SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4647-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY LOPES MOREIRA,

a/k/a JEFF MOREIRA, 

Defendant-Appellant.

______________________________

Submitted June 5, 2019 – Decided June 20, 2019

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Warren County, Accusation Nos. 13-04-

0146, 13-10-0488, and 13-10-0489. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Molly O'Donnell Meng, Assistant Deputy 

Public Defender, of counsel and on the brief). 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Adam David Klein, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Defendant Jeffrey L. Moreira appeals from a four-year sentence he 

received on May 22, 2018, for violating the terms of his drug court probation. 

We affirm.

We take the following facts from the record. In April 2013, defendant 

was charged under Accusation Number 13-04-0146 (Acc. No. 0146) with thirddegree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and pled guilty 

to the charge in May 2013. He was sentenced to a two-year probationary term 

conditioned upon ninety days in the county jail, with leave to serve his jail 

sentence in the County Labor Assistance Program.

In October 2013, defendant was charged under Accusation Number 13-

10-0488 (Acc. No. 0488) with fourth-degree unlawful taking of a means of 

conveyance, N.J.S.A. 2C:20-10(b), and third-degree theft by unlawful taking, 

N.J.S.A. 2C:20-3(a). He was also charged under Accusation Number 13-10-

0489 (Acc. No. 0489) with third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1). He pled guilty to both accusations pursuant to a plea agreement.

In March 2014, defendant was sentenced to: (1) two years of probation for 

each of the charges of Acc. No. 0488, each conditioned upon 364 days in the 

county jail; and (2) two years of probation for the single charge of Acc. No. 

0489, conditioned upon 364 days in the county jail. These sentences were to 
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run concurrently and defendant was allowed to serve up to 180 days of the jail 

sentence in a long-term in-patient addiction rehabilitation program after the 

program was completed.

Defendant violated the terms of his probation. He failed to: report to his 

probation officer at least ten times, cooperate with the required treatment and 

counseling, pay financial obligations, and notify probation of his employment 

status. Therefore, in May 2016, he pled guilty to a violation of probation (VOP) 

under all three accusation numbers. Defendant admitted he was sanctioned 

twelve times in drug court, waived his right to a VOP hearing, and pled guilty 

to the VOPs under each accusation. The judge terminated defendant's terms of 

probation and sentenced him to concurrent five-year terms in drug court under 

each accusation number.

Following his guilty pleas, defendant was resentenced in December 2017. 

The judge considered defendant's drug court sanctions, VOPs, and positive drug 

screens since his admission to drug court. The judge noted the third-degree 

counts each carried a five-year prison sentence and the fourth-degree count an 

eighteen-month sentence. The judge stated he "had hoped . . . [defendant] would 

take it upon [himself] to go into [Veterans Assistance], get evaluated and get 

treatment[,]" but he failed to do so. The judge stated that, as a last resort, he 
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would order defendant into a long-term in-patient treatment program, and also 

ordered him to continue with the terms of drug court probation on all three 

accusations, including all fines and penalties.

Defendant was discharged from the in-patient program after less than one 

month because he had an altercation and threatened to kill another patient. At 

his subsequent VOP hearing, the judge considered testimony from defendant's

probation officer who stated defendant caused the disruption, which prompted 

his discharge. The in-patient program discharge note admitted into evidence

corroborated the incident and the probation officer's testimony. The judge 

concluded defendant had violated his probation and scheduled his sentencing.

The judge made the following findings at sentencing:

[T]his has been probably one of the most 

difficult decisions that the [c]ourt has to make because 

of several reasons. One, you're a veteran and I have 

enormous respect for veterans. Number two, you're a 

[d]rug [c]ourt participant and as [the prosecutor] said in 

her colloquy, we bent over backwards to allow you to 

stay in [d]rug [c]ourt on all of those different 

sanctionable events on the violations of probation.

And while you have been polite, you've never 

raised your voice. You've always been nice for lack of 

a better term when you appeared before me. You 

haven't always been honest. That's for certain. And 

you haven't always done the right thing.
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A-4647-17T2

We've basically run out of options. There isn't 

any treatment recommendation that hasn't been offered 

to you that we could offer again that I could even hope 

that you would comply with. I also would say that 

because of the number of chances that you've been 

given, probation is certainly not warranted any longer 

in the case.

And you do have a lot of jail credit. But there has 

to be some consequences for your actions. Therefore, I 

am going to sentence you to four years New Jersey 

State prison, concurrent on all charges. Probation will 

be terminated without improvement. . . .

. . . As far as the aggravating and mitigating 

factors, aggravating factors [three] and [nine]; 

mitigating factor [ten] were found on [Acc. No. 0146]. 

I continue to find aggravating factors [three] and [nine] 

as they relate to the underlying offense.

. . . Aggravating factors [three] and [nine] were 

also found in [Acc. No. 0488]. Mitigating factors 

[four], [six] and [ten] were found. I no longer find 

mitigating factors [six] and [ten]. I do find mitigating 

factor [four] continues to exist. And on [Acc. No. 

0489], aggravating factors [three] and [nine] continue 

to exist. [I find] [m]itigating factor [four]. But I no 

longer find mitigating factor [ten].

. . . . 

. . . [Nine] months, [and twenty-eight] days[] . . . 

[o]n a four year sentence the minimum time you would 

have to spend in state prison to be eligible for parole. 

You obviously have more jail credit than that. But 

that's a function of [p]arole, not this [c]ourt. And that's 

an estimated time that you have to spend in custody.
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A judgment of conviction entered terminating probation without 

improvement, and imposing a four-year prison sentence as to all third-degree 

counts and an eighteen-month prison sentence for the sole fourth-degree count, 

all to run concurrently. Under Acc. No. 0146, the judge applied 350 days of jail 

credit, 230 days of Rosado1credit, and 120 days of prior-service credit to the 

sentence imposed. On Acc. No. 0488, the judge applied 331 days of jail credit, 

241 days of Rosado credit, and 120 days of prior-service credit to the sentence 

imposed. As to Acc. No. 0489, the judge applied 338 days of jail credit, 234 

days of Rosado credit, and 120 days of prior-service credit to the sentence 

imposed.

I.

Defendant raises the following point on appeal:

NEW JERSEY'S PROBATION REVOCATION 

STATUTE ALLOWS A JUDGE TO ENGAGE IN 

FACT FINDING THAT RESULTS IN A SENTENCE 

ABOVE THE STATUTORY MAXIMUM AND SO 

VIOLATES THE SIXTH AMENDMENT OF THE 

UNITED STATES CONSTITUTION.

Our review of a sentencing decision is limited. State v. Miller, 205 N.J. 

109, 127 (2011). We do "not substitute [our] judgment for that of the trial court." 

 

1

 State v. Rosado, 131 N.J. 423 (1993).
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State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998) (citing State v. Roth, 

95 N.J. 334, 365 (1984)). Instead, we "assess the aggravating and mitigating 

factors to determine whether they 'were based upon competent credible evidence 

in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95 

N.J. at 364-65). We will "modify sentences when the application of the facts to 

the law is such a clear error of judgment that it shocks the judicial conscience." 

Roth, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).

II.

Defendant argues the imposition of a four-year sentence for a VOP, in 

addition to the four-plus years of probation he served, is unconstitutional and in 

violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S. 

466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Defendant also 

claims he did not receive custody credit for the time spent on probation and in 

drug court.

"With respect to a defendant who violates a probationary condition, the 

initial question is whether the violation justifies revocation of probation. Some 

violations are more serious than others." State v. DiAngelo, 434 N.J. Super. 

443, 455 (App. Div. 2014) (quoting State v. Baylass, 114 N.J. 169, 175 (1989)).

Once a court determines "the defendant has inexcusably 

failed to comply with a substantial requirement 
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imposed as a condition of the order or if he has been 

convicted of another offense, [the court] may revoke 

the suspension or probation and sentence or resentence 

the defendant," N.J.S.A. 2C:45–3(a)(4), imposing "any 

sentence that might have been imposed originally for 

the offense of which he was convicted." N.J.S.A. 

2C:45–3(b).

[Ibid. (alteration in original).]

The Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to -31, 

provides courts with alternatives to traditional disposition, such as special 

probation, i.e., drug court. Similar to the court's power to impose jail time 

following the revocation of regular probation, "[i]f 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." N.J.S.A. 2C:35-14(f)(4).

"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.'" State v. 

Bishop, 429 N.J. Super. 533, 540 (App. Div. 2013) (quoting State v. Meyer, 192 

N.J. 421, 434-35 (2007)).
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A-4647-17T2

[S]tated 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.

[Id., 429 N.J. Super. at 541 (emphasis added) (citing 

State v. Clarke, 203 N.J. 166, 175 (2010)).]

Furthermore, "[t]he sentence imposed after revocation of probation should 

be viewed as focusing on the original offense rather than on the violation of 

probation as a separate offense." In re State ex rel. C.V., 201 N.J. 281, 297 

(2010) (quoting State v. Ryan, 86 N.J. 1, 8 (1981)). "Imposing the maximum 

sentence for the original offense after revocation of probation without grand jury 

indictment or trial by jury is not unconstitutional, since the new sentence is only 

a sanction for defendant's original offense for which he had been properly tried." 

Ryan, 86 N.J. at 8 (emphasis added) (citation omitted).

In deciding a sentence for a probation violation the "court should consider 

the aggravating factors found to exist at the original hearing and the mitigating 

factors as affected by the probation violations." State v. Baylass, 114 N.J. 169, 
10 A-4647-17T2

178 (1989). While it may "be a rare case in which the balance of the original 

aggravating factors and surviving mitigating factors weigh in favor of a term of 

imprisonment greater than the presumptive sentence or of a period of parole 

ineligibility[,]" such a sentence is permissible where the aggravating factors 

outweigh the mitigating. Ibid.

Here, there was ample evidence to support the sentence imposed. The 

charge at issue was defendant's possession of heroin under Acc. No. 0489. 

N.J.S.A. 2C:43-6(a)(3) states "[i]n the case of a crime of the third degree, for a 

specific term of years which shall be fixed by the court and shall be between 

three years and five years[.]" The four-year sentence given after defendant's 

probation was revoked was less than the five-year maximum and within the 

range of the original sentence, and thus permitted by N.J.S.A. 2C:35-14.

The trial judge properly considered the aggravating factors assigned 

during the original disposition of Acc. No. 0489, finding "aggravating factors 

[three] and [nine] continue[d] to exist" from the original sentencing. The judge

also continued to find mitigating factor four, but did not continue to find 

mitigating factor ten after the VOP was committed. Thus, the judge adhered to

In re State ex rel. C.V. by considering the aggravating factors as to the original 
11 A-4647-17T2

charge and the mitigating factors as to the VOP itself, and violated neither 

Apprendi2 nor Blakely.

3

A presumption of imprisonment existed when defendant was sentenced to 

drug court after he failed to comply with his previous probation terms and 

committed multiple VOPs. Bishop, 429 N.J. Super. at 541. The judge noted the 

multiple opportunities given to defendant, that the court had "run out of 

[treatment] options[,]" and correctly concluded probation was no longer 

warranted. Thus, probation followed by incarceration was not an extended 

sentence and does not shock the judicial conscience.

Finally, we reject defendant's argument regarding custody credit. The 

Supreme Court has noted:

[T]he thrust of . . . [Rule 3:21-8] is to restrict 

credit to "custodial" confinements, either in jail or in a 

state hospital. Ordinarily, a defendant's confinement is 

custodial if it is imposed by a court, see State v. Lee, 

60 N.J. 53, 58 (1972), and involuntary in the sense that 

a defendant is not "at liberty by an exercise of his own 

will to choose to leave that facility." State v. Smeen, 

147 N.J. Super. 229, 233 (App. Div. 1977). Thus, in 

 

2

 Holding any fact other than a prior conviction which increases a penalty 

beyond the statutory maximum "must be submitted to a jury, and proved beyond 

a reasonable doubt." Apprendi, 530 U.S. at 490.

3

 Reversing the imposition of a ninety-month sentence where a defendant was 

subject to a fifty-three-month sentence because the sentencing court considered 

facts not in evidence or found by a jury. Blakely, 542 U.S. at 303-04.
12 A-4647-17T2

State v. Reyes, 207 N.J. Super. 126 (App. Div. 1986), 

the Appellate Division denied credit to [a] defendant 

for time spent in a residential drug treatment program 

as a condition of probation. The court concluded that 

"[a]ttendance at such a 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." Id. at 144.

[State v. Towey, 114 N.J. 69, 85–86 (1989) (last 

alteration in original) (emphasis added).]

Here, the judge credited defendant with the appropriate amount of jail time 

credit, Rosado credit, and gap-time credit under each accusation. Pursuant to 

Towey, the time defendant spent on special probation at the in-patient program 

did not qualify as custody credit because it was a condition of his probation, not 

a form of custody.

Affirmed.