SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2538-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIAN D. PETWAY,

Defendant-Appellant.

Argued January 22, 2019 – Decided February 25, 2019

Before Judges Messano, Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment Nos. 15-02-

0188 and 17-08-0747.

Brian P. Keenan, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Brian P. Keenan, of counsel 

and on the brief).

Carol M. Henderson, Assistant Attorney General, 

argued the cause for respondent (Gurbir S. Grewal, 

Attorney General, attorney; Carol M. Henderson, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-2538-17T3

PER CURIAM

Defendant Adrian D. Petway appeals from the denial of his motion for jail 

credits for time spent in a court-ordered halfway house pursuant to his sentence 

for a violation of special probation under N.J.S.A. 2C:35-14 (Drug Court 

Statute). The sole issue presented in this appeal is whether Hansen House 

qualifies as "a residential treatment facility" under the Drug Court Statute, 

entitling defendant to jail credits pursuant to Rule 3:21-8(b). Because we 

conclude the sentencing judge misapplied governing law and lacked a complete 

record, we remand for a plenary hearing. 

I.

We commence our review with a brief discussion of the relevant legal 

principles to give context to the judge's decision, recognizing a trial court's 

"award of jail credits raises issues of law that we review de novo." State v. 

Walters, 445 N.J. Super 596, 600 (App. Div. 2016); see also State v. Maurer, 

438 N.J. Super. 402, 411 (App. Div. 2014) ("Our review of a trial court's 

application of the Drug Court Statute and Manual[1]to a defendant involves a 

question of law.").

 

1 Admin. Office of the Courts, Manual for Operation of Adult Drug Courts in 

New Jersey, Directive #2-02 (July 2002) (Manual), 

http://www.njcourts.gov/attorneys/directives.html. 
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It is well established that "Drug Courts are specialized courts within the 

Superior Court that target drug-involved 'offenders who are most likely to 

benefit from treatment and do not pose a risk of public safety.'" State v. Meyer, 

192 N.J. 421, 428 (2007) (quoting Manual at 3). The Drug Court team is 

comprised of judges, prosecutors, defense attorneys and drug treatment 

professionals, who closely monitor drug-dependent offenders sentenced to 

special probation (Track 1), or to regular probation with mandatory drug 

treatment (Track 2). Manual at 3. 

Pertinent to this appeal, subsection (f)(4) of the Drug Court Statute 

provides: 

If the court permanently revokes the person's special 

probation pursuant to this subsection, the court shall 

impose any sentence . . . that would have been required 

to be imposed, originally for the offense for which the 

person was convicted . . . . If the court . . . is required 

. . . to impose a term of imprisonment, the person shall 

receive credit . . . for each day during which the person 

satisfactorily complied with the terms and conditions of 

special probation while committed . . . to a residential 

treatment facility. The court, in determining the 

number of credits for time spent in a residential 

treatment facility, shall consider the recommendations 

of the treatment provider.

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

Similarly, Rule 3:21-8(b), states: 
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While committed to a residential treatment facility, the 

defendant shall receive credit on the term of a custodial 

sentence for each day during which the defendant 

satisfactorily complied with the terms and conditions of 

Drug Court "special probation" pursuant to N.J.S.A. 

2C:35-14 . . . . The court, in determining the number of 

credits for time spent in a residential treatment facility, 

shall consider the recommendations of the treatment 

provider.2 

II.

Against that backdrop, we recite the relevant facts and procedural history. 

On April 19, 2016, defendant pled guilty to second-degree robbery, N.J.S.A. 

2C:15-1(a)(2). Pursuant to the negotiated plea agreement, the State 

recommended defendant's "admi[ssion] to Drug Court special probation under 

all standard conditions: [p]robation up to [five] years[,] [Treatment Assessment 

Services for the Courts (TASC)] [r]ecommendation[, and i]ntensive [o]utpatient 

treatment" (initial plea agreement). Alternatively, if defendant failed to comply, 

the State recommended a five-year term of imprisonment, subject to the eightyfive percent parole ineligibility period mandated by the No Early Release Act 

 

2

 Rule 3:21-8(b) was adopted on September 1, 2017, to include Track 2 

participants, whereas the former Rule pertained only to Track 1 participants, and 

dispensed with the requirement that the facility must be "substantially equivalent 

to custody in jail or a state hospital." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 1.2.3 on R. 3:21-8 (2018).
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(NERA), N.J.S.A. 2C:43-7.2. On May 13, 2016, defendant was sentenced to 

special probation as a Track 1 participant in accordance with the terms of the 

initial plea agreement.3 

Within two months, defendant absconded from the Drug Court Program. 

He was arrested on September 11, 2016, and tested positive for cocaine. On 

October 13, 2016, defendant pled guilty to a violation of his Drug Court 

probation (VOP) before another judge. In return, the State agreed that defendant 

"remain in Drug Court, [TASC] recommendation, Halfway House, 

recommended [sic]" (second plea agreement). Defendant also remained subject 

to the alternate sentence set forth in his initial plea agreement. 

Notably, in sentencing defendant in accordance with the terms of the 

second plea agreement, the judge ordered "that he receive treatment at a halfway 

house, as recommended by the [TASC] evaluator . . . [with specific] placement 

in the discretion of [the] Drug Court team." The judge explained that "whatever 

location is available and appropriate for [defendant]," she wanted him "to begin 

treatment as soon as possible." (Emphasis added). 

 

3

It is unclear from the record why defendant, who was sentenced for a seconddegree crime, was not "committed to the custody of a residential substance use 

disorders treatment facility" pursuant to subsection (d) of the Drug Court 

Statute. 
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On November 22, 2016, defendant was placed at Hansen House, where he 

resided until he successfully completed the program on March 20, 2017. 

Following defendant's release from that facility, however, he failed to follow up 

with intensive outpatient treatment, and failed to report to Drug Court. 

Less than two months later, defendant was arrested by Millville police 

when he ignored an officer's signal to stop his vehicle. Thereafter, defendant 

pled guilty to third-degree eluding, N.J.S.A. 2C:29-2(b), and a VOP. Pursuant 

to the terms of a third plea agreement with the State, defendant was sentenced 

to a five-year term of imprisonment with an eighty-five percent parole 

ineligibility term under NERA for the VOP, and a consecutive four-year prison 

term for the eluding conviction. 

Because the parties disputed defendant's entitlement to jail credits for time 

spent at Hansen House, the judge conducted a hearing, during which she initially 

contemplated "tak[ing] testimony from some individual about the specifics of 

the Hans[e]n Halfway House . . . [such as] a member of [the P]robation 

[Department]." Instead, however, the judge commenced the hearing with her 

"understanding" of the facility:

Hans[e]n House is a halfway house and what that means 

is that it is a type of transitional living facility, whose 

purpose is to provide a supportive environment, that 

includes drug treatment for recovering individuals as 
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well as support groups, employment assistance to assist 

a person in recovery transition to independent and drugfree living.

The entity is unsecured, which means that 

residents may come and go within the parameters of the 

house rules. And, that means they can go to work, they 

can go to school, they can go to meetings off site.

It [i]s also my understanding that if they leave the 

residence without intention to return that . . . 

individual[s] on Track 2 [sic4] of the Drug Court 

Program would not be subject to an escape charge, but 

instead would be subject to potentially a charge of 

violating their probation.

The judge did not cite a source for her synopsis of Hansen House's 

parameters. Neither the prosecutor nor defense counsel objected to the court's 

account. Defendant, who was the only witness to testify at the hearing, 

described a more restrictive level of freedom. 

Specifically, defendant stated that, with the exception of work and 

furloughs, he and the other residents of Hansen House were not permitted to 

leave the facility. Residents did not select their places of employment, and they 

were escorted by staff counselors to and from work. If defendant did not report 

 

4 The judge and both parties acknowledged that defendant was a Track 1

participant, but the judgment of conviction pertaining to his second-degree 

robbery charge incorrectly reflects that he was a Track 2 participant. On 

remand, the judgment of conviction should be amended accordingly.
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to work, or left work without approval, "that would have been a problem . . . and

. . . [the counselors] would have called the authorities, as well as [his] probation 

officer." Family and friends were permitted to visit on Sundays. Furloughs 

required preapproval. Defendant attended Alcoholics Anonymous (AA) and 

Narcotics Anonymous (NA) meetings at Hansen House, and he was not 

permitted to attend meetings elsewhere. He had no control over his schedule, 

except, "[t]o a certain degree" he had control over his meals. For example, 

defendant "could scramble [his] own eggs." He also was permitted to exercise. 

In sum, defendant was placed at Hansen House following a court-ordered TASC 

evaluation; he had no choice in that placement; and he successfully completed 

the program as evidenced by his receipt of "a [sobriety] coin." 

At the conclusion of the hearing, the judge rendered an oral decision, 

denying defendant's application. In doing so, the judge cited subsection (d) of 

the Drug Court Statute, which unlike subsection (f)(4) provides, "A person 

placed into a residential treatment facility pursuant to this section shall be 

deemed to be subject to official detention for the purposes of N.J.S.[A.] 2C:29-

5 (escape)." Because the judge did not locate any legal definition of a residential 

treatment facility, she turned to our decision in State v. Reyes, 207 N.J. Super. 

126 (App. Div. 1986), for guidance. 
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However, in Reyes, we determined the defendant, who was not sentenced 

to special Drug Court probation, did not demonstrate that the time he spent in a 

residential drug program, was "so confining as to be substantially equivalent to 

custody in jail or in a state hospital." Id. at 143. In particular, participants were 

not locked in the facility, and were not subject to an escape charge if they left 

without permission. Id. at 144. We thus concluded, "Attendance at [a drug 

treatment] program is not the equivalent of 'custody' so long as there are no 

physical restraints and a participant retains the option to leave without 

committing an additional crime." Ibid. 

Here, the judge determined defendant's testimony did not establish that 

his placement at Hansen House would "subject [him] to a prosecution for escape, 

if he were to leave th[at] facility." The judge based her decision on the absence 

of testimony that defendant "could not go home . . . [a]nd . . . most importantly 

. . . that he could get a furlough from the facility." The judge concluded Hansen 

House is "not a locked-down facility where [defendant] was not permitted to 

leave." Rather, "the term 'custody' used throughout [the Drug Statute] . . . is a 

more confining custody" than what defendant experienced at Hansen House. 

Defendant's direct appeal was initially listed on our excessive sentence 

calendar. R. 2:9-11. We postponed the matter, transferring it to a plenary 
10 A-2538-17T3

calendar, to afford the parties the opportunity to fully brief the "sole issue of

whether defendant is entitled to receive jail credit for his time at Hans[e]n 

House." 

Defendant maintains the trial judge erred in applying the "Reyes preN.J.S.A. 2C:35-14, and pre-amendment R[ule] 3:21-8 understanding of the jail 

credit requirements." Defendant argues the trial court improperly decided the 

issue by determining whether his placement at Hansen House was functionally 

equivalent to custody in jail. We agree. 

Although not contained specifically within the Drug Court Statute, the 

definition of a "residential treatment facility" is set forth in N.J.S.A. 2C:35-2, 

which pertains to terms used in chapter 35 of Title 2C of the New Jersey statutes. 

Specifically, a "residential treatment facility" is defined as "any facility licensed 

and approved by the Department of Human Services [(DHS)] and which is 

approved by any county probation department for the inpatient treatment and 

rehabilitation of drug or alcohol dependent persons." N.J.S.A. 2C:35-2. Absent 

from the statutory definition, or subsection (f)(4) of the Drug Court Statute, is 

any requirement that the facility must be so confining as to constitute a jail-like 

setting. Nor is the type of "treatment" limited in any way, thereby dispelling the 
11 A-2538-17T3

State's contention that mandatory attendance in the facility at AA and NA 

meetings is necessarily insufficient to constitute a residential treatment facility.

Because the judge improperly declined to award jail credits based on a 

misapplication of the governing law, and did not determine whether Hansen 

House met the statutory definition of a residential treatment facility, we remand 

for reconsideration following a rehearing on that issue.

5

 At the rehearing, proofs 

should be elicited from the treatment provider establishing whether or not 

Hansen House is "licensed and approved by the [DHS]." Finally, as the judge 

alluded to at the outset of the initial hearing, a member of the Probation 

Department should also testify at the remand hearing. That testimony should 

include whether Hansen House is approved by Atlantic County's Probation 

Department and otherwise falls within the statutory definition of a residential 

drug treatment facility. 

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.

 

5 Defendant provided a copy of a list of "Treatment Agenc[ies,]" purportedly 

from DHS's Division of Mental Health and Addiction Services, listing treatment 

facilities for Atlantic County. Because the record does not indicate the list was 

provided to the sentencing judge, it is inappropriate for our consideration on 

appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014).