NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2477-14T3

 A-2478-14T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MWANZA FITZPATRICK,

Defendant-Respondent.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEEYAN BRISTER,

Defendant-Respondent.

__________________________

Argued September 30, 2015 – Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment 

Nos. 14-02-00175 (A-2477-14) and 14-05-00620

(A-2478-14).

Christopher Dize, Assistant Prosecutor, 

argued the cause for appellant (Andrew C. 

Carey, Middlesex County Prosecutor, 

attorney; Mr. Dize, of counsel and on the 

briefs).

December 28, 2015

APPROVED FOR PUBLICATION

December 28, 2015

APPELLATE DIVISION
2 A-2477-14T3

Stephen P. Hunter, Assistant Deputy Public 

Defender, argued the cause for respondents 

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Hunter, of counsel and on the 

briefs).

The opinion of the court was delivered by

GILSON, J.S.C. (temporarily assigned).

These appeals, consolidated for purposes of this opinion, 

present the jurisdictional question of what is the time within 

which the State can appeal the denial of a drug offender 

restraining order sought in connection with a sentence. We hold 

that the governing statute, N.J.S.A. 2C:35-5.7(k), requires such 

appeals to be filed within ten days of the date of sentencing. 

Our holding follows from a reading of the language of the 

statute, the legislative purpose in enacting the statute, and 

the relevant legislative history. Because the State failed to 

file its notices of appeal in these matters within the ten-day 

period, we dismiss both appeals for lack of jurisdiction.

I.

The relevant facts and procedural histories are not in 

dispute and are established by the record. Defendants Mwanza 

Fitzpatrick and Keeyan Brister were separately indicted for 

separate incidents of alleged second and third degree drug 

offenses. Both defendants applied for special drug court 

probation pursuant to N.J.S.A. 2C:35-14, were found clinically 
3 A-2477-14T3

and legally eligible, and were recommended for acceptance into 

the program. Both defendants then pled guilty to third degree 

distribution of heroin within 1000 feet of school property in 

violations of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1).

As part of the plea agreements, the State agreed to 

recommend that defendants be sentenced to five years of special 

drug court probation as an alternative sentence to five years in 

prison with thirty months of parole ineligibility. Because both 

defendants were subject to mandatory extended terms, those 

alternative sentences were in accordance with the Brimage

Guidelines1 and N.J.S.A. 2C:43-6(f).

At sentencing, the State for the first time informed the 

court and counsel that the State would request a drug offender 

restraining order (DORO) in accordance with N.J.S.A. 2C:35-

5.7(h). The State had not stated in the plea agreements that a 

DORO would be a condition of the sentences. Defendants objected

and the judge adjourned sentencing and directed the State and 

defense counsel to brief the issue. Thereafter, defendants 

moved to preclude the imposition of DOROs, and all parties 

submitted briefs and certifications.

On December 2, 2014, the trial court heard oral arguments 

and denied the State's application for DOROs against both 

 

1 State v. Brimage, 153 N.J. 1 (1998).
4 A-2477-14T3

defendants. That same day, the trial court sentenced defendants 

to five years of special drug court probation as an alternative 

sentence to a prison term. On December 9, 2014, the trial court 

entered two orders granting defendants' motions to preclude the 

imposition of DOROs. On December 23, 2014, the State filed 

notices to appeal the denials of the DOROs.

The State seeks to appeal the trial court's denial of the 

DOROs arguing that the trial court erred by using the wrong 

standard. Defendants counter that the State filed its notices 

of appeal late and that this court lacks jurisdiction to hear 

either appeal. Defendants also argue, in the alternative, that 

(1) the Drug Offender Restraining Order Act is unconstitutional, 

(2) the imposition of DOROs would violate the plea agreements, 

and (3) the trial court properly denied the applications for 

DOROs using the correct legal standard. Because the State 

failed to file its notices of appeal within the governing tenday period, we dismiss both appeals for lack of jurisdiction,

and we do not reach the substance of any party's arguments.

II.

To place the jurisdictional issue in context, we briefly 

describe the Drug Offender Restraining Order Act of 1999,

N.J.S.A. 2C:35-5.4 to -5.10 (the Act). The Act is designed to 

enhance the quality of life and protect the public in areas 
5 A-2477-14T3

plagued by illegal drug activity. N.J.S.A. 2C:35-5.5(b). It 

fulfills its purpose by restraining drug offenders from 

returning to locations where they had engaged in illegal drug 

manufacturing or distribution activities. N.J.S.A. 2C:35-

5.5(d). Accordingly, the Act established procedures for issuing 

restraining orders against persons charged with or convicted of 

certain drug-related offenses. N.J.S.A. 2C:35-5.6, -5.7. 

Specifically, the Act empowers law enforcement officers and 

prosecutors to apply for a restraining order at two different 

times: (1) when the person, including a juvenile, is charged 

with drug offenses, N.J.S.A. 2C:35-5.7(a)-(d), and (2) when a 

drug offender is convicted or adjudicated delinquent, N.J.S.A.

2C:35-5.7(h). The Act also spells out the grounds on which 

defendants can apply for an exception to such restraining orders

and the basis for the court to grant such exceptions. N.J.S.A.

2C:35-5.7(e). In that regard, the Act provides that the "court 

may forego issuing a restraining order . . . only if the 

defendant establishes" certain legitimate needs to be in the 

place from which the drug offender is sought to be restrained. 

Ibid. Those restriction exemptions are limited and must be 

established "by clear and convincing evidence." Ibid. 

Furthermore, the Act gives the court the discretion to craft 
6 A-2477-14T3

"modifications to permit the person to enter the area during 

specified times for specified purposes." N.J.S.A. 2C:35-5.7(f).

The Act also provides procedures for a defendant to modify 

a DORO, and for the State to appeal the denial of a DORO sought 

in connection with the sentencing of a drug offender. N.J.S.A.

2C:35-5.7(k).

III.

The question of when the State can appeal the denial of a 

DORO sought in connection with the sentencing of a drug offender 

is an issue of first impression. The language authorizing such 

appeals is set forth in subsection k of N.J.S.A. 2C:35-5.7: "If 

the court does not issue a restraining order, the sentence 

imposed by the court for a criminal offense as defined in 

subsection b. of this section shall not become final for ten 

days in order to permit the appeal of the court's findings by 

the prosecution." A plain reading of this language limits the 

State's right to appeal to ten days from imposition of the 

sentence. See State v. Olivero, 221 N.J. 632, 639 (2015) 

("[T]he goal of statutory interpretation is to ascertain and 

effectuate the Legislature's intent." (quoting Murray v. 

Plainfield Rescue Squad, 210 N.J. 581, 592 (2012))); In re 

Registrant N.B., 222 N.J. 87, 98 (2015) ("[T]he best indicator 

of that intent is the plain language chosen by the Legislature."
7 A-2477-14T3

(alteration in original) (quoting State v. Gandhi, 201 N.J. 161, 

176 (2010))).

The State argues that the phrase "a criminal offense as 

defined in subsection b. of this section" limits N.J.S.A. 2C:35-

5.7(k) to apply only to appeals pertaining to N.J.S.A. 2C:35-

5.7(b). Thus, the State argues the ten-day period in subsection 

k does not apply to an appeal filed in connection with the 

denial of a DORO sought under subsection h, which is the

provision authorizing a DORO after a conviction. See N.J.S.A.

2C:35-5.7(h). There are several flaws with the State's proposed 

interpretation.

First, such an interpretation is inconsistent with the 

language of the Act. Subsection b of N.J.S.A. 2C:35-5.7 

addresses the procedure for the State to seek a DORO after a 

person is charged with a drug offense on a summons. 

Consequently, subsection b does not deal with a DORO sought 

after conviction. Subsection b, moreover, does not define "a 

criminal offense." That definition is found in N.J.S.A. 2C:35-

5.6(c).

Second, if subsection k does not apply, then the State 

would have no right to appeal at all. "Sentencing appeals by 

the State implicate the prohibitions against multiple punishment 

incorporated in the double jeopardy provisions of the Federal 
8 A-2477-14T3

and State Constitutions." State v. Johnson, 376 N.J. Super.

163, 171 (App. Div.) (citing State v. Roth, 95 N.J. 334, 342-43

(1984)), certif. denied, 183 N.J. 592 (2005). Consequently, the 

State can appeal the sentence of a criminal defendant only in 

two circumstances: (1) if a statute expressly authorizes such an 

appeal, and (2) if the sentence is illegal. Roth, supra, 95 

N.J. at 342-43. In Roth, our Supreme Court traced the history 

of the government's right to appeal criminal sentences, and held 

that because of constitutional double jeopardy concerns, "the 

government cannot take an appeal in a criminal case absent 

express statutory authority." Id. at 341-43; see also United 

States v. DiFrancesco, 449 U.S. 117, 131-32, 101 S. Ct. 426,

434-35, 66 L. Ed. 2d 328, 342-43 (1980) (holding that the 

government could appeal a criminal sentence without violating 

the Double Jeopardy Clause when Congress expressly authorized 

such an appeal); State v. Veney, 327 N.J. Super. 458, 461 (App. 

Div. 2000) ("[R]estrictions of the State's right to appeal rest

upon the principle that appeals of sentences implicate the 

Double Jeopardy Clauses of the federal and state constitutions

. . . ."); R. 2:3-1 (identifying the limited grounds when the 

State can appeal in a criminal action).

Here we are not dealing with an illegal sentence. Thus, we 

return to the language of subsection k, which expressly allows 
9 A-2477-14T3

the State to appeal. Without the phrase "for a criminal offense 

as defined in subsection b. of this section," the meaning of the 

language of subsection k is clear: the ten-day restriction 

applies to the denial of a DORO sought in connection with a

sentence. Accordingly, the question is what does the phrase 

mean. The only logical interpretation is that the phrase 

references the provision of the Act that defines a criminal 

offense covered by the Act. As already pointed out, the 

definition of the crimes covered by the Act is found in N.J.S.A.

2C:35-5.6(c). That interpretation is also consistent with the 

plain reading of the phrase as it references a "criminal 

offense." Such an interpretation is also consistent with the 

intent of the statute. Subsection k of N.J.S.A. 2C:35-5.7 

clearly authorizes the State to appeal, within ten days, the 

denial of a DORO sought in connection with the sentence of a 

drug offender.

The Legislature clearly wanted to give prosecutors the 

right to appeal. Indeed, in the Senate Judiciary Committee's

statement to the original bill, the Committee noted: "The bill 

also expressly authorizes the prosecuting agency to appeal any 

determination by a court not to issue a 'stay-away' order." 

Senate Judiciary Comm., Statement to S. 1697, 208th Leg., 2d 

Sess., at 1-2 (Feb. 18, 1999). Accordingly, our interpretation 
10 A-2477-14T3

of the Act is consistent with the State's right to appeal. That 

appeal, however, must be filed within ten days to avoid double 

jeopardy concerns.

Counsel for defendants suggests that the reference to 

subsection b is in fact a reference to N.J.S.A. 2C:35-5.6. 

Counsel arrives at that interpretation by pointing out that 

subsection b of N.J.S.A. 2C:35-5.7 has within it a reference to 

subsection b of N.J.S.A. 2C:35-5.6. See N.J.S.A. 2C:35-5.7(b)

("[T]he court . . . shall . . . issue an order prohibiting the 

person from entering any place defined by subsection b. of 

section 3 of P.L.1999, c. 334 ([N.J.S.A. 2C:35-5.6]) . . . ."). 

The reference to subsection b of N.J.S.A. 2C:35-5.6 is to the 

definition of "place." Accordingly, we again return to the 

plain and logical meaning of the Act, which is that the 

reference to "a criminal offense" is a reference to the 

definition of the crimes covered by the Act found in N.J.S.A.

2C:35-5.6(c).

Our interpretation of N.J.S.A. 2C:35-5.7(k) is also 

consistent with the legislative history of the Act. As already 

noted, the Act has always provided the State with a ten-day 

right to appeal the denial of a DORO at sentencing. See L.

1999, c. 334, § 4. The Act was amended in 2001, 2004, 2006 and 

2011. See L. 2001, c. 365, § 2; L. 2004, c. 130, § 14; L. 2006, 
11 A-2477-14T3

c. 47, § 27; L. 2011, c. 44, § 1. All of those amendments 

included the relevant language concerning an appeal of the 

denial of a DORO. See ibid. The 2001 amendment moved the 

language concerning the time to appeal from subsection h to a 

new subsection k. L. 2001, c. 365, § 2 (codified as amended at 

N.J.S.A. 2C:35-5.7(k)). The 2001 amendment also moved the 

original language in subsection b to subsection h. Ibid.

(codified as amended at N.J.S.A 2C:35-5.7(h)). Further, the 

2001 amendment added new provisions to address the procedures 

for applying for a restraining order when the person was first 

charged with a drug offense. Ibid. (codified as amended at

N.J.S.A. 2C:35-5.7(a)-(d)). The amendment, however, did not 

update the language to incorporate the subsection change within 

the paragraph regarding the State's right to appeal. Ibid.

(codified as amended at N.J.S.A. 2C:35-5.7(k)). Thus, while 

N.J.S.A. 2C:35-5.7(k) still refers to subsection b, we are 

satisfied the Legislature intended that the statute be edited in 

conformity with the other revisions to refer to subsection h.

Finally, we address whether the ten-day period should be 

strictly enforced. The precedent concerning an analogous tenday appeal period from a criminal sentence, coupled with double 

jeopardy principles, mandates strict enforcement. Pursuant to

N.J.S.A. 2C:44-1(f)(2), the State is authorized to appeal the 
12 A-2477-14T3

downgrade or non-custodial sentence regarding convictions for 

first or second degree crimes. The language of N.J.S.A. 2C:44-

1(f)(2) authorizing the State's right of appeal is nearly

identical to the language in the DORO Act. Compare N.J.S.A.

2C:35-5.7(k) ("[T]he sentence . . . shall not become final for 

ten days in order to permit the appeal of the court's findings 

by the prosecution.") with N.J.S.A. 2C:44-1(f)(2) ("[S]uch 

sentence shall not become final for 10 days in order to permit 

the appeal of such sentence by the prosecution."). In 

construing that language, our Supreme Court has held that 

"[s]trict compliance with the terms of the statute is required; 

failure to perfect an appeal within the ten-day period will 

result in dismissal of the State's appeal." State v. Sanders, 

107 N.J. 609, 616 (1987); see also State v. Gould, 352 N.J. 

Super. 313, 318-19 (App. Div. 2002) (dismissing the State's 

appeal of a probationary sentence that was not filed within ten 

days as mandated by N.J.S.A. 2C:44-1(f)(2)).

Here, both defendants were sentenced on December 2, 2014. 

The State filed its notices of appeal on December 23, 2014. 

Thus, both notices were filed beyond the ten-day period.

The notices of appeal filed by the State reference the 

December 9, 2014 orders. Those orders granted defendants' 

cross-motions to preclude the imposition of a DORO. Because 
13 A-2477-14T3

double jeopardy would otherwise begin to attach at the time of 

sentencing, N.J.S.A. 2C:35-5.7(k) specifically provides that the 

sentence imposed by the court "shall not become final for ten 

days in order to permit the appeal of the court's findings by 

the prosecution." Here, the State's time to appeal began to run 

the day after the sentence; that is, December 3, 2014. See

Johnson, supra, 376 N.J. Super. at 173 ("[T]he ten-day period 

commences on the day after sentence is pronounced . . . .").

The State also argues that its notices were actually mailed 

on December 17, 2014. The mailing of a notice of appeal is not 

the controlling date; rather, the controlling date is the date 

of filing. See State v. One 1986 Subaru, 230 N.J. Super. 451, 

458 (App. Div. 1989), aff’d in part, rev’d in part, 120 N.J. 310 

(1990); Pressler & Verniero, Current N.J. Court Rules, comment 2 

on R. 1:5-6 (2016) ("[F]iling can only be effected by the 

receipt of the filed paper by the designated office."). Indeed, 

the State conceded this point at oral argument.

In summary, because the DORO Act requires an appeal from 

the denial of a DORO sought at sentencing to be filed within ten 

days, and because the State did not file within that time, both 

appeals must be dismissed for lack of jurisdiction.

Dismissed.