C:35–14. Among the changes was the deletion of subsection c, which gave prosecutors the right to object to special probation, which could be overridden only upon a judicial finding of a gross and patent abuse of prosecutorial discretion. L. 2012, c. 23, § 5, eff. Jan. 19, 2013. Thus, in its present form, the consent of the prosecutor is no longer required for admission to special probation. Accordingly, the entire premise of defendants' waiver argument is no longer viable.

We do not deem this most recent amendment as intended to effect any change in the sentencing standard applicable upon revocation of special probation. The overall purpose of the 2012 amendment was to reduce eligibility requirements for admission to special probation, to compel admission for qualified offenders, and to expand the Drug Court program to all counties throughout the state. Indeed, the amendment left section 14f(4) unchanged, making even more clear that section 14 operates as a comprehensive stand-alone disposition scheme that is independent of N.J.S.A. 2C:35–12.

Finally, inclusion of an “alternative offer” or “alternative sentence” is expressly provided for in the Manual for Operation of Adult Drug Courts in New Jersey, July 22, 2002 (Drug Court Manual ), approved by the Judicial Council, and recognized by our Supreme Court as an authoritative source for the operation of the Drug Court program. Meyer, supra, 192 N.J. at 431, 930 A.2d 428. The Drug Court Manual prescribes the practices and procedures to be used in Drug Court. Clarke, supra, 203 N.J. at 174. Of course, the judicial branch cannot, through an approved manual or otherwise, create a sentencing disposition not authorized by the Legislature in the Code. Meyer, supra, 192 N.J. at 435, 930 A.2d 428. We suggest no such thing. However, the Drug Court Manual provides further confirmation of our interpretation of the statutory language authorizing disposition of an offender whose special probation is permanently revoked.

Like the Attorney General Guidelines, the Drug Court Manual contains no specific provisions pertaining to resentencing upon revocation of special probation. However, it contains provisions such as the following that support our decision in this case:

Prison-bound cases are defined as defendants who, but for the drug court program, would be sentenced to a term of imprisonment in a New Jersey state prison. These offenders must meet all other eligibility criteria. The plea agreement in these cases must clearly indicate that the defendant has been given an alternative offer and must set forth the state prison sentence that was being offered as the alternative to the drug court program, e.g. Drug Court participation or three years in New Jersey State Prison.

[Drug Court Manual, supra, at 9.]

If an applicant is found both legally and clinically acceptable for the drug court program, a formal plea bargain should therefore be offered to the applicant defendant which identifies drug court participation as an alternative sentence.

[Id. at 23, 930 A.2d 428.]

The plea agreements in these cases complied with these provisions. Without dispute, both defendants were fully informed and expressed their understanding that, if they violated special probation, their probation could be permanently revoked, in which case they would be subject to a sentence not exceeding the Brimage alternative of seven years imprisonment with a forty-two-month parole disqualifier. This was not an automatic agreed-upon sentence, as defendants contend, and it did not deprive the court of its ultimate sentencing authority. The court had the authority to impose any lawful sentence not to exceed that recommended as an alternative in the plea agreement.

In these cases, the sentencing range was five years with a three-year parole disqualifier at the low end (the lowest available extended term, pursuant to N.J.S.A. 2C:43–6f and N.J.S.A. 2C:43–7a(4)), to seven years with a forty-two-month parole disqualifier at the high end (the Brimage offer). Upon reexamination of aggravating and mitigating factors, and a finding of a substantial preponderance of aggravating factors in each case, the court sentenced Bishop to seven years imprisonment with a forty-two-month parole disqualifier, and Torres to seven years imprisonment with a thirty-six-month parole disqualifier. We are satisfied that the court followed the correct sentencing guidelines and, in a reasonable exercise of discretion, imposed appropriate sentences in both cases within the permissible range.

Affirmed.

FOOTNOTES

1.  These appeals were calendared back-to-back, and we now consolidate them for disposition in this opinion.

2.  These cases were initially argued on an excessive sentencing calendar pursuant to Rule 2:9–11, after which we issued orders directing full briefing and placement on a plenary calendar. After argument on the plenary calendar, we invited the Attorney General and the Association of Criminal Defense Lawyers of New Jersey to file amicus curiae briefs.

3.  At oral argument, defense counsel apparently conceded that a discretionary period of parole ineligibility of up to three years might have been legally authorized, presumably as part of an ordinary term sentence for the school zone offenses, under the provisions of N.J.S.A. 2C:35–7. See Vasquez, supra, 129 N .J. at 206, 609 A.2d 29. Defense counsel nevertheless adhered to his primary position that no minimum period of parole ineligibility was warranted in these cases and that imposition of such a term would have constituted an abuse of discretion. Our disposition of this appeal does not require independent analysis of this issue because the primary focus is on the mandatory extended term pursuant to N.J.S.A. 2C:43–6f, which includes by its terms a minimum period of parole ineligibility of at least three years, thereby subsuming the three year minimum period of parole ineligibility prescribed by N.J.S.A. 2C:35–7.

4.  See State v. Natale, 184 N.J. 458, 488, 878 A.2d 724 (2005).

5.  We will confine our references to Vasquez because the Court's relevant analysis and holding was the same in both cases.

6.  State v. Brimage, 153 N.J. 1, 706 A.2d 1096 (1998).

LISA, J.A.D. (retired and temporarily assigned on recall).

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