On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 03-01-0049-I.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Conley, Braithwaite and Winkelstein.
On January 14, 2003, an Ocean County Grand Jury indicted defendant, Stanley Matthews, charging him with sixteen counts of third-degree burglary, six counts of third-degree theft, one count of third-degree attempted burglary, and one count of fourth-degree theft. The following week, he applied for placement into the Ocean County drug court program. The prosecutor objected. The Law Division judge concluded that the objection was not a patent and gross abuse of discretion, and denied defendant admission into the program. Then, before another judge, defendant pleaded guilty to three third-degree burglary counts and three third-degree theft counts, with the remaining counts to be dismissed. The judge imposed three consecutive five-year terms, each with a two and one-half-year period of parole ineligibility.
On appeal, defendant challenges the order denying his admission into the drug court program, and the imposition of the fifteen-year sentence, claiming the sentence violated the terms of his plea agreement. We affirm.
We first address the court's order denying defendant admission into the drug court program. Drug courts have been developed as an alternate to incarceration for certain drug-addicted defendants. While no statutory definition of a "drug court" exists, the Administrative Office of the Courts (AOC), by Directive No. 2-02 issued on July 22, 2002, promulgated a Manual for Operation of Adult Drug Courts in New Jersey (the manual), which defines drug courts as "a highly specialized team process that function within the existing Superior Court structure to address nonviolent drug-related cases." The manual was issued on the heels of legislation enacted on September 6, 2001, creating an additional six Superior Court judges to effectuate the use of drug courts on a statewide basis. See N.J.S.A. 2B:2-1; Senate Judiciary Committee, Statement to S. 2227 (March 26, 2001) (statute enacted to permit expansion on statewide basis of drug court program in Superior Court over two-year period).
"The target population [for drug courts] was offenders eligible for sentencing pursuant to N.J.S.A. 2C:35-14." This statute was amended in 1999 to establish a program of "special probation" for certain offenders under certain conditions. State v. Hester, 357 N.J. Super. 428, 438 (App. Div.) (quoting L. 1999, c. 376, § 2), certif. denied, 177 N.J. 219 (2003). In part, N.J.S.A. 2C:35-14a provides:
Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.A. 2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person is convicted of . . . an offense, other than one described in subsection b. of this section, the court . . . may . . . place the person on special probation . . . .
A defendant is only eligible for special probation, however, if he or she is "drug or alcohol dependent," committed the underlying offense while "under the influence" of a controlled dangerous substance, "did not possess a firearm" at the time of offense or any pending charge, and that defendant will "benefit" from the program which "will thereby reduce the likelihood that [he or she] will thereafter commit another offense." [Hester, supra, 357 N.J. Super. at 438-39 (quoting N.J.S.A. 2C:35-14a(1)-(5)).]
In addition to these restrictions, defendants who are convicted of certain offenses are per se ineligible for the program. Id. at 439; N.J.S.A. 2C:35-14a(6)&(7). Additional limitations are placed upon admission making a person ineligible for special probation if he or she is convicted of:
(1) a crime of the first degree;
(2) a crime of the first or second degree enumerated in subsection d. of N.J.S.[A.] 2C:43-7.2 ...