STATE OF NEW JERSEY VS. CHRISTOPHER HARRIS STATE OF NEW JERSEY VS. DONALD J. FALCONE STATE OF NEW JERSEY VS. JOELL A. FOGG STATE OF NEW JERSEY VS. GARY R. NELSON STATE OF NEW JERSEY VS. MANUEL SANTIAGO STATE OF NEW JERSEY VS. THOMAS EDGER STATE OF NEW JERSEY VS. DAVINE J. RICE STATE OF NEW JERSEY VS. FRANK R. MATLACK (19-12-0713, 18-08-0615, 19-08-0419, 19-10-00570, 20-01-0041, 17-10-0731, 19-10-0561, 19-12-0734, and 18-06-0455, CAPE MAY COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2256-19
A-2876-19
A-3509-19 RECORD IMPOUNDED
A-4629-19
A-0075-20 RECORD IMPOUNDED
A-0234-20
A-0237-20
A-0547-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. February 18, 2021
APPELLATE DIVISION
CHRISTOPHER HARRIS,
Defendant-Respondent.
________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONALD J. FALCONE,
Defendant-Respondent.
________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOELL A. FOGG a/k/a
MACKIE JOEY, A. FOGG,
FOGG JOSEPH,
Defendant-Respondent.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY R. NELSON,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MANUEL SANTIAGO,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS EDGER,
Defendant-Appellant.
________________________
A-2256-19
2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVINE J. RICE,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK R. MATLACK,
Defendant-Appellant.
________________________
Argued January 4, 2021 – Decided February 18, 2021
Before Judges Fasciale, Rothstadt and Susswein.
On appeal from interlocutory orders of the Superior
Court of New Jersey, Law Division, Cape May
County, Indictment Nos. 19-12-0713, 18-08-0615, 19-
08-0419, 19-10-0570, and 20-01-0041 and from final
orders of the Superior Court of New Jersey, Law
Division, Cape May County, Indictment Nos. 17-10-
0731, 19-10-0561, 19-12-0734, and 18-06-0455.
Gretchen A. Pickering, Senior Assistant Prosecutor,
argued the cause for appellants in A-2256-19, A-2876-
19, A-3509-19, and for respondents in A-4629-19, A-
0075-20, A-0234-20, A-0237-20 and A-0547-20
(Jeffrey H. Sutherland, Cape May County Prosecutor,
A-2256-19
3
attorney; Gretchen A. Pickering, of counsel and on the
briefs).
Stephen P. Hunter, Deputy Public Defender, argued
the cause for appellants in A-4629-19, A-0075-20, A-
0234-20, A-0237-20, A-0547-20 and for respondents
in A-2256-19, A-2876-19 and A-3509-19 (Joseph E.
Krakora, Public Defender, attorney; Stephen P. Hunter
and Jesse E. Deane, Assistant Deputy Public
Defender, of counsel and on the briefs).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Once again, we are tasked to interpret the statutory admission criteria for
the Drug Court program, which combats the hopelessness of addiction with the
hopefulness of treatment. See State v. Meyer, 192 N.J. 421, 423 (2007)
(emphasizing that the Drug Court program "address[es] the unique problems
and needs posed by non-violent, drug-dependent offenders who, through
intensive supervision and treatment, have the high potential for recovery and
building a productive life"). In State v. Figaro, we recently explained the
important distinctions between the two separate "tracks" by which defendants
are admitted to Drug Court. 462 N.J. Super. 564 (App Div. 2020). A Track
One candidate1 must meet all the eligibility criteria for "special probation"
1
Throughout this opinion we use the term "candidate" rather than "applicant"
because defendants may be ordered to participate in the Drug Court program
without having voluntarily sought treatment and without consenting to
A-2256-19
4
enumerated in N.J.S.A. 2C:35-14(a). A Track Two candidate, in contrast, is
not automatically disqualified from Drug Court on the grounds that he or she
does not satisfy all the statutory prerequisites for special probation. R ather,
the criteria enumerated in N.J.S.A. 2C:35-14(a) may be considered as relevant
factors bearing on a Track Two defendant's suitability for participation in Drug
Court. Id. at 574–79.
We focus in this opinion on the criteria for determining whether a
defendant is a Track One or Track Two candidate. The eight cases before us
raise essentially the same statutory interpretation issues. 2 The State
contends—and the trial court agreed—a defendant is a Track One candidate if
he previously was convicted of a crime that was subject to the presumption of
imprisonment set forth in N.J.S.A. 2C:44-1(d) or previously was sentenced to
state prison. Defendants argue the Track One designation applies only to a
Drug Court candidate who is facing the presumption of imprisonment or a
mandatory term of parole ineligibility for the present conviction for which he
(continued)
admission. See N.J.S.A. 2C:35-14.2(b). We note that all of the defendants
before us in this appeal voluntarily applied for Drug Court.
2
We note that all eight defendants are now represented by the same Deputy
Public Defender and the State in all eight cases is represented by the same
Senior Assistant County Prosecutor.
A-2256-19
5
or she is to be sentenced. In resolving this statutory interpretation dispute, we
address a question of first impression, that is, whether the special probation
statute, N.J.S.A. 2C:35-14, was impliedly amended by subsequently-enacted
statutory features that are designed to identify and deal with defendants in
need of treatment who do not voluntarily apply to Drug Court, N.J.S.A. 2C:35-
14.1 and N.J.S.A. 2C:35-14.2.
After carefully examining the relevant statutes, legislative history, and
case law, we reject the State's interpretation of N.J.S.A. 2C:35-14 and hold
that the trial court erred in ruling that a defendant is a Track One candidate by
reason of past convictions or having previously been sentenced to state prison.
Our goal in this opinion is to distill a set of rules for judges to apply when
determining, first, whether a drug dependent defendant is a Track One or
Track Two candidate for Drug Court; second, whether the defendant is legally
eligible to be sentenced to Drug Court; and third, whether a legally eligible
candidate should be admitted to Drug Court in the exercise of judicial
sentencing discretion.
I.
We granted defendants Edger, Santiago, Nelson, Rice, and Matlack leave
to appeal Law Division orders denying their applications for admission to
Drug Court. We calendared their appeals back-to-back and now consolidate
A-2256-19
6
them for the purpose of issuing a single opinion. We also granted the State
leave to appeal Law Division orders granting defendants Falcone, Fogg, and
Harris admission to Drug Court. Those orders were entered by a different
judge than the judge who denied admission to the other five defendants in th is
consolidated appeal.
A.
We briefly set forth the relevant circumstances surrounding each appeal.
Defendants' Appeals
Thomas Edger
Defendant Edger was indicted on one count of fourth-degree aggravated
assault by throwing bodily fluids at a law enforcement officer, N.J.S.A. 2C:12-
13, and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a). He
also faces another charge for fourth-degree aggravated assault.
Edger was previously convicted of third-degree theft and third-degree
possession of controlled dangerous substances (CDS) for which he was
sentenced to probation. He later violated probation and was resentenced to
three years in state prison. Thereafter, he was again convicted for third -degree
possession of CDS for which he received a three-year state prison sentence.
Edger also was previously convicted of fourth-degree aggravated assault for
which he received a one-year state prison sentence.
A-2256-19
7
The trial court rejected Edger's application for Drug Court. The court
found that Edger was a Track One candidate based on his previous state prison
sentences. The court further ruled that Edger's prior conviction and pending
charge for aggravated assault rendered him ineligible for special probation.
See N.J.S.A. 2C:35-14(a)(7).
After the present appeal was filed, the trial court amplified its decision,
highlighting Edger's significant criminal history and his failure to take
advantage of a previous opportunity for probation. The trial court added that
even if Edger were deemed to be a Track Two candidate, admission to Drug
Court would be inappropriate considering the applicable aggravating and
mitigating factors. The court found aggravating factors three, the risk that the
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent
of the defendant's prior criminal record and the seriousness of the offenses of
which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and nine, the need for
deterring the defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9). The court found that mitigating factor ten, that the defendant is
particularly likely to respond affirmatively to probationary treatment, N.J.S.A.
2C:44-1(b)(10), did not apply.
A-2256-19
8
The record before us does not indicate whether the trial court considered
a Treatment Assessment Services for the Courts (TASC) evaluation or the
recommendation of the evaluator.
Manuel Santiago
Defendant Santiago was indicted on three counts of aggravated assault in
the second and third degree, N.J.S.A. 2C:12-1(b)(1), (12), and (13); one count
of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); and one count of
second-degree child endangerment, N.J.S.A. 2C:24-4(a)(2). Santiago pled
guilty to one count of third-degree aggravated assault on a domestic violence
victim for which he was sentenced to three years of probation. He was
charged with violating this probation once in February and again in March
2020 for failure to cooperate in examination/tests/counseling and for testing
positive for drugs and alcohol.
Santiago was previously convicted of second-degree possession of CDS
with intent to distribute for which he was sentenced to three years in state
prison. He also was previously convicted of three disorderly persons
marijuana offenses and an ordinance violation.
The trial court rejected Santiago's application for Drug Court. The court
found that Santiago was a Track One candidate based on his previous state
prison sentence. The court further ruled that Santiago's prior aggravated
A-2256-19
9
assault conviction rendered him ineligible for special probation. See N.J.S.A.
2C:35-14(a)(6).
After the present appeal was filed, the trial court amplified its decision,
highlighting Santiago's significant criminal history, prior state prison sentence,
and failure to take advantage of a previous opportunity for probation. The trial
court added that even if Santiago were deemed to be a Track Two candidate,
admission to Drug Court would be inappropriate considering the applicable
aggravating and mitigating factors. The court found aggravating factors three,
the risk that the defendant will commit another offense, N.J.S.A. 2C:44-
1(a)(3); six, the extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44 -
1(a)(6); and nine, the need for deterring the defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9). The court found that mitigating
factor ten, that the defendant is particularly likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1(b)(10), did not apply.
The record before us does not indicate whether the trial court considered
a TASC evaluation or the recommendation of the evaluator.
Gary Nelson
Defendant Nelson was indicted on one count of third-degree vehicular
burglary, N.J.S.A. 2C:18-2(a)(1). He also faces a separate pending charge for
A-2256-19
10
fourth-degree aggravated assault by throwing bodily fluid at a law enforcement
officer, N.J.S.A. 2C:12-13.
Nelson was previously convicted of third-degree aggravated assault for
which he was sentenced to five years in state prison, third-degree burglary for
which he was sentenced to two years in state prison, and second-degree
burglary and violation of probation (VOP) for which he was sentenced to three
years in state prison. He also has an extensive history of ordinance violations
and disorderly persons offenses for theft, wandering, and trespass.
The trial court rejected Nelson's application for Drug Court. The cou rt
found that Nelson was a Track One candidate based on his previous second -
degree conviction and state prison sentences. The court further ruled that
Nelson's pending aggravated assault charge, previous aggravated assault
conviction, and numerous other second and third-degree convictions rendered
him ineligible for special probation. See N.S.J.A. 2C:35-14(a)(6), (7), (9).
After the present appeal was filed, the trial court amplified its decision,
highlighting the violent nature of Nelson's criminal history and current
pending charges, prior state prison sentences, and failure to take advantage of
a previous opportunity for probation. The trial court added that even if Nelson
were deemed to be a Track Two candidate, admission to Drug Court would be
inappropriate considering the applicable aggravating and mitigating factors.
A-2256-19
11
The court found aggravating factors three, the risk that the defendant will
commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of the
defendant's prior criminal record and the seriousness of the offenses of which
he has been convicted, N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterring
the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The
court found that mitigating factor ten, that the defendant is particularly likely
to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1(b)(10),
did not apply.
The record before us does not indicate whether the trial court considered
a TASC evaluation or the recommendation of the evaluator.
Davine Rice
Defendant Rice was indicted on two counts of third-degree possession of
CDS, N.J.S.A. 2C:35-10(a)(1), and one count of third-degree possession of
CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). Rice
also faces separate pending charges for possession and distribution of CDS.
Rice was previously convicted for possession of CDS with intent to
distribute for which he was sentenced to four years in state prison. He also has
previously been convicted for third-degree aggravated assault.
The trial court rejected Rice's application for Drug Court. The court
found that Rice was a Track One candidate, noting that if Rice were convicted
A-2256-19
12
of his pending charges of possession of CDS with intent to distribute, he would
be considered a repeat offender and his charges would carry a presumption of
imprisonment with an extended term, if deemed appropriate.3 The trial court
also found that pursuant to N.J.S.A. 2C:35-14(a)(7), defendant was barred
from admission under Track One because of his prior conviction for third-
degree aggravated assault. The trial court also found that Rice's significant
criminal history involving possession of CDS with intent to distribute would
present a danger to the Drug Court community.
After the present appeal was filed, the trial court amplified its decision,
again highlighting Rice's violent criminal history, past convictions and
pending charges involving drug distribution, and prior state prison sentences.
The trial court added that even if Rice were deemed to be a Track Two
candidate, admission to Drug Court would be inappropriate considering the
applicable aggravating and mitigating factors. The court found aggravating
factors three, the risk that the defendant will commit another offense, N.J.S.A.
2C:44-1(a)(3); six, the extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44 -
1(a)(6); and nine, the need for deterring the defendant and others from
3
The record does not indicate whether the prosecutor has filed an application
for an extended term of imprisonment and parole ineligibility pursuant to
N.J.S.A. 2C:43-6(f). See infra note 13.
A-2256-19
13
violating the law, N.J.S.A. 2C:44-1(a)(9). The court found that mitigating
factor ten, that the defendant is particularly likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1(b)(10), did not apply.
The record before us does not indicate whether the trial court considered
a TASC evaluation or the recommendation of the evaluator.
Frank Matlack
Defendant Matlack was indicted on two counts of third-degree
possession of CDS, N.J.S.A. 2C:25-10(a)(1).
Matlack has an extensive criminal history dating back to 1987, including
convictions for second-degree robbery (1987), disorderly persons possession
of marijuana (1994), fourth-degree theft and subsequent VOP (1996),
disorderly persons obstruction (1991), third-degree resisting arrest (1997),
disorderly persons disorderly conduct (2006), and disorderly persons contempt
of a domestic violence order (2007).
The trial court denied Matlack's application for Drug Court. The court
found that Matlack was a Track One candidate based on prior convictions,
previous prison sentences for second-degree robbery and third-degree resisting
arrest, and currently pending third-degree charges.
The trial court also found that given Matlack's criminal history, prior
prison sentences, and prior probationary sentences, "probation would not be
A-2256-19
14
appropriate even if defendant was a Track [Two] offender. The defendant's
criminal history is serious, the risk of re-offense is high, and the defendant is
not likely to respond affirmatively to probation." Unlike the amplifications
issued for the other four defendants, the trial court's decision made no explicit
determinations as to applicable aggravating or mitigating factors.
The record before us does not indicate whether the trial court considered
a TASC evaluation or the recommendation of the evaluator.
State's Appeals
Donald Falcone
Defendant Falcone was indicted on two counts of third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1). He pled guilty to one of the
third-degree CDS counts in exchange for the State's agreement to drop the
other count. Falcone previously served time in prison for a criminal
conviction for aggravated assault.
A substance abuse evaluator determined that Falcone was clinically
eligible for Drug Court. The trial court determined that Falcone was eligible
for Drug Court under Track Two. The trial court found aggravating factors
three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44 -
1(a)(3); six, the extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44 -
A-2256-19
15
1(a)(6); and nine, the need for deterring the defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court also found mitigating
factor ten, that the defendant is particularly likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1(b)(10). The trial court found that
mitigating factor ten outweighed the three aggravating factors when viewed
within the context of the rehabilitative opportunity presented by Drug Court.
The court thereupon sentenced Falcone to Drug Court.
Joell Fogg
Defendant Fogg pled guilty to one count of third-degree possession of
CDS, N.J.S.A. 2C:35-10(a)(1) and was sentenced to five years of probation.
Fogg later incurred new charges of third-degree possession of CDS, N.J.S.A.
2C:35-10(a)(1), and fourth-degree hindering, N.J.S.A. 2C:29-3(b)(1), which
resulted in violation of his original probation. He pled guilty to these charges.
Fogg previously served an out-of-state prison sentence for sexual abuse
of a minor, which the State contends would have constituted second-degree
sexual assault under New Jersey law, N.J.S.A. 2C:14-2(c)(4). Fogg served
another out-of-state prison sentence for failure to register as a sex offender.
A substance abuse evaluator determined that Fogg was clinically eligible
for Drug Court. The trial court determined that Fogg was legally eligible for
Drug Court under Track Two. The trial court found aggravating factors three,
A-2256-19
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the risk that the defendant will commit another offense, N.J.S.A. 2C:44-
1(a)(3); six, the extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-
1(a)(6); and nine, the need for deterring the defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court also found mitigating
factor ten, that the defendant is particularly likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1(b)(10). The trial court found that
mitigating factor ten outweighed the three aggravating factors when viewed
within the context of the rehabilitative opportunity presented by Drug Court.
The court thereupon sentenced Falcone to Drug Court.
Christoph Harris
Defendant Harris was indicted on one count of third-degree possession
of CDS, N.J.S.A. 2C:35-10(a)(1), and a disorderly persons offense for
wandering or prowling to obtain or sell CDS, N.J.S.A. 2C:33-2.1(b). Harris
pled guilty to the third-degree CDS possession charge in exchange for the
State's agreement to drop the disorderly persons offense and to recommend
probation. Harris was sentenced to four years of probation, but later violated
that probation.
Harris was previously convicted in 1998 of third-degree aggravated
assault and third-degree possession of a weapon for an unlawful purpose. In
A-2256-19
17
2005, he was convicted of third-degree possession of CDS and sentenced to
probation. He violated probation two months later by violating a restraining
order and received another probationary sentence. In 2008, Harris was
convicted of third-degree possession of CDS for which he received a three-
year state prison sentence.
A substance abuse evaluator determined that Harris was clinically
eligible for Drug Court. The trial court determined that Harris was legally
eligible for Drug Court under Track Two. The trial court found aggravating
factors three, the risk that the defendant will commit another offense, N.J.S.A.
2C:44-1(a)(3); six, the extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44 -
1(a)(6); and nine, the need for deterring the defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court also found mitigating
factor ten, that the defendant is particularly likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1(b)(10). The trial court found that
mitigating factor ten outweighed the three aggravating factors when viewed
within the context of the rehabilitative opportunity presented by Drug Court.
The court thereupon sentenced Harris to Drug Court.
A-2256-19
18
B.
Defendants Santiago, Nelson, and Matlack present identical arguments
for our consideration, contending:
I. THIS MATTER SHOULD BE REMANDED FOR
RECONSIDERATION OF THE DRUG COURT
APPLICATION BECAUSE THE JUDGE DID NOT
APPLY CORRECT LEGAL PRINCIPLES IN
FINDING THAT [DEFENDANT]'S "PRIOR
CONVICTIONS AND PRISON SENTENCES"
REQUIRE HIM TO MEET THE CONDITIONS OF
N.J.S.A. 2C:35-14 IN ORDER TO BE SENTENCED
TO DRUG COURT ON HIS VOLUNTARY
APPLICATION.
A. THE JUDGE MISINTERPRETED THE
PLAIN LANGUAGE OF N.J.S.A. 2C:35-14,
14.1, AND 14.2 BECAUSE THE
LEGISLATIVE SCHEME UNDER 14.1 AND
14.2 ONLY CREATES A PRESUMPTION IN
FAVOR OF DRUG COURT IN CERTAIN
CASES. ON THEIR PLAIN TERMS, THE
STATUTES NEVER BAR A PERSON WHO IS
VOLUNTARILY APPLYING TO DRUG
COURT.
B. THE JUDGE'S OPINION, WHICH
GRAFTED ADDITIONAL REQUIREMENTS
ONTO TRACK TWO ADMISSION, IS
INCONSISTENT WITH THE DRUG COURT
MANUAL AND CASE LAW, INCLUDING
THIS COURT'S RECENT OPINION IN STATE
V. FIGARO, 462 N.J. SUPER. 564 (APP. DIV.
2020).
A-2256-19
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Defendants Edger and Rice raise the following contentions 4:
[I.] THE TRIAL COURT WAS IN ERROR IN FINDING THAT
[DEFENDANT] IS A TRACK ONE DRUG APPLICANT.
[II.] THE APPLICATION OF [N.J.S.A.] 2C:35-14.1, ET SEQ IS
IMPROPER.
[III.] THE TRIAL COURT WAS IN ERROR IN FAILING
TO APPLY THE DOCTRINE OF LENITY.
The State contends that defendants Falcone, Fogg, and Harris should
have been classified as Track One candidates by reason of their criminal
histories and prior prison sentences, and that they are legally ineligible for
special probation under N.J.S.A. 2C:35-14(a).
Having considered the arguments in light of the record and applicable
legal principles, we reverse the matters in which the trial court denied the Drug
Court applications for defendants Edger, Santiago, Nelson, Rice, and Matlack
and remand for further proceedings consistent with this opinion. We affirm
the decisions to admit defendants Falcone, Fogg, and Harris to Drug Court.
II.
We review the trial court's interpretation of the relevant statutes de novo,
without deference to the court's reasoning, because "appeals construing
4
We note that despite the differences in the wording of the point headings, the
substantive arguments raised by defendants Edger and Rice are substantially
similar to the arguments raised by defendants Santiago, Nelson, and Matlack.
A-2256-19
20
N.J.S.A. 2C:35-14 and the [Drug Court] manuals present solely questions of
law." Figaro, 462 N.J. Super. at 571 (quoting State v. Maurer, 438 N.J. Super.
402, 411 (App. Div. 2014)). We begin our analysis by acknowledging the
distinction between the Drug Court program and the statutory framework that
supports it.
Drug Court is a nationally acclaimed program created and administered
by the New Jersey judiciary to link qualified drug dependent defendants to
court-supervised and state-funded treatment and aftercare services. The
program offers "a new and innovative way [to address] the problem of drug
dependent offenders caught in a never-ending cycle of involvement in the
criminal justice system[.]" Meyer, 192 N.J. at 434–35. The Court in Meyer
explained, "Drug Courts are a creature of the judiciary. As a subpart of the
criminal part of the Law Division, Drug Courts are subject to the constitutional
purview of [the Supreme Court of New Jersey], which executes its policies
through the Administrative Office of the Courts." Id. at 430.
N.J.S.A. 2C:35-14 is a sentencing statute that authorizes an alternative to
imprisonment known as "special probation." Although N.J.S.A. 2C:35-14 is
commonly referred to as the "Drug Court statute," see, e.g., Maurer, 438 N.J.
Super. at 412, the term Drug Court does not appear in the statutory text.
Figaro, 462 N.J. Super. at 566 ("N.J.S.A. 2C:35-14 does not establish and
A-2256-19
21
indeed does not even mention Drug Courts." (quoting Meyer, 192 N.J. at
428)). N.J.S.A. 2C:35-14 is a tool used by Drug Court judges to admit
defendants who otherwise would be required by law to be sentenced to state
prison.5 Without the sentencing option authorized by N.J.S.A. 2C:35-14, Drug
Court would not be available to defendants who are facing the presumption of
imprisonment codified in N.J.S.A. 2C:44-1(d) or a mandatory term of parole
ineligibility.
To provide context with which to understand the alternate sentencing
option created in N.J.S.A. 2C:35-14, the Supreme Court in Meyer succinctly
summarized the general sentencing features of the New Jersey Code of
Criminal Justice (Penal Code), N.J.S.A. 2C:1-1 to 104-9, explaining:
The [Penal Code] gives a court various options in
sentencing an offender, which include the imposition
of a term of imprisonment or probation. See N.J.S.A.
2C:43-2. If an offender has been convicted of a first-
or second-degree crime, he is subject to a presumption
5
N.J.S.A. 2C:35-14 is a complex, highly detailed, multi-part statute that
addresses all aspects of special probation including initial eligibility and
admission criteria; the type and intensity of treatment services that are
provided to special probationers; the duration of court supervision; violation,
revocation, and reinstatement standards and procedures; rewards for exemplary
progress in the course of treatment; expungement of records; and criteria for
successful discharge from special probation. This appeal focuses on the
criteria for imposing special probation as a sentencing option in lieu of
imprisonment set forth in N.J.S.A. 2C:35-14(a).
A-2256-19
22
of incarceration, [6] which may only be overcome if the
court "is of the opinion that . . . imprisonment would
be a serious injustice which overrides the need to deter
such conduct by others." N.J.S.A. 2C:44-1d.
Conversely, if a first-time offender is convicted of a
crime other than one of the first or second degree, he
is subject to a presumption of non-incarceration.
N.J.S.A. 2C:44-1e. If, as in this case, a defendant is
convicted of third- and fourth-degree crimes, but has a
prior record, he is not subject to either presumption.
See State v. Pineda, 119 N.J. 621, 622–23 (1990).
When that occurs, the sentencing court "must weigh
the aggravating and mitigating factors" enumerated in
N.J.S.A. 2C:44-1a and b "to determine whether a
probationary or custodial sentence is appropriate."
State v. Baylass, 114 N.J. 169, 173 (1989).
[192 N.J. at 433 n.5 (third alteration in original)
(emphasis added).]
As we noted in Figaro, on multiple occasions the Supreme Court has
explained that there are two separate and distinct "tracks" for admission to
Drug Court. 462 N.J. Super. at 566 (referring to Meyer, 192 N.J. at 431–33;
6
We note that N.J.S.A. 2C:44-1(d) establishes a presumption of
"imprisonment." Cf. State v. O'Connor, 105 N.J. 399, 409–11 (1987) (holding
the presumption of imprisonment is not satisfied by imposing a term of
incarceration in county jail as a condition of probation). N.J.S.A. 2C:35 -14(a)
refers to a presumption of "incarceration." The terms "presumption of
incarceration" and "presumption of imprisonment" are used interchangeably in
our case law. See, e.g., State v. Hyland, 238 N.J. 135, 141 n.2 (noting that
"N.J.S.A. 2C:35-14 removes the presumption of incarceration otherwise
applicable to a defendant under N.J.S.A. 2C:44-1(d)"). Hyland and the above-
quoted synopsis in Meyers—both Drug Court cases—confirm that the
"presumption of incarceration" referred to in N.J.S.A. 2C:35-14(a) is the
presumption codified in N.J.S.A. 2C:44-1(d).
A-2256-19
23
State v. Clarke, 203 N.J. 166, 174–77 (2010); State v. Hyland, 238 N.J. 135,
144 n.3 (2019)). Although both tracks lead ultimately to the same
destination—participation in Drug Court—they employ distinct eligibility
criteria.
Track One is reserved for defendants who are facing the presumption of
imprisonment set forth in N.J.S.A. 2C:44-1(d) or a mandatory term of parole
ineligibility. Those defendants must rely on N.J.S.A. 2C:35-14 to steer clear
of the statutory presumption of imprisonment or a mandatory minimum
sentencing statute. Accordingly, a Track One candidate must meet all the
prerequisites for special probation set forth in N.J.S.A. 2C:35-14. See Maurer,
438 N.J. Super. at 413 (noting that "[u]nder the first track, to meet the
requirements for special probation, the applicant must have committed a crime
that is subject to a presumption of incarceration or a mandatory prison term,
and the judge must find that the applicant satisfies nine separate factors"
(quoting Clarke, 203 N.J. 174–76)). See also Administrative Office of the
Courts, "Manual for Operation of Adult Drug Courts in New Jersey" (July
2002) (the 2002 Manual)).7
7
As we discuss later in this opinion, the Administrative Office of the Courts
(AOC) promulgated the original Drug Court Manual in 2002. The 2002
Manual was later revised in 2019 as the "New Jersey Statewide Drug Court
A-2256-19
24
The nine prerequisites to special probation under N.J.S.A. 2C:35-14 are:
(1) the person has undergone a professional diagnostic
assessment to determine whether and to what extent
the person is drug or alcohol dependent and would
benefit from treatment; and
(2) the person is a drug or alcohol dependent person
within the meaning of N.J.S. 2C:35-2 and was drug or
alcohol dependent at the time of the commission of the
present offense; and
(3) the present offense was committed while the
person was under the influence of a [CDS], controlled
substance analog or alcohol or was committed to
acquire property or monies in order to support the
person's drug or alcohol dependency; and
(4) substance use disorders treatment and monitoring
will serve to benefit the person by addressing the
person's drug or alcohol dependency and will thereby
reduce the likelihood that the person will thereafter
commit another offense; and
(5) the person did not possess a firearm at the time of
the present offense and did not possess a firearm at the
time of any pending criminal charge; and
(6) the person has not been previously convicted on
two or more separate occasions of crimes of the first
or second degree, other than those listed in paragraph
(7); or the person has not been previously convicted
on two or more separate occasions, where one of the
offenses is a crime of the third degree, other than
crimes defined in N.J.S. 2C:35-10, and one of the
(continued)
Manual," and was again revised in 2020. We refer to these specifically as the
2019 or 2020 Manual, or generally as the Drug Court Manual.
A-2256-19
25
offenses is a crime of the first or second degree; and
(7) the person has not been previously convicted or
adjudicated delinquent for, and does not have a
pending charge of murder, aggravated manslaughter,
manslaughter, kidnapping, aggravated assault,
aggravated sexual assault or sexual assault, or a
similar crime under the laws of any other state or the
United States;[8]
(8) a suitable treatment facility licensed and approved
by the Division of Mental Health and
(9) no danger to the community will result from the
person being placed on special probation pursuant to
this section.
[N.J.S.A. 2C:35-14(a)(1)– (9).]
Track Two is reserved for drug dependent defendants who are not
subject to the statutory presumption of imprisonment or a mandatory term of
parole ineligibility. Those defendants may be admitted to Drug Court under
the general sentencing provisions of the Penal Code, and specifically, pursuant
to the statutory authority of the court to impose a probationary sentence under
8
We note that although N.J.S.A. 2C:35-14(a)(7) categorically disqualifies
defendants who were previously convicted of certain specified crimes, it does
not disqualify defendants who are charged with a violation of probation
stemming from an underlying disqualifying offense. See Figaro, 462 N.J.
Super. at 576–77 ("The [2019] Manual does not prohibit screening VOPs for
possible admission where the underlying charge was aggravated assault, even
though a prior conviction for aggravated assault is a statutory bar to admission
under N.J.S.A. 2C:35-14(a)(7).").
A-2256-19
26
N.J.S.A. 2C:45-1. N.J.S.A. 2C:45-1 is sometimes referred to as "regular" 9
probation as distinct from "special probation" authorized by N.J.S.A. 2C:35 -
14. Eligibility for entry into Drug Court via Track Two thus does not hinge on
satisfying the nine specified prerequisites for special probation enumerated in
N.J.S.A. 2C:35-14. Rather, eligibility via Track Two is governed by the Drug
Court Manual. Figaro, 462 N.J. Super. at 573.
In Figaro, we rejected the State's argument that a single set of eligibility
criteria—those set forth in N.J.S.A. 2C:35-14—applies to applications under
both Track One and Track Two. Id. at 577. The practical effect of the State's
interpretation in that case would have been to exclude candidates who did not
meet all of the prerequisites for special probation even though they were not
subject to the statutory presumption of imprisonment and thus did not need to
resort to N.J.S.A. 2C:35-14 to remove that presumption.
9
We emphasize that Track Two defendants who are sentenced to Drug Court
pursuant to N.J.S.A. 2C:45-1 receive the same treatment, support, and
aftercare services that are provided to defendants admitted via Track One
pursuant to N.J.S.A. 2C:35-14. Those services are based on each individual's
clinical needs, not the track via which the defendant was admitted. We add
that once accepted into the program, a Track Two candidate's participation in
Drug Court is wholly different from "regular" probation under N.J.S.A. 2C:45 -
1 in terms of the level of services and intensity of court supervision. See
Meyer, 192 N.J. at 429 ("Participants in drug court programs are subject to
intensive supervision, frequent drug testing, and regular court appearances,
combined with treatment and recovery services.").
A-2256-19
27
After conducting a thorough analysis of the Drug Court Manual and the
statutory framework, we concluded that a trial court may, in the exercise of its
discretion, consider the nine enumerated criteria in N.J.S.A. 2C:35-14 as
relevant factors that bear on the Track Two defendant's suitability for
participation in the program. Id. at 574–79. However, a Track Two candidate
is not categorically precluded from admission to Drug Court on the grounds
that he or she has not satisfied all nine factors. Id. at 574–79.10 Thus, for
example, a Track Two candidate with multiple prior convictions that would
disqualify him or her from special probation under N.J.S.A. 2C:35-14(a)(6)
could be admitted to Drug Court in the discretion of the trial court. So too a
Track Two candidate who was previously convicted of an offense specified in
N.J.S.A. 2C:35-14(a)(7) could be admitted to Drug Court in the court's
10
The Drug Court Manual has since been amended to adopt the conclusion we
reached in Figaro. As explained in the AOC memorandum promulgating the
2020 Manual, the latest revisions "reflect that admissions for Track Two
[candidates] are not to be held to the same standards for admission as those
applying under Track One." AOC Memorandum, "Revised Drug Court
Manual – Revisions Regarding Admission Criteria" (Dec. 23, 2020) (AOC
Memo).
The 2019 Manual provided that "[a] drug court prosecutor can
recommend a legal rejection based on N.J.S.A. 2C:35-14 and whether the
applicant is a potential danger to the community." (2019 Manual at 9). The
2020 Manual, revised in response to our decision in Figaro, now reads: "[a]
drug court prosecutor can recommend a legal rejection based on Track One
cases pursuant to N.J.S.A. 2C:35-14 or, if it is a Track Two case, on whether
the applicant is a potential danger to the community." (2020 Manual at 9).
A-2256-19
28
discretion notwithstanding that prior conviction would categorically disqualify
him or her from being sentenced to special probation under N.J.S.A. 2C:35-14.
III.
To provide historical context for the novel statutory interpretation issues
presented in this appeal, we briefly recount the parallel evolution of the
statutory framework and the Drug Court program. We begin by noting that the
statutory foundation for Drug Court was enacted long before the program itself
was conceived. That groundwork was laid in the Comprehensive Drug Reform
Act of 1987, L. 1987, c. 106 (codified as N.J.S.A. 2C:35-1 to 36A-1) (CDRA).
The CDRA was a legislative response to the proliferation of crack cocaine,
which first appeared in the New York metropolitan area and rapidly swept
across the nation. The emergence of crack and the violence and suffering it
spawned prompted Congress and state legislatures to enact new laws that
relied chiefly on prisons to address the swiftly evolving substance abuse
problem. By design, the CDRA profoundly toughened New Jersey's criminal
drug laws.
As its title suggests, the CDRA was intended to be comprehensive in
prescribing the type and quantum of punishment for all levels of drug
offenders, ranging from casual users who faced the prospect of mandatory cash
penalties and loss of driving privileges, see N.J.S.A. 2C:35-15 and N.J.S.A.
A-2256-19
29
2C:35-16 (repealed by L. 2019, c. 276, § 20), to drug trafficking kingpins who
faced mandatory life imprisonment with a twenty-five year term of parole
ineligibility, N.J.S.A. 2C:35-3. The declaration of policy and legislative
findings to the CDRA explained that,
[i]n order to be effective, the battle against drug abuse
and drug-related crime must be waged aggressively at
every level along the drug distribution chain . . . . [I]t
is the policy of this State to distinguish between drug
offenders based on the seriousness of the offense,
considering principally the nature, quantity and purity
of the controlled substance involved, and the role of
the actor in the overall drug distribution network.
[N.J.S.A. 2C:35-1.1(c)].
The CDRA replaced the drug offenses that previously had been codified
in Title 24 and moved them to Title 2C. The declaration of policy and
legislative findings explained, "[t]he transfer of the provisions of the 'New
Jersey Controlled Dangerous Substances Act,' [L. 1970, c. 226 (N.J.S.A.
24:21-1 to -56)] into the penal code which is accomplished herein, along with
the amendments and supplements thereto, will better ensure that the most
culpable drug offenders will be subject to swift prosecutions and strict,
consistently imposed criminal sanctions[.]" N.J.S.A. 2C:35-1.1(d).
The Title 24 offenses predated the Penal Code and did not grade
offenses using the degree classification system set forth in chapters 43 and 44
of Title 2C. The Title 24 offenses, moreover, had been enacted at a time when
A-2256-19
30
judges were afforded virtually unrestricted sentencing discretion. The CDRA's
declaration of policy and legislative findings explained,
[u]nder the current drug laws [in Title 24], there are
inadequate sentencing guidelines with which
consistently to identify the most serious offenders and
offenses and to guard against sentencing disparity and
the resulting depreciation of the deterrent thrust of the
criminal law. In order to protect the public interest,
and so as to deter, disrupt and eliminate the operation
of organized drug trafficking networks, it is necessary
to undertake a comprehensive reexamination of our
controlled dangerous substances laws, procedures and
sentencing practices.
[N.J.S.A. 2C:35-1.1(d).]
The Penal Code, in sharp contrast to Title 24, focuses on general
deterrence and carefully channels the exercise of judicial sentencing
discretion, using presumptions to guide the so-called "in-out" decision. See
N.J.S.A. 2C:44-1(d) and (e). Those presumptions account for the degree of the
crime for which a defendant is convicted. The CDRA assigned a degree
classification to each new drug offense, thereby automatically incorporating
the Penal Code's presumptions of imprisonment and non-incarceration. See
State v. Molina, 114 N.J. 181, 185–86 (1989) (noting that Penal Code
sentencing provisions that relate to the degree of crime do not apply to Title 24
drug offenses).
A-2256-19
31
In addition, the CDRA includes a number of mandatory 11 sentencing
provisions that prescribe minimum terms of parole ineligibility for certain drug
offenders, including those convicted of distribution/possession with intent to
distribute CDS while within 1,000 feet of a school, N.J.S.A. 2C:35-7;12
distribution/possession with intent to distribute a first-degree amount of
specified types of CDS, N.J.S.A. 2C:35-5(b)(1); leader of a narcotics
trafficking network, N.J.S.A. 2C:35-3; maintaining or operating a CDS
production facility, N.J.S.A. 2C:35-4; employing a juvenile in a drug
distribution scheme, N.J.S.A. 2C:35-6; and drug distribution/possession with
intent to distribute if the defendant has previously been convicted of such an
offense, N.J.S.A. 2C:43-6(f).13
11
The "mandatory" minimum sentences prescribed by the CDRA can be
waived or reduced, but only under two circumstances: a negotiated plea
agreement with the prosecutor pursuant to N.J.S.A. 2C:35-12, or special
probation pursuant to N.J.S.A. 2C:35-14.
12
The school zone offense was amended in 2009 to restore judicial sentencing
discretion, allowing the court to reduce or waive entirely the stipulated three-
year parole ineligibility term without the prosecutor's consent unless the
offense is committed while actually on school property or the defendant in the
course of committing the offense used or threatened violence or was in
possession of a firearm. See N.J.S.A. 2C:35-7(b).
13
N.J.S.A. 2C:43-6(f) prescribes a mandatory extended term of imprisonment
that includes a minimum term of parole ineligibility. This mandatory
sentence, however, is invoked only "upon application of the prosecuting
attorney[.]" See State v. Lagares, 127 N.J. 20, 23 (1992) ("Whether an
A-2256-19
32
As intended, the CDRA resulted in a significant increase in the number
and proportion of drug offenders sentenced to state prison. To be
comprehensive, however, the CDRA needed to address crimes committed by
drug dependent offenders who do not make rational risk/benefit decisions and
for whom the general deterrence sentencing strategy might therefore prove
ineffective. See N.J.S.A. 2C:35-1.1(c) ("It is the intention of the Legislature
to provide for the strict punishment, deterrence and incapacitation of the most
culpable and dangerous drug offenders, and to facilitate where feasible the
rehabilitation of drug dependent persons so as ultimately to reduce the demand
for illegal [CDS] and the incidence of drug-related crime."). Accordingly, the
CDRA included an innovative feature that authorized sentencing courts to
impose treatment in lieu of an otherwise statutorily prescribed term of
imprisonment. As we explained in Figaro, "N.J.S.A. 2C:35-14 was enacted in
1987 as part of the [CDRA] . . . 'to craft a new disposition alternative that
(continued)
extended term is imposed depends on the prosecutor because Section 6(f) takes
effect on his or her application."). To ensure statewide uniformity as required
by Lagares, the Attorney General has provided guidance to prosecutors on
whether to apply for or waive an extended term pursuant to N.J.S.A. 2C:43-
6(f). See Directive Implementing Guidelines for Determining Whether to
Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6(f) (Apr. 20, 1992)
(Lagares Guidelines); see also Revised Attorney General Guidelines for
Negotiating Cases under N.J.S.A. 2C:35-12 (July 15, 2004), § 3.6 at 15-16
(Brimage Guidelines).
A-2256-19
33
allowed a court to divert prison-bound defendants into an intensively
monitored and long-term program of rehabilitation.'" 462 N.J. Super. at 571
(quoting Hyland, 238 N.J. at 144) (second and third alterations in original).
N.J.S.A. 2C:35-14 equipped sentencing courts with a statutory tool with
which to break the cycle of drug dependence and criminality by authorizing a
sentencing option that relies on treatment rather than on imprisonment. The
farsighted goal expressed in N.J.S.A. 2C:35-14 remained unfulfilled, however,
because there was at the outset no practical way for judges to link drug
dependent offenders—especially indigent defendants—with clinically
appropriate treatment and monitoring services. That leads us to the creation of
the Drug Court program.
A few Drug Courts became operational on an experimental basis in the
mid-1990s to deal with drug dependent offenders who were overburdening the
criminal justice system. Meyer, 192 N.J. at 430. In 1997, the AOC, in
association with the executive branch, initiated a statewide Drug Court
program with the assistance of state and federal funds, including monies that
had been appropriated to address a prison overcrowding state of emergency
caused in part by the CDRA. See ibid. These specialized courts were created
by the Supreme Court through an AOC directive. Maurer, 438 N.J. Super. at
415.
A-2256-19
34
The Drug Court program was designed to "address the seemingly
intractable social problem presented by the scourge of drugs that has
devastated countless families and is the source of so many collateral crimes."
Meyer, 192 N.J. at 429. The program provides non-violent drug dependent
defendants "an opportunity to recover from the throes of their addiction and
the cycle of their involvement with the criminal justice system." Id. at 428.
Drug Courts, moreover, benefit society, not just program participants, by
impeding the cycle of recidivism, thereby promoting public safety, and by
"yielding cost-savings to our overburdened criminal justice system." Id. at
423.
As the program took hold and expanded, the AOC recognized the need
to standardize Drug Court practices and procedures. "The AOC issued the first
Drug Court Manual in 2002 'to implement "uniform statewide eligibility
criteria" to ensure equitable operation of the Drug Court program throughout
the State.'" Figaro, 462 N.J. Super. at 567 (quoting Meyer, 192 N.J. at 431).
The AOC issued an updated Manual in 2019. As we have noted, the 2019
Manual was revised in 2020 to account for our decision in Figaro.
Our courts have repeatedly recognized the positive role Drug Courts
play in our society. Maurer, 438 N.J. Super. at 408; Clarke, 203 N.J. at 174.
So too has the executive branch repeatedly acknowledged the success and
A-2256-19
35
value of the Drug Court program. Maurer, 438 N.J. Super. at 410. As noted in
Maurer, an Executive Order by the Governor issued in 2011 recognized that,
"New Jersey's Drug Court . . . helps to achieve the overriding goal of the New
Jersey Code of Criminal Justice to protect public safety by reducing the
incidence of crime . . . ." Id. at 410–11 (quoting Preamble to Executive Order
No. 83, "Creation of the Governor's Task Force on Recidivism Reduction,"
(Nov. 28, 2011), 44 N.J.R. 3(a) (Jan. 3, 2012)). The program had earlier been
lauded in the Attorney General's Brimage Guidelines, which described
N.J.S.A. 2C:35-14 as "the legal cornerstone for New Jersey's Drug Court
Program, which is among the most important and promising initiatives
designed ultimately to protect public safety by helping to break the vicious
cycle of crime and addiction." Brimage Guidelines, § 3.13 at 21–22.
The proven success of the Drug Court program and the broad recognition
by all three branches that it promotes public safety has given the Legislature
incentive and confidence to amend N.J.S.A. 2C:35-14 to expand the
circumstances when sentencing courts may eschew imprisonment in favor of
rehabilitative treatment. As we noted in Figaro, the Legislature "has moved
inexorably toward expanding [N.J.S.A. 2C:35-14] as a sentencing alternative."
Figaro, 462 N.J. Super. at 571. In 1999, for example, the Legislature expanded
N.J.S.A. 2C:35-14 to include defendants who were convicted of non-violent
A-2256-19
36
crimes not defined in the CDRA. L. 1999, c. 376 § 2. Until then, N.J.S.A.
2C:35-14 only applied to defendants convicted of drug distribution/possession
with intent to distribute crimes. See Meyer, 192 N.J. at 434. In 2012, N.J.S.A.
2C:35-14 was amended to include defendants convicted of second-degree
robbery and second-degree burglary—defendants who had previously been
categorically excluded from special probation. L. 2012, c. 23, § 5.
IV.
We next examine closely how N.J.S.A. 2C:35-14 operates to permit
treatment in lieu of imprisonment. N.J.S.A. 2C:35-14(a) provides in pertinent
part:
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[.]
N.J.S.A. 2C:35-14 thus provides a means by which a sentencing court
may avoid imposing a term of parole ineligibility that otherwise would be
A-2256-19
37
mandated by the CDRA. Importantly for purposes of this appeal, it also
provides a mechanism by which a sentencing court may avoid having to apply
the presumption of imprisonment set forth in N.J.S.A. 2C:44-1(d). See
Hyland, 238 N.J. at 141 n.2 ("The State now agrees that N.J.S.A. 2C:35-14
removes the presumption of incarceration otherwise applicable to a defendant
under N.J.S.A. 2C:44-1(d).").
Absent this explicit exemption from the presumption of imprisonment, a
sentencing court would effectively be precluded from imposing any form of
probation, regular or special, and would instead be required to sentence a
defendant in need of treatment to state prison. The presumption of
imprisonment in N.J.S.A. 2C:44-1(d), it bears noting, is exceptionally strict;
aside from the exemption established in N.J.S.A. 2C:35-14, the presumption
can only be overcome if the sentencing court finds that "imprisonment would
be a serious injustice which overrides the need to deter such conduct by
others." As the Supreme Court made clear in State v. Jarbath, the "serious
injustice" exception is "extremely narrow: it should be applied only under
circumstances that are 'truly extraordinary and unanticipated.'" 114 N.J. 394,
406 (1989) (quoting State v. Roth, 95 N.J. 334, 358 (1984)). "It is . . . the rare
case," the Court added, "where imprisonment for serious crimes will not
further the goals of general deterrence." Id. at 408.
A-2256-19
38
The Court also explained that the "serious injustice" exception is
designed to avoid disproportionate punishment, not to advance the goal of
rehabilitation. Id. at 407. "[Drug and alcohol addiction] is unfortunate," the
Court lamented, "but not exceptional. . . . Many crimes arise out of drug and
alcohol use. [Defendant's] situation, while regrettable, is not rare." Ibid.(quoting Roth, 95 N.J. at 368). See also State v. Bishop, 429 N.J. Super. 533,
539 (App. Div. 2013) (noting the presumption of imprisonment "is rarely
overcome" and that for offenders subject to the presumption "a regular
probationary sentence is almost never appropriate under the [Penal] Code's
general sentencing provisions").
We explained in Figaro when the presumption of imprisonment applies
in the context of admission to Drug Court. 462 N.J. Super. at 572 ("Special
probation is only available to offenders who are '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.'" (quoting N.J.S.A. 2C:35 -
14(a) (alteration in original))). The cases now before us suggest the need for
further explanation.
The presumption of imprisonment that is incorporated by reference in
N.J.S.A. 2C:35-14(a) is defined in N.J.S.A. 2C:44-1(d). N.J.S.A. 2C:44-1(d)
is a critical sentencing feature. See John M. Cannel, Title 2C New Jersey
A-2256-19
39
Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:44-1(d); see also State v.
Natale, 184 N.J. 458, 483 n.10 (2005) ("When sentencing, a court first must
make the 'in-out' decision—whether a term of imprisonment is appropriate in
light of the relevant presumptions for and against incarceration." (citing
N.J.S.A. 2C:44-1(d) and (e))). Its application is by no means limited to
offenders being considered for admission to Drug Court.
N.J.S.A. 2C:44-1(d) reads in its entirety:
The court shall deal with a person who has been
convicted of a crime of the first or second degree, or a
crime of the third degree where the court finds that the
aggravating factor in paragraph (5) [("there is a
substantial likelihood that the defendant is involved in
organized criminal activity")], (14) [("the offense
involved an act of domestic violence . . . committed in
the presence of a child under 16 years of age")] or (15)
[("the offense involved an act of domestic violence . .
. and the defendant committed at least one act of
domestic violence on more than one occasion")] of
subsection a. of this section applies, by imposing a
sentence of imprisonment unless, having regard to the
character and condition of the defendant, it is of the
opinion that the defendant's imprisonment would be a
serious injustice which overrides the need to deter
such conduct by others. Notwithstanding the
provisions of subsection e. of this section [establishing
a presumption of non-incarceration], the court shall
deal with a person who has been convicted of theft of
a motor vehicle or of the unlawful taking of a motor
vehicle who has previously been convicted of either
offense by imposing a sentence of imprisonment
unless, having regard to the character and condition of
the defendant, it is of the opinion that imprisonment
A-2256-19
40
would be a serious injustice which overrides the need
to deter such conduct by others. [14]
The plain language of N.J.S.A. 2C:44-1(d) makes clear that—aside from
the explicit caveat for repeat automobile theft offenders—the presumption is
triggered by the gradation and circumstances of the present offense for which
the defendant is to be sentenced. See State v. O'Connor, 105 N.J. 399, 404–05
(1987) ("The plain language of [both the presumptions of imprisonment and of
non-incarceration] indicates that the applicable presumption is to be
determined not by the sentence imposed but by the offense for which a
defendant is convicted."). A defendant is not subject to the presumption of
imprisonment because he or she was previously convicted of a first or second-
degree crime.
The plain text shows conclusively that the Legislature knew how to use
prior convictions as a trigger for the presumption but did so only with respect
to repeat automobile theft offenders. 15 Cf. DiProspero v. Penn, 183 N.J. 477,
14
The presumption of imprisonment also applies when a defendant has been
convicted of N.J.S.A. 39:6A-8(a) (fraudulent certification of the seriousness of
plaintiff's injuries in an automobile case).
15
The presumption of non-incarceration set forth in N.J.S.A. 2C:44-1(e), it
should be noted, expressly accounts for the defendant's prior criminal history.
A defendant who has previously been convicted of an offense of any gradation
is ineligible for that statutory presumption. The plain language of N.J.S.A.
2C:44-1(e) shows once again the Legislature knew how to account for and
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41
495 (2005) ("'The canon of statutory construction, expressio unius est exclusio
alterius—expression of one thing suggests the exclusion of another left
unmentioned—sheds some light on the interpretative analysis.'" (quoting
Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 (2004))). So too the plain
language of the text shows the Legislature knew how to include defendants
who are presently convicted of a third-degree crime but did so only when the
sentencing court finds aggravating factor five, N.J.S.A. 2C:44-1(a)(5),
fourteen, N.J.S.A. 2C:44-1(a)(14), or fifteen, N.J.S.A. 2C:44-1(a)(15).
We recognize that as a practical matter, a defendant's prior convictions
or past incarceration in state prison may make it unlikely that a court in the
exercise of its discretion would sentence him to probation after applying the
pertinent aggravating and mitigating factors, including especially aggravating
factor six, N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's prior
criminal record and the seriousness of the offenses of which he has been
convicted."). We emphasize, however, that it would put the cart before the
horse to suggest that the practical likelihood of a prison sentence triggers the
presumption of imprisonment defined in N.J.S.A. 2C:44-1(d) and incorporated
(continued)
refer to prior convictions when guiding the "in-out" sentencing decision but
did not do so in the presumption of imprisonment except with respect to repeat
automobile theft offenders.
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42
by reference in N.J.S.A. 2C:35-14(a). The presumption of imprisonment, after
all, is intended to guide the so-called "in-out" sentencing decision. Natale, 184
N.J. at 483 n.10. A court's independently made decision to impose a prison
sentence based on the weighing of aggravating and mitigating factors does not
somehow trigger the presumption after the in-out decision has already been
made. See Meyer, 192 N.J. at 433 n.5 (requiring a court to weigh the
aggravating and mitigating factors when neither the presumption of
imprisonment nor presumption of non-incarceration applies).
V.
The remaining statutory interpretation issue before us is whether the
phrase "ineligible for probation due to a conviction for a crime which is
subject to a presumption of incarceration" in N.J.S.A. 2C:35-14(a) is meant to
use a different operational definition of the presumption of imprisonment than
the one set forth in N.J.S.A. 2C:44-1(d). As we have noted, there is no doubt
that the presumption of incarceration referenced in N.J.S.A. 2C:35-14(a) is the
same presumption codified in N.J.S.A. 2C:44-1(d). See supra note 6. The
novel question raised in this appeal is whether, as the State asserts, the
Legislature intended to use different criteria to invoke the presumption of
imprisonment when deciding whether a defendant is eligible for special
probation.
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43
Specifically, the State contends that a defendant presently convicted of a
third-degree crime who has previously been convicted of a crime that was
subject to the presumption of imprisonment, or has previously been convicted
of a crime that actually resulted in a state prison sentence, must be classified as
a Track One candidate. The State in essence borrows language from N.J.S.A.
2C:35-14.1(a)(2)(b) and grafts it onto the operational definition of a person
who is ineligible for probation for purposes of N.J.S.A. 2C:35-14(a). After
carefully examining the entire statutory framework that supports Drug Court,
we reject the State's argument. We believe the State conflates the test for
determining whether a defendant must be evaluated for drug dependence u nder
N.J.S.A. 2C:35-14.1 with the separate and distinct test for determining whether
a defendant is ineligible for probation within the meaning of N.J.S.A. 2C:35 -
14.
A.
The State's interpretation requires us to closely examine the
groundbreaking legislative revisions to the CDRA enacted as part of L. 2012,
c. 23 (2012 Amendments). The 2012 Amendments added two new sections to
chapter 35 of the Penal Code: N.J.S.A. 2C:35-14.1 and N.J.S.A. 2C:35-14.2.
L. 2012, c. 23, § 1, 2. These sections explain when a judge must intervene,
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44
literally, when dealing with a defendant who appears to be in need of drug
treatment but who has not voluntarily applied to Drug Court.
The 2012 Amendments included other provisions that expanded the
reach of Drug Court by enlarging the spectrum of crimes eligible for special
probation 16 and by eliminating a prosecutor's authority to veto a Track One
defendant's admission. 17 The 2012 Amendments went much further, however,
in broadening the reach of the Drug Court program. For the first time, the
Legislature squarely addressed a different kind of impediment that was
preventing the full use of Drug Courts to break the cycle of crime and
addiction: denial. Denial is an all-too-common symptom of the disease of
addiction. By its inherent nature, denial imposes limits on the scope of any
treatment intervention system that depends on addicts reaching out for help on
their own volition.
16
As we have already noted, the 2012 Amendments authorized special
probation for defendants presently convicted of second-degree robbery and
second-degree burglary—crimes that previously had rendered defendants
categorically ineligible for special probation. L. 2012, c. 23, § 5.
17
As we explained in Maurer, "prior to the [2012] amendments, N.J.S.A.
2C:35-14(c) granted the prosecutor the right to object to an otherwise qualified
defendant's entry into Drug Court and, absent a showing of 'gross and patent
abuse of [the prosecutor's] discretion,' a court could not override that objection
and admit the defendant to Drug Court. Subsection (c) was deleted in the 2012
amendments." 438 N.J. Super. at 414.
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45
In Bishop, we explained that "[p]rison-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." 429 N.J. Super. at 548 (emphasis added). Regrettably,
some prison-bound offenders are not willing on their own initiative to avail
themselves of that life-changing opportunity.
As we also noted in Bishop, as far back as 1996, the Attorney General
"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."
Ibid. (quoting Report to the Governor by the Attorney General on the Need to
Update the Comprehensive Drug Reform Act of 1987) (alteration in original).
The Attorney General's "leverage" recommendation was consistent with
the then-recent report of The President's Commission on Model State Drug
Laws. That Commission explained that,
[b]ecause of the nature of addiction, few drug abusing
or addicted persons "volunteer" for treatment on their
own initiative. Typically, the decision to undergo
treatment and to engage the rehabilitative process is a
result of pressure or coercion brought to bear by
others . . . . State legislatures must recognize that in
many if not most criminal cases, the necessary
coercion will have to come from courts . . . precisely
because addicts are often in denial and may perceive
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46
little incentive to initiate the difficult rehabilitative
process.
[President's Commission on Model State Drug Laws,
Vol. 4 G-141 (Dec. 1993).]
A study prepared for the President's Commission by the Rutgers
University Center of Alcohol Studies found that "coerced[,] criminally
involved clients do as well, if not better, than voluntary clients. Moreover, the
effect of court involvement, thought by some to compromise a therapeutic
relationship, appears instead to help retain patients in treatment and help them
to achieve a more favorable and stable outcome." President's Commission o n
Model State Drug Laws, Executive Summary at iii (Dec. 1993).
Relying on the Rutgers research study, the President's Commission
concluded that,
Recent empirical studies confirm that drug treatment
works for offenders who are compelled to engage the
treatment process as a condition of pretrial release,
sentence, probation or parole. It simply makes sense
to use the criminal justice system to constructively
induce substance abusing and addicted offenders to
accept help and to enter and to stay in treatment for as
long as necessary to deal effectively with their drug
problem.
[President's Commission on Model State Drug Laws,
Vol. 4 G-141 (Dec. 1993).]
The Commission thus recommended to state legislatures that "[the] addict in
denial should be given few choices." Id. at G-160.
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47
Before the 2012 Amendments were enacted, special probation could be
imposed only when a defendant voluntarily sought treatment by affirmatively
applying to Drug Court. N.J.S.A. 2C:35-14, in other words, depended on an
addict making the rational choice to seek treatment. A defendant could avoid
interventional treatment simply by choosing not to apply to Drug Court. As
the program's cost-effectiveness was proven and more resources were
dedicated to support it, it became apparent that the voluntary application
requirement impeded the program's expansion, thereby preventing it from
reaching its full potential.
The criminal justice system, meanwhile, routinely accepted—dare we
say, enabled—an addict's silent election to avoid treatment. In many cases, it
was expedient for defendants, their counsel, prosecutors, and sentencing courts
to dispose cases through the traditional plea-bargaining process, which
typically provides for shortened terms of incarceration in exchange for a
defendant's waiver of the right to a jury trial. The criminal justice system in
some cases turned a blind eye to the warning signs of a defendant's drug
dependence because of what was essentially an unspoken "don't ask/don't tell"
policy. Inspired by the proven cost-benefits of Drug Court, the Legislature by
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48
enacting the 2012 Amendments established a new policy that requires
sentencing courts to be watchful for telltale indicators of possible addiction. 18
18
N.J.S.A. 2C:35-14.1(b) specifies eight objective indicators that "shall
provide a reasonable basis to believe that a person may be drug dependent[.]"
These circumstances are:
(1) the present offense involves a controlled
dangerous substance;
(2) the defendant has previously been convicted of an
offense involving a controlled dangerous substance,
was admitted to pretrial intervention or supervisory
treatment, or received a conditional discharge for a
charge involving a controlled dangerous substance;
(3) the defendant has any other pending charge in this
State, any other state, or a federal court involving a
controlled dangerous substance;
(4) the defendant has any time previously received any
form of drug treatment or counseling;
(5) the defendant appears to have been under the
influence of a controlled dangerous substance during
the commission of the present offense, or it reasonably
appears that the present offense may have been
committed to acquire property or monies to purchase a
controlled dangerous substance for the defendant's
personal use;
(6) the defendant admits to the unlawful use of a
controlled dangerous substance within the year
preceding the arrest for the present offense;
(7) the defendant has had a positive drug test within
the last 12 months; or
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49
In a 2012 memorandum, the Attorney General explained that the newly-
enacted N.J.S.A. 2C:35-14.1 and 2C:35-14.2 "will eventually[ 19] expand New
Jersey's nationally-acclaimed Drug Court program by authorizing judges to
order addicted non-violent offenders to participate in court-supervised drug
treatment. Until now, defendants had to apply for admission to Drug Court,
and could choose to avoid treatment." New Jersey Attorney General,
"Memorandum to County Prosecutors on Implementation of Drug Court
Reforms," at 1 (Aug. 13, 2012).
(continued)
(8) there is information, other than the circumstances
enumerated in paragraphs (1) through (7) of this
subsection, which indicates that the defendant may be
a drug dependent person or would otherwise benefit
by undergoing a professional diagnostic assessment
within the meaning of paragraph (1) of subsection a.
of N.J.S. 2C:35-14.
19
The Legislature recognized that by authorizing courts to mandate treatment
"regardless of whether the defendant has sought or consents to such a
sentence," the resultant expansion of Drug Court would be substantial and for
practical reasons could not be implemented immediately throughout the State.
N.J.S.A. 2C:35-14.2(b). Accordingly, the 2012 amendments provided for a
phased-in implementation of the new compulsory treatment paradigm. See
N.J.S.A. 2C:35-14.3. The compulsory treatment program was to be "fully
implemented in the State no later than the fifth fiscal year following enactment
provided that sufficient State funds have been appropriated." Ibid.
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50
N.J.S.A. 2C:35-14.1 generally requires a sentencing court in certain
clearly-defined circumstances, see supra note 18, to order a defendant who has
not applied to Drug Court to submit to a professional diagnostic assessment —
also known as a TASC evaluation—to determine whether he or she is in need
of and would benefit from court-ordered treatment. Specifically, N.J.S.A.
2C:35-14.1(a) provides that:
except as provided in subsection c., [20] the court shall
require a defendant to submit to a professional
diagnostic assessment if:
(1) there is a reasonable basis to believe that the
defendant may be a drug dependent person as defined
in N.J.S. 2C:35-2;
(2) the defendant is charged with:
(a) a crime that is subject to a presumption of
imprisonment pursuant to subsection d. of N.J.S.
2C:44-1; or
(b) any crime of the third degree if the
defendant has previously been convicted of a
crime subject to the presumption of
imprisonment or that resulted in imposition of a
State prison term; and
20
Subsection (c) provides that a court does not need to order diagnostic
testing "if it is clearly convinced that such assessment will not serve any useful
purpose." N.J.S.A. 2C:35-14.1(c). If the court declines to order diagnostic
testing under subsection (c), the court must "place on the record the reasons for
its decision." Ibid.
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51
(3) the defendant is eligible to be considered for a
sentence to special probation pursuant to the
provisions of N.J.S. 2C:35-14.
[(emphasis added).]
When the diagnostic assessment ordered pursuant to N.J.S.A. 2C:35-14.1
shows a defendant is in need of treatment, N.J.S.A. 2C:35-14.2 generally
requires the court to sentence the defendant to special probation under N.J.S.A.
2C:35-14 if he or she is legally eligible, unless the court makes specific
findings why special probation would be inappropriate or unnecessary.
B.
The statutory formulation for determining which defendants must be
assessed for drug dependence under N.J.S.A. 2C:35-14.1 casts a wider net than
the presumption of imprisonment in N.J.S.A. 2C:44-1(d) that is incorporated
by reference in N.J.S.A. 2C:35-14(a), which, as we have explained, only
includes defendants who presently are subject to a mandatory term of parole
ineligibility or the presumption of imprisonment in N.J.S.A. 2C:44 -1(d).
Defendants presently subject to the presumption of imprisonment are expressly
included under N.J.S.A. 2C:35-14.1(a)(2)(a). N.J.S.A. 2C:35-14.1(a)(2)(b)
expands that pool by also including defendants convicted of a third -degree
crime who previously have been convicted of a crime subject to the
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52
presumption of imprisonment or that resulted in imposition of a state prison
term.
The gravamen of the State's argument is that the formulation in N.J.S.A.
2C:35-14.1(a)(2)(b) not only serves to identify defendants who must submit to
a professional diagnostic assessment but also determines whether a defendant
is a Track One candidate who can only be admitted to Drug Court by means of
special probation imposed pursuant to N.J.S.A. 2C:35-14. We fail to
understand, however, how the formulation in N.J.S.A. 2C:35-14.1(a)(2)(b)
could change the operational definition of who is "ineligible for probation" for
purposes of N.J.S.A. 2C:35-14(a). For the reasons that follow, we conclude
that N.J.S.A. 2C:35-14.1(a)(2)(b) does not impliedly amend N.J.S.A. 2C:35-
14(a), does not change how a court determines whether a defendant is a Track
One or Track Two candidate, and does not change the eligibility criteria for a
Track Two candidate. We also reject the notion that N.J.S.A. 2C:35-14.1 and
N.J.S.A. 2C:35-14.2 are meant to exclude any defendants from admission to
Drug Court who would otherwise be admitted via Track Two.
"The chief aim when interpreting a law is to determine and give effect to
the Legislature's intent." In re D.J.B., 216 N.J. 433, 440 (2014); DiProspero,
183 N.J. at 492. In order to determine the Legislature's intent, "courts look
first to the plain language of the statute." D.J.B., 216 N.J. at 440. "If the
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53
language is clear, the court's job is complete." Ibid. Indeed, "[i]f the language
is clear and unambiguous, and susceptible to only one interpretation, no further
inquiry should be made." Bishop, 429 N.J. Super. at 546. But "[i]f the
wording of a law is ambiguous, a court may examine extrinsic evidence for
guidance, including legislative history and committee reports." D.J.B., 216
N.J. at 440. "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." Bishop, 429 N.J. Super. at 547. When interpreting the
law, "[s]tatutes must also 'be read in their entirety; each part or section should
be construed in connection with every other part or section to provide a
harmonious whole.'" D.J.B., 216 N.J. at 440 (quoting Burnett v. Cnty. of
Bergen, 198 N.J. 408, 421 (2009) (internal quotation marks omitted); Bedford
v. Riello, 195 N.J. 210, 224 (2008).
Applying these foundational principles of statutory construction, we first
examine the plain language in L. 2012, c. 23. We know for certain that the
Legislature did not intend to alter the presumption of imprisonment. That is
made plain in N.J.S.A. 2C:35-14.2(e), which unambiguously states
[n]othing in this section shall be construed to alter the
presumption of imprisonment contained in subsection
d. of N.J.S. 2C:44-1 or to require or authorize the
reduction or waiver of a mandatory period of parole
ineligibility required by law, or to modify the
exceptions to such requirements provided for by law,
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54
including but not limited to those provided in N.J.S.
2C:35-12 and N.J.S. 2C:35-14.
We can hardly imagine a more clear and definitive declaration of legislative
intent to leave the presumption of imprisonment in N.J.S.A. 2C:44-1(d) intact
and unaltered.
The fact that the 2012 Amendments did not modify the language in
N.J.S.A. 2C:35-14(a) that explains when a defendant is "ineligible for
probation" likewise evinces the Legislature's intent to keep the incorporated -
by-reference presumption of imprisonment intact and unaltered when
determining eligibility for special probation. That portion of the special
probation statute continues to refer only to defendants who are "subject to a
presumption of incarceration or a mandatory minimum term of parole
ineligibility." In other words, the operational definition of the term "ineligible
for probation" was not amended to include defendants convicted of "any crime
of the third degree [who have] previously been convicted of a crime subject to
the presumption of imprisonment or that resulted in imposition of a State
prison term[,]" which is the formulation used in N.J.S.A. 2C:35-14.1(a)(2)(b).
By enacting both N.J.S.A. 2C:35-14.1(a)(2)(a) and N.J.S.A. 2C:35-
14.1(a)(2)(b), the Legislature clearly intended to require diagnostic testing of
defendants who were previously subject to the presumption of imprisonment,
and not just defendants who are presently subject to that presumption. The
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55
Legislature expressly recognized the distinction between these two populations
and thus the need to use separate paragraphs with distinct textual formulations
to make certain that both groups fall within the ambit of the N.J.S.A. 2C:35 -
14.1 diagnostic testing paradigm. And yet the Legislature did not amend
N.J.S.A. 2C:35-14 to expand the scope of special probation beyond the pool of
defendants who are subject to the presumption of imprisonment defined in
N.J.S.A. 2C:44-1(d).
Furthermore, it is evident the Legislature knew how to revise the
eligibility criteria for special probation set forth in N.J.S.A. 2C:35 -14 as
shown conclusively by the fact that the 2012 Amendments did indeed amend
N.J.S.A. 2C:35-14 by eliminating the bar for persons convicted of second-
degree robbery and burglary. See supra note 16. The Legislature could easily
have amended N.J.S.A. 2C:35-14(a) to include a reference to defendants
previously convicted of a crime subject to the presumption of imprisonment or
who previously served a state prison sentence but did not do so. We presume
the decision to leave the first sentence of N.J.S.A. 2C:35-14(a) unaltered was
intentional. See DiProspero, 183 N.J. at 496 (referring to "the presumption
that the Legislature acted deliberately"). We therefore decline the State's
invitation to graft language from N.J.S.A. 2C:35-14.1(a)(2)(b) into the
operational definition of "ineligible for probation" codified in N.J.S.A. 2C:35-
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56
14(a). See id. at 492 (noting that a court interpreting a statute cannot "write in
an additional qualification which the Legislature pointedly omitted in drafting
its own enactment" (quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225,
230 (1952))).
We add in the interest of completeness that N.J.S.A. 2C:35-14.1 serves a
different purpose than N.J.S.A. 2C:35-14. N.J.S.A. 2C:35-14.1 is designed to
identify drug dependent offenders who have not applied for Drug Court and
whose addictions might otherwise escape notice. Before L. 2012, c. 23 was
enacted, some addicts opted for prison over treatment when given the choice.
It thus makes sense that the Legislature would instruct sentencing courts to
closely scrutinize suspected drug dependent offenders who previously served a
prison sentence to determine if they have been suffering from a longstanding,
untreated addiction prompting their recidivism.
TASC evaluations provide sentencing courts with "the full measure of
[the defendant's] substance abuse history[.]" Clarke, 203 N.J. at 183. This
information regarding a defendant's substance abuse history is helpful for a
sentencing court not only because an unrecognized and untreated addiction
bears significantly on the risk of re-offense, see N.J.S.A. 2C:44-1(a)(3)
(defining as an aggravating factor "[t]he risk that the defendant will commit
another offense"), but also because it may help to explain past criminal
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57
behavior and put past crimes in context in terms of the goal of interrupting a
recurring cycle of recidivism.
Furthermore, any interpretation of either or both N.J.S.A. 2C:35-14.1
and 2C:35-14.2 that would have the practical effect of restricting access to
Drug Court contravenes the legislative purpose of the 2012 Amendments. As
noted, statutes should be construed "in connection with every other part or
section to provide a harmonious whole." D.J.B., 216 N.J. at 440 (quoting
Burnett, 198 N.J. at 421. The overarching goal expressed in the 2012
Amendments was to enlarge, not reduce, the pool of defendants who could
participate in Drug Court. In Maurer, we cited the legislative history of L.
2012, c. 23, explaining,
[a]lso, as to the Drug Court Statute itself, a Senate
committee stated the statute was being amended "in
order to permit additional offenders who may benefit
from the program to be diverted into the program
instead of being sentenced to a term of incarceration .
. . . [by giving] a court . . . greater discretion to place
the person on special probation, even if one or more of
the enumerated discretionary factors was not met by a
particular defendant."
[438 N.J. Super. at 414 (alterations in original)
(quoting Senate Budget and Appropriations Comm.
Statement to S. 881 (April 3, 2012)).]
Finally, we note that the State's interpretation could lead to an
anomalous result. If, as the State argues, a defendant presently convicted of a
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58
third-degree crime who has previously been convicted of a second-degree
crime or previously was sentenced to prison can only be admitted to Drug
Court via Track One, then the Drug Court option would be foreclosed if such a
defendant could not meet all nine eligibility criteria in N.J.S.A. 2C:35-14 even
though that defendant is not presently subject to the presumption of
imprisonment and thus could, in theory, be sentenced to regular probation
without Drug Court. Accordingly, under the State's interpretation, a defendant
could be legally ineligible for Drug Court even though he or she is not legally
ineligible for regular probation. As we have already highlighted, N.J.S.A.
2C:35-14.2(e) expressly states, "[n]othing in this section shall be construed to
alter the presumption of imprisonment contained in subsection d. of N.J.S.
2C:44-1 . . . ." As the Supreme Court emphasized in Meyer, "[i]t is
inconceivable that the Legislature granted a trial court power to impose a
probationary sentence, but not the power to attach the one condition necessary
to address the offender's desperate needs—a drug rehabilitation program." 192
N.J. at 436.
VI.
The determination that a defendant is legally eligible for Drug Court via
Track Two does not lead inexorably to his or her admission. See Clarke, 203
N.J. at 176 ("Under the second track, the applicant must convince the judge
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59
that a probationary sentence under the general sentencing provisions of the
Code of Criminal Justice is appropriate."); see also Figaro, 462 N.J. Super. at
579 (noting the trial court must decide "whether a probationary sentence is
appropriate"). Drug Court judges serve as the gatekeepers to the program and
are responsible not only for linking deserving candidates to treatment services
but also for promoting public safety and ensuring the continued effectiveness
of the program by only admitting qualified candidates. Under either track, the
sentencing judge retains discretion to deny admission to a legally eligible
defendant after considering the recommendations of the substance abuse
evaluator and the prosecutor, the Drug Court Manual—which emphasizes the
need to consider danger to the community—and the relevant aggravating and
mitigating factors that must be applied and weighed in all sentencing
proceedings.
The Public Defender contends that N.J.S.A. 2C:35-14.2 establishes a
"new type of legal presumption" that certain drug dependent offenders must be
sentenced to special probation. Specifically, N.J.S.A. 2C:35-14.2(b) provides:
Notwithstanding any law to the contrary, where the
court finds that a defendant is a person in need of
treatment as defined in subsection f. of this section
and that the defendant additionally meets all the
requirements of N.J.S. 2C:35-14, the court shall
sentence a defendant to special probation pursuant to
the provisions of N.J.S. 2C:35-14 for the purpose of
participating in a court-supervised drug treatment
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program, regardless of whether the defendant has
sought or consents to such a sentence, unless:
(1) the court finds that a sentence of imprisonment
must be imposed consistent with the provisions of
chapters 43 and 44 of Title 2C of the New Jersey
Statutes, in which case a sentence of imprisonment
shall be imposed; or
(2) the court is clearly convinced that:
(a) the treatment, monitoring, and supervision
services that will be provided under N.J.S.
2C:45-1 are adequate to address the defendant's
clinical needs;
(b) the defendant's treatment needs would not be
better addressed by sentencing the defendant to
special probation pursuant to N.J.S. 2C:35-14;
(c) no danger to the community would result
from placing the person on regular probation
pursuant to N.J.S. 2C:45-1; and
(d) a sentence of probation authorized under
N.J.S. 2C:45-1 would be consistent with the
provisions of chapters 43 and 44 of Title 2C of
the New Jersey Statutes.
[(emphasis added).]
N.J.S.A. 2C:35-14.2(c) further instructs that "the court shall place on the
record the reasons for its decision."
We recognize that the "shall/unless" formulation used in N.J.S.A. 2C:35-
14.2 is similar in grammatical structure to the presumptions of imprisonment
and non-incarceration in N.J.S.A. 2C:44-1(d) and N.J.S.A. 2C:44-1(e). We do
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not, however, read N.J.S.A. 2C:35-14.2(b) as substantively restricting a
sentencing court's discretion to deny admission to Drug Court other than to
require the court to consider a defendant's treatment needs and then apply the
relevant factors and circumstances set forth elsewhere in the Penal Code. We
believe that N.J.S.A. 2C:35-14.2(b) was not designed to limit the court's
discretion to impose a prison sentence but rather to limit the discretion of an
addicted defendant to choose prison over treatment. This section serves to
empower Drug Court judges, enhancing their authority over a defendant.
The gravamen of N.J.S.A. 2C:35-14.2(b) and (c) is to require the court
to pay close attention to the individual circumstances of the defendant's
addiction and to require the court to explain its reasons if it decides ultimately
not to impose special probation. A statutory requirement to make specific
findings justifying a sentencing decision is hardly novel. Sentencing courts
have always been required to state the reasons for their decisions. See Clarke,
203 N.J. at 177 ("Because the decision whether to admit the applicant into
Drug Court is essentially a sentencing one, the 'trial judge is required to
consider all of the aggravating and mitigating factors and to find those
supported by the evidence.'" (quoting State v. Dalziel, 182 N.J. 494, 505
(2005))); see also Natale, 184 N.J. at 488 (2005) ("As always, every judge
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must 'state on the record' how he or she arrived at a particular sentence."
(quoting N.J.S.A. 2C:43-2(e))).
As we have explained, N.J.S.A. 2C:35-14.1 and N.J.S.A. 2C:35-14.2
work in tandem to make certain that sentencing courts closely scrutinize
defendants in need of treatment but who have not voluntarily applied for Drug
Court. The express requirement in N.J.S.A. 2C:25-14.2(c) that the sentencing
court explain the reasons for its decision not to impose special probation is
consistent with that objective. The articulation requirement, however, does not
substantively amend the criteria set forth in the Penal Code that are used to
determine whether imprisonment would be the appropriate sentence. Indeed,
N.J.S.A. 2C:35-14.2(b)(2)(d) expressly incorporates "the provisions of
chapters 43 and 44" of the Penal Code in explaining when a sentence of
imprisonment rather than special probation shall be imposed.
As a general matter, sentencing decisions are reviewed under a
deferential standard. See Roth, 95 N.J. at 364–65 (holding that an appellate
court may not overturn a sentence unless "the application of the [Penal Code]
guidelines to the facts of [the] case makes the sentence clearly unreasonable so
as to shock the judicial conscience"). We likewise owe deference to the
sentencing decision to grant or deny admission to the Drug Court program.
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Drug Courts, it bears repeating, are aptly characterized as "specialized
courts." See Meyer, 192 N.J. at 428 ("Drug Courts are specialized courts
within the Superior Court."). We believe deference to the findings made by
Drug Court judges is especially appropriate in view of their expertise in
addressing "the unique problems and needs posed by non-violent, drug-
dependent offenders[.]" Id. at 423; Cf. Cesare v. Cesare, 154 N.J. 394, 413
(1974) (recognizing that deference is accorded to factfinding by Family Part
judges because they possess "special jurisdiction and expertise in family
matters").
We add in this regard that one of the important innovations of the Drug
Court program is that judges are charged with close supervision of defendants
throughout their extended participation in the program. The supervisory role
that judges play throughout the course of treatment is a major factor in the
success of the program. See Meyer, 192 N.J. at 429 ("What distinguishes Drug
Courts from other courts is the 'oversight and personal involvement of the drug
court judge in the treatment process.'" (quoting 2002 Manual at 3)).
We note also that the Drug Court Manual lists the distinctive
responsibilities of a Drug Court judge in administering and supervising the
program. In relevant part, these specialized responsibilities include:
Stay[ing] abreast of current law and research on best
practices in [D]rug [C]ourt[;]
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Understand[ing] behavior modification techniques and
best practices as they relate to the imposition of
incentives and sanctions[;]
Understand[ing] and implement[ing] the concept of
"shaping" as it relates to behavior modification, which
is defined as drawing a distinction between proximal
and distal behavioral goals; proximal (participants are
already capable of engaging in) such as telling the
truth, attending counseling sessions[,] or producing a
urine specimen[,] and distal (desired behavior that
could take time to achieve) such as gainful
employment, or improved parenting skills[;]
Acquir[ing] an understanding of 12-step self-help
meetings and other recovery supports and an
understanding of substance-use disorders, treatment,
including medication-assisted treatment, and opioid
overdose antidotes, including Naloxone[;]
Tak[ing] an active role in educating colleagues and
other members of the criminal justice system and
community about the drug court program[;]
Attend[ing] ongoing trainings on legal and
constitutional issues in drug court such as statewide
and national drug court conferences, to remain up-to-
date on current practices in the field[;]
[Being] knowledgeable about gender, age, cultur[e],
trauma, and mental health issues that could impact a
participant's success[; and]
Mak[ing] certain that drug court best practices are
implemented and that the team maintains fidelity to
the New Jersey Drug Court model.
[2020 Manual, at 14–15.]
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In view of these specialized responsibilities and their experience in
overseeing Drug Court participants, Drug Court judges are uniquely qualified
to evaluate a defendant's capacity to deal successfully with the difficult
challenges of rehabilitation. Accordingly, once a candidate's track designation
has been properly made in accordance with law and the defendant has been
determined to be legally eligible for Drug Court, substantial deference should
be accorded to the Drug Court judge's ultimate decision to grant or deny
admission to the program.
VII.
For the sake of clarity and in the interest of simplifying the decision-
making framework, we briefly summarize the sequence of decisions a Drug
Court judge must make in determining whether a defendant is legally eligible
to be admitted to Drug Court and if so, whether he or she should be admitted .
Legal eligibility is a threshold question that must be decided in all cases.
Every candidate falls under one of two distinct and mutually exclusive tracks.
To determine legal eligibility, the trial court must first determine whether the
defendant is a Track One or Track Two candidate.
A defendant is a Track One candidate if, and only if, he or she is
presently subject to the presumption of imprisonment in N.J.S.A. 2C:44-1(d)
or to a mandatory term of parole ineligibility. If the defendant is not pres ently
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subject to the presumption of imprisonment as defined in N.J.S.A. 2C:44-1(d)
or to a mandatory term of parole ineligibility, he or she is a Track Two
candidate.
The critical question is not whether the defendant is likely to be
sentenced to prison based on the weighing of aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b). A defendant, moreover, is not
subject to the presumption of imprisonment by reason of his or her past
criminal history, except in the case of a repeat automobile theft offender. Nor
is a defendant presently subject to the presumption of imprisonment simply
because he or she was previously convicted of a crime subject to the
presumption or because he or she has previously been sentenced to state
prison. Rather, the presumption of imprisonment in N.J.S.A. 2C:44-1(d) is
determined by reference to the present offense(s) for which defendant is
convicted and is to be sentenced.
A Track One candidate can be admitted to Drug Court only if the court
sentences the defendant to special probation pursuant to N.J.S.A. 2C:35-14.
Track One candidates therefore must meet all nine eligibility criteria for
special probation set forth in N.J.S.A. 2C:35-14(a). If a Track One candidate
does not meet any of the nine enumerated prerequisites, he or she is legally
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ineligible for special probation and therefore may not be admitted to Drug
Court.
A Track Two candidate need not satisfy the nine eligibility criteria set
forth in N.J.S.A. 2C:35-14. However, pursuant to the Drug Court Manual and
in accordance with Figaro, the trial court may in the exercise of discretion
consider the eligibility prerequisites enumerated in N.J.S.A. 2C:35-14(a) as
relevant factors that bear on the defendant's suitability for Drug Court.
If the trial court determines that the candidate is legally eligible for Drug
Court via either track, the court must next decide whether to admit the
candidate in the exercise of sentencing discretion. The court must consider the
TASC evaluation, the recommendation of the substance abuse evaluator, and
the non-binding recommendation of the prosecutor. As with all sentencing
decisions, the court must consider the applicable aggravating and mitigating
circumstances delineated in the Penal Code. As noted, in the case of a Track
Two candidate, the court may also consider the factors enumerated in N.J.S.A.
2C:35-14(a).
The foregoing sequence of decisions applies whether the defendant is a
voluntary applicant for Drug Court or a non-voluntary candidate identified
pursuant to N.J.S.A. 2C:35-14.1.
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VIII.
In Clarke, the Supreme Court made clear that "[a] fair deliberative
process requires that the Drug Court judge consider all of the relevant
information available." 203 N.J. at 182. This includes the completed
substance abuse evaluation and the evaluator's recommendation. Ibid. The
Court concluded in that case,
[w]ithout considering the full measure of [the
defendant's] substance abuse history and the written
recommendation of the substance abuse evaluator, the
trial court could not have given full and fair
consideration of [defendant's] appeal.
Although a Drug Court judge is not bound by a
substance abuse evaluator's recommendation for in-
patient drug treatment, the evaluation is a critical
component of a decision to grant or deny admission
into the Drug Court program. The substance abuse
evaluator's recommendation can assist in the judge's
consideration of a defendant's need for treatment and
the probable effect of any addiction on future criminal
behavior. A remand is necessary for the Drug Court
judge to consider the substance abuse evaluator's
report.
[Id. at 183.]
The State candidly acknowledged at oral argument before us that a full
review was not done in some of the cases in this consolidated appeal because
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the trial court did not have the benefit of TASC evaluations. 21 A remand is
therefore needed in any case before us where the trial court did not consider a
TASC evaluation unless the record clearly shows that the defendant is a Track
One candidate who is legally ineligible for special probation and thus
categorically ineligible for admission to Drug Court.
IX.
As we have noted, as a general proposition, we review a sentencing
court's decision to admit or deny admission to Drug Court for an abuse of
discretion. Maurer, 438 N.J. Super. at 418 ("By its action [to remove the
prosecutorial veto], the Legislature clearly evinced an intention to rely on a
judge's discretion and ability to better determine admission without continuing
[that] right to veto."); see also State v. Megargel, 143 N.J. 484, 493 (1996)
(holding that appellate courts review sentences only to determine: "(1) whether
the exercise of discretion by the sentencing court was based upon findings of
fact grounded in competent, reasonably credible evidence; (2) whether the
sentencing court applied the correct legal principles in exercising its
discretion; and (3) whether the application of the facts to the law was such a
21
We note that defendants Falcone, Fogg, and Harris submitted to TASC
evaluations and were each found to be drug dependent.
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clear error of judgement that it shocks the conscience" (citing Roth, 95 N.J. at363–65)).
However, as we have also noted, we review a sentencing court's
interpretation of the relevant statutes and the Drug Court Manual de novo.
Figaro, 462 N.J. Super. at 571. Although we generally defer to a sentencing
court's findings of fact and weighing of aggravating and mitigating factors,
Megargel, 143 N.J. at 493, we are not bound by a judge's interpretations of the
legal consequences that flow from established facts. See Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus, our review
of Drug Court track classification is de novo, as this determination is based
solely on whether the person is presently subject to a presumption of
imprisonment or a mandatory minimum period of parole ineligibility.
Because the trial court in some of the cases before us misinterpreted the
statutory framework and applied the wrong track classification, we deem it
necessary to remand those cases for reconsideration. The trial court initially
denied admission to these defendants on the grounds they were categorically
disqualified under N.J.S.A. 2C:35-14. We recognize that the trial court issued
amplification letters in which the court essentially ruled—in the alternative—
that these defendants would be denied admission to Drug Court even if they
were deemed to be Track Two candidates. We believe it is important,
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however, for a court considering the criteria enumerated in N.J.S.A. 2C:35-
14(a) to recognize whether those circumstances are legal prerequisites for
Track One candidates or merely relevant factors to be considered along with
all other relevant circumstances for Track Two candidates. Importantly, when
those statutory criteria are deemed to be discretionary factors rather than
categorical disqualifying circumstances, they must be viewed through the lens
of a TASC evaluation. A defendant's prior criminal history, for example, may
be the product of a long-standing addiction. In those circumstances, a trial
court exercising its discretion in dealing with a Track Two candidate should
consider whether the time has finally come to address the defendant's addiction
and interrupt the cycle of recidivism.
So too a trial court's determination whether a Track Two candidate's
admission to Drug Court would pose a danger to the community should be
made with regard to a TASC evaluation. That professional diagnostic
assessment might inform not only whether the circumstances giving rise to the
finding of danger—such as past criminal behavior—can be attributed to a
long-standing addiction but also whether and to what extent rehabilitation
services such as inpatient treatment might ameliorate the risk of future danger.
We recognize that the trial court on remand may well reach the same
conclusions as before. The court on remand retains discretion to reject a Track
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Two candidate based on the court's consideration of the TASC evaluation and
recommendation of the evaluator, the non-binding recommendation of the
prosecutor and other team members, the factors set forth in N.J.S.A. 2C:35-
14(a) as permitted under Figaro and the 2020 Manual, the danger defendant's
admission would pose to the community, and the aggravating and mitigating
circumstances set forth in N.J.S.A. 2C:44-1(a) and (b). We offer no opinion as
to whether any of the five defendant-appellants in this consolidated appeal
should be admitted to Drug Court.
Those defendants—Edger, Santiago, Nelson, Rice, and Matlack—seek to
have their cases remanded to a different judge, arguing that the trial court's
amplification letters suggest the judge is predisposed to deny their ad mission
to Drug Court under Track Two. We reject that argument. When leave to
appeal an interlocutory order is granted, a Law Division judge is permitted to
amplify the statement of reasons previously made. R. 2:5-6(c).22 It is well-
22
We note that in some cases before us, defendants challenge the trial court's
amplification letters on procedural grounds, claiming that counsel had not been
given an opportunity to be heard on the applicability and weighing of
aggravating and mitigating factors. The records show that the State in each
case raised the issue of aggravating and mitigating factors at oral argument
before the trial court. We note that defendants therefore had an opportunity to
respond to the State's arguments. In any event, because the trial court's
amplification letters were issued only in those cases that we now remand for
reconsideration, counsel will again have an opportunity for allocution at the
appropriate time.
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settled, moreover, that "[b]ias cannot be inferred from adverse rulings against
a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008).
We note that in Clarke, the Court remanded to the same judge for
reconsideration notwithstanding the judge had already denied the defendant's
application for Drug Court based on a misinterpretation of the statute 23 and
before having all relevant information about the defendant's history of
substance abuse and treatment needs. 203 N.J. at 183. We likewise have
complete confidence that the trial court on remand will faithfully and
impartially apply the relevant facts to the statutory law as we have interpreted
it.
The Supreme Court in Clarke also held that motions for determination of
Drug Court eligibility do not require plenary hearings and that "an informal
hearing is sufficient for the Drug Court to give full and fair consideration to a
defendant's application to the Drug Court program." Id. at 168. We leave to
the discretion of the trial court to determine how remand proceedings are to be
conducted.
(continued)
23
In Clarke, the trial court misconstrued the statutory term "drug dependent
person." 203 N.J. at 180–82.
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X.
Applying the foregoing principles, we affirm the Law Division orders
admitting defendants Falcone, Fogg, and Harris to Drug Court. The trial court
correctly classified these defendants as Track Two candidates because none of
them are presently subject to the presumption of imprisonment or a mandatory
term of parole ineligibility. We reject the State's contention that these
defendants are Track One candidates by virtue of their criminal records or past
incarceration episodes.
In these three cases, the trial court properly considered the criteria
enumerated in N.J.S.A. 2C:35-14(a) as relevant factors instead of categorical
disqualifying circumstances. In view of our deferential standard of review, we
see no basis to second-guess the trial court's assessment of the relevant
considerations.
We reverse the orders denying admission to defendants Edger, Santiago,
Nelson, Rice, and Matlack. The trial court erred in determining that these
defendants are Track One candidates because none of them presently face the
presumption of imprisonment or a mandatory parole ineligibility term. 24
24
We note again with respect to defendant Rice that the record does not
indicate that the State has applied for an extended term pursuant to N.J.S.A.
2C:43-6(f), which would trigger a mandatory minimum term of parole
ineligibility.
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Furthermore, we see nothing in the record indicating that the trial court in
these cases considered a TASC evaluation and the recommendation of the
TASC evaluator. We therefore remand these matters to the trial court for
reevaluation of their candidacy for Drug Court in accordance with the
principles and guidelines set forth in this opinion. We express no opinion
whatsoever about these defendants' potential admission to the program or the
ultimate sentences to be imposed by the court upon any adjudication of guilt.
Affirmed as to defendants Falcone, Fogg, and Harris. Reversed and
remanded as to defendants Edger, Santiago, Nelson, Rice, and Matlack. We do
not retain jurisdiction.
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