STATE OF NEW JERSEY v. ALTARIQ F. MONTGOMERY (20-01-0114, OCEAN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0022-21
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALTARIQ F. MONTGOMERY, a/k/a
ALTARIQ F. MONTOGOMERY
Defendant-Respondent.
_______________________________
Submitted May 17, 2022 – Decided July 18, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 20-01-0114.
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for appellant (Samuel Marzarella, Chief
Appellate Attorney, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Stephen P. Hunter, Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
The State appeals from four August 19, 2021 orders of the Law Division
continuing defendant Altariq F. Montgomery on recovery court special
probation after he pled guilty to a second violation of that probation. We vacate
the orders and remand for further proceedings.
I.
In January 2016, defendant was sentenced to two years of regular
probation for third-degree distribution of a controlled dangerous substance
(CDS), N.J.S.A. 2C:35-5(a)(1), and third-degree possession of a CDS, N.J.S.A.
2C:35-10(a)(1).
In November 2016, defendant was charged with third-degree distribution
of a CDS, N.J.S.A. 2C:35-5(a)(1), and third-degree possession of a CDS,
N.J.S.A. 2C:35-10(a)(1). He was also charged with a violation of probation on
the previous sentence for, among other things, distribution of a CDS. On these
charges, the trial court sentenced defendant to recovery court special probation
for a term of five years.
Defendant subsequently received a new charge of third-degree possession
of a CDS, N.J.S.A. 2C:35-10(a)(1). In December 2016, he was sentenced on
that charge to recovery court special probation for a term of five years to run
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concurrent with his previously imposed five-year term of recovery court special
probation.
In March 2019, defendant violated recovery court special probation based
on, among other things, distribution of a CDS. The court continued him on
recovery court special probation.
On January 15, 2020, a grand jury indicted defendant, charging him with
third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10(a)(1); third-
degree possession of a CDS with intent to distribute (heroin), N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(3); third-degree distribution of a CDS (heroin), N.J.S.A.
2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree possession of a CDS (cocaine),
N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to
distribute (cocaine), N.J.S.A. 2C:35-5(a)(1); and third-degree distribution of a
CDS (cocaine), N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3).
These charges arose after an investigation into the overdose deaths of two
people in Ocean County in July 2019. The investigation revealed that the
victims purchased the heroin on which they overdosed from C.W., a cooperating
witness. C.W. informed investigators that he or she purchased the heroin from
defendant. On July 5, 2019, detectives carried out a controlled purchase of
heroin and cocaine by C.W. from defendant. A search of defendant's home
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uncovered $10,500 in United States currency, a black digital scale, sandwich
bags, CDS paper wrapping, a safe containing CDS packaging supplies, and a
notebook with information about the Piru Bloods Street Gang.
On January 17, 2021, defendant was charged with a second violation of
recovery court special probation. The charge was based on: (1) urine specimens
positive for synthetic cannabis; (2) a conviction for a motor vehicle offense; (3)
defendant's arrest and indictment for the July 2019 controlled sale of heroin and
cocaine to C.W.; (4) multiple pending charges relating to motor vehicle
offenses; and (5) his failure to pay court-imposed financial obligations.
Subsequent amendments to the charge included a June 2020 possession of a CDS
and defendant's discharge from an outpatient treatment center for non-
attendance and failure to complete a drug test.
On August 2, 2021, defendant pled guilty to all of the charges in the 2020
indictment. The guilty plea was entered without an agreement with the State
with respect to sentencing. The court released defendant from pretrial detention
to permit him to enter a drug-treatment facility.
On August 16, 2021, defendant pled guilty to all of the charges in the
second violation of his recovery court special probation. The court sentenced
defendant on both the second violation of his special probation and the
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convictions of the charges in the 2020 indictment. The State argued that
defendant's special probation should be terminated and that he should be
sentenced to a term of incarceration on his underlying criminal convictions. The
State argued that there is no likelihood defendant will successfully complete his
treatment program and that due to his criminal history and the seriousness of his
violations of special probation his continuation on special probation would
present a danger to the community. The State noted that while on special
probation defendant engaged in the sale of fentanyl-laced narcotics, resulting in
the deaths of two people, absconded on two occasions, went missing for forty -
five days, and committed multiple other violations of special probation. In
addition, the State urged the court to consider defendant's criminal history,
including juvenile adjudications for robbery and theft.
Defendant urged the court to continue his recovery court special
probation. His counsel said that defendant was under the influence of Percocet
when he committed his offenses and the approximately one year he spent in
pretrial detention changed his outlook. Defendant claimed to be serious about
rehabilitation, having entered a drug-treatment program, and as a new father
devoted to his daughter.
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The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk
that defendant will commit another offense), six, N.J.S.A. 2C:44-1(a)(6) (extent
of defendant's prior criminal convictions and the seriousness of those offenses),
and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter others). In addition, the court
found mitigating factor ten, N.J.S.A. 2C:44-1(b)(1) (defendant is particularly
likely to respond affirmatively to probationary treatment). The court noted that
defendant had a period of compliance with treatment before he "spiraled
downward" and committed his recent drug-related crimes. In addition, the court
found defendant had been doing well in the time he had been in treatment since
entry of his guilty plea and that the birth of his daughter during his detention
gave him an incentive to succeed in drug treatment. The court concluded:
I find that the aggravating and mitigating factors are in
equipoise. I'm going to give him one more chance to
comply with the new [recovery] court term. I'm going
to continue him on [recovery] court. He is continued
on the violation of probation with strict compliance on
the new matter. He is given a new drug court term of
five years special probation.
On August 19, 2021, the court issued four orders that continue defendant's
recovery court special probation terms that began in 2016.
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On August 19, 2021, the trial court denied the State's motion for a stay of
the August 19, 2021 orders.1
This appeal follows. The State makes the following arguments.
POINT I
PURSUANT TO N.J.S.A. 2C:35-14[(f)](2), THE
STATE MAY APPEAL THE JUDGE'S DECISION
RESENTENCING DEFENDANT TO SPECIAL
PROBATION FOLLOWING HIS SECOND OR
SUBSEQUENT VIOLATION OF SPECIAL
PROBATION.
POINT II
THE JUDGE COMMITTED LEGAL ERROR WHEN
HE OMITTED ADDRESSING REQUIRED
STATUTORY CRITERIA UNDER N.J.S.A. 2C:35-
14[(f)](2) AND (3).
II.
1
An August 19, 2021 judgment of conviction memorializes defendant's
sentence to a five-year term of recovery court special probation for his
convictions of the charges in the 2020 indictment. Although a copy of the
judgment of conviction was attached to the State's case information statement,
its brief is limited to challenging the orders continuing defendant's terms of
recovery court special probation that started in 2016. See State v. Hyland, 238
N.J. 135, 145 (2019) (the State lacks authority to appeal a sentence of recovery
court special probation unless the sentence is illegal). N.J.S.A. 2C:35-14(f)(2),
however, provides that "[t]he court's determination to permit the person to
continue on special probation following a second or subsequent violation
pursuant to this paragraph may be appealed by the prosecution."
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We review a sentencing decision for an abuse of discretion. State v. Jones,
232 N.J. 308, 318 (2018). We do "not second-guess the sentencing court" and
defer to its factual findings. State v. Case, 220 N.J. 49, 65 (2014). However,
our deferential standard of review will not apply if the sentencing court fails to
apply relevant statutory factors, "forgoes a qualitative analysis, or provides 'little
insight into the sentencing decision . . . .'" Id. at 65 (quoting State v. Kruse, 105
N.J. 354, 363 (1987)).
The Legislature has circumscribed judicial discretion with respect to the
continuation of recovery court special probation after a second or subsequent
violation of that probation. N.J.S.A. 2C:35-14(f)(2) provides that
[u]pon a second or subsequent violation of any term or
condition of the special probation authorized by this
section or of any requirements of the course of
treatment, the court shall, subject only to the provisions
of subsection g. of this section, permanently revoke the
person's special probation unless the court finds on the
record that there is a substantial likelihood that the
person will successfully complete the treatment
program if permitted to continue on special probation,
and the court is clearly convinced, considering the
nature and seriousness of the violations, that no danger
to the community will result from permitting the person
to continue on special probation pursuant to this
section.
The statute continues:
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[i]n making its determination . . . whether to overcome
the presumption of revocation established in paragraph
(2) of this subsection, the court shall consider the nature
and seriousness of the present infraction and any past
infractions in relation to the person's overall progress
in the course of treatment, and shall also consider the
recommendations of the treatment provider.
[N.J.S.A. 2C:35-14(f)(3).]
The statute expressly creates a presumption of revocation upon a second
violation of recovery court special probation. To overcome that presumption a
defendant must establish a substantial likelihood that he will successfully
complete substance abuse treatment and, by clear and convincing evidence, that
his continuation on special probation will not create a danger to the community.
When determining whether the presumption of revocation has been overcome
the court must consider the nature and seriousness of the present infraction and
past infractions, as well as the defendant's overall course of treatment and the
recommendations of the treatment provider.
We agree with the State that the trial court did not follow the carefully
defined statutory path when it sentenced defendant for his second violation of
special probation. While the court mentioned N.J.S.A. 2C:35-14(f)(2), it did not
make specific findings with respect to defendant's likelihood of succeeding in
treatment. Nor did the court address the seriousness of defendant's present
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infractions, in particular his sale of heroin and cocaine containing fentanyl, his
connection, although not charged criminally, to the overdose deaths of two
people, and his multiple violations of the conditions of special probation in the
past. The court also failed to find by clear and convincing evidence that
defendant's continuation on special probation would not pose a danger to the
community, despite defendant's long history of possessing and distributing CDS.
We also see no reference in the trial court's decision to a recommendation of
defendant's treatment provider with respect to defendant's likelihood of
successfully completing treatment.2
Rule 1:7-4(a) provides a court shall "find the facts and state its
conclusions of law" explaining its appealable orders. "[A]n articulation of
reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328
N.J. Super. 275, 282 (App. Div. 2000). Effective appellate review of a trial
court's decision requires examination of the findings of fact and conclusions of
law on which the trial court relied. Raspantini v. Arocho, 364 N.J. Super. 528,
534 (App. Div. 2003).
2
The court refers to the recommendations of a senior probation officer, first to
terminate defendant's recovery court special probation and later to continue that
probation. We do not view a probation officer to be treatment provider.
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In the absence of specific findings of fact and conclusions of law
addressing each of the statutory elements of N.J.S.A. 2C:35-14(f)(2) and (3), we
cannot determine whether the trial court erred when it continued defendant's
recovery court special probation after his second violation of that probation.
We, therefore, vacate the August 19, 2021 orders and remand for a new
sentencing hearing in which each of the relevant statutory factors is addressed
in detail. We note that defendant is to be sentenced "as he . . . stands before the
court on the day of sentencing. This means evidence of post-offense conduct,
rehabilitative or otherwise, must be considered" by the sentencing court. State
v. Jaffe, 220 N.J. 114, 124 (2014). 3
3
We do not view N.J.S.A. 2C:35-14(g), an exception to the presumption of
revocation established in N.J.S.A. 2C:35-14(f)(2), to apply here. Section (g)
allows a court, in lieu of permanently revoking special probation, to impose a
term of incarceration of between thirty days and six months, after which the term
of special probation may be reinstated. "In determining whether to order a
period of incarceration in lieu of permanent revocation . . . the court shall
consider the recommendations of the treatment provider with respect to the
likelihood that such confinement would serve to motivate the person to make
satisfactory progress in treatment once special probation is reinstated." N.J.S.A.
2C:35-14(g). Although the sentencing court mentioned this provision, it did so
only when noting that defendant had been detained for nearly a year awaiting
trial on the charges in the 2020 indictment. It appears that the court referenced
the statute in support of its reasoning that defendant's pretrial detention caused
him to focus on his future and his role as a new father, which the court cited as
support for its decision to continue defendant's special probation.
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The August 19, 2021 orders continuing defendant's recovery court special
probation are vacated and the matter is remanded for resentencing consistent
with this opinion. We do not retain jurisdiction.
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