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State v. Clarke

July 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RICHARD CLARKE, DEFENDANT-RESPONDENT.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
WILLIAM T. DOLAN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in these companion appeals is whether the Appellate Division erred in remanding for plenary hearings to evaluate the credibility of witnesses before deciding the issue of admission into the Drug Court program.

Defendant Richard Clarke was indicted for third-degree theft. While employed by Staples, he entered fraudulent merchandise returns and removed money from the safe up to six times per week. He applied for admission into the Drug Court program. He revealed to the substance abuse evaluator that he smoked $200 worth of crack cocaine daily for a year-and-a-half period, but ended his drug abuse without treatment before the indictment. The evaluator noted a high likelihood that Clarke would relapse to using drugs without close monitoring. She recommended that he complete a partial hospitalization treatment program to continue abstinence and begin a recovery program. She also met with Clarke's wife, who reported being unaware of her husband's drug use. The prosecutor objected to Clarke's admission into Drug Court, arguing that he was ineligible because of his prior convictions for theft and wire fraud, and questioning the truth of his claimed drug history. Clarke appealed the prosecutor's rejection of his Drug Court application. After a hearing, the Drug Court concluded that Clarke's prior convictions for second-degree offenses required the prosecutor's approval for admission under the first track; that Drug Court is reserved for defendants who are drug dependent at the time of sentencing, so the prosecutor's objection was not a gross and patent abuse of discretion; that Clarke is ineligible for Drug Court under the second track, which also requires substance abuse as a prerequisite for admission; and that in weighing the three aggravating factors against no mitigating factors, a probationary sentence would not be appropriate for Clarke.

Defendant William T. Dolan was indicted for multiple counts of third-degree burglary, attempted burglary, and theft. He admitted his involvement in multiple burglaries. He applied for admission into the Drug Court program. Before the substance abuse evaluation was completed, the prosecutor objected to Dolan's admission because he was "a threat to the community" in light of his criminal history, which included several burglary convictions. The prosecutor also argued that based on the aggravating and mitigating factors, Dolan was eligible for an extended-term sentence, not probation. Dolan appealed the prosecutor's rejection, arguing that his prior convictions were typical for drug-addicted people and did not mean he was a danger to the community. He also noted that a prior drug evaluation had recommended inpatient drug treatment. Meanwhile, the evaluator reported that Dolan had revealed using cocaine and heroin every day during the thirty days before his incarceration and that his past efforts to overcome his addiction failed. The evaluator recommended a high-intensity, long-term residential treatment program. Following a hearing on Dolan's appeal, the Drug Court denied relief. The judge mentioned the prior drug evaluation, but made no reference to the recent evaluation. The judge found that the prosecutor's objection based on Dolan's perceived threat to the community was not a patent abuse of discretion; that Dolan was ineligible under the second track because a danger to the community would result if he were placed on probation; and that, balancing the mitigating and aggravating factors, a probationary sentence would not be appropriate.

The Appellate Division granted Clarke's and Dolan's motions for leave to appeal and remanded the matters for the Drug Court judge to hold a "plenary hearing" as to whether each is in need of drug treatment and otherwise meets the criteria of the "second track" for the Drug Court program, and to make findings of fact and evaluate the credibility of witnesses. For Dolan, the panel also directed the judge to consider whether his history of burglaries disqualified him under principles applicable to the second track. The Court granted the State's motions for leave to appeal. 200 N.J. 204 (2009).

HELD: An informal hearing is sufficient for the Drug Court to give full and fair consideration to a defendant's application for admission into the Drug Court program. However, because it is not clear whether the trial court applied the correct legal standard for admission under the "second track" of the requirements, each case is remanded for further proceedings.

1. The Drug Court team approach features the judge interacting with court staff, probation officers, treatment counselors, substance abuse evaluators, and the prosecutor and defense attorney to monitor a participant's recovery.The practices and procedures of the Drug Court are set forth in the Drug Court Manual, which outlines the two tracks for admission. Under the first track, the applicant must meet the requirements for "special probation." If the applicant committed a crime that is subject to a presumption of imprisonment and the applicant satisfies certain factors, the judge imposes a period of "special probation." If the prosecutor does not consent, however, the judge may only admit the applicant under track one if the judge finds a "gross and patent abuse of prosecutorial discretion." An applicant is eligible for Drug Court sentencing under track two if certain requirements are met, including that the person has drug or alcohol dependence, monitoring is likely to benefit the person, and placing the person on probation will not likely result in a danger to the community. First-degree and second-degree offenders are disqualified from admission into Drug Court under track two. Under the second track, the applicant must convince the judge that a probationary sentence under the general sentencing provisions of the Code of Criminal Justice is appropriate, based on a weighing of the statutory aggravating and mitigating factors. (pp. 11-14)

2. Prior to the judge's determination of an application for admission to the Drug Court program, the prosecutor or substance abuse evaluator may oppose the application for legal or clinical reasons. The applicant may seek review of that rejection and a hearing date will be set. Under the second track, the prosecutor's view should be considered, but it is not given the special deference afforded in the first track. In deciding whether to admit an applicant into Drug Court, the judge is afforded wide discretion as long as the sentence is within the statutory framework. (pp. 14-15)

3. A plenary hearing is not required when there is an objection to an applicant's admission into Drug Court. A determination whether to approve a Drug Court application is essentially a sentencing decision. Under each track, the judge decides whether a probationary sentence is appropriate. The Manual's requirement that each application receive "full and fair consideration" does not require a plenary hearing. The Legislature used similar language for the Pretrial Intervention Program (PTI). In that setting, the Court held that review of a prosecutor's rejection for admission into the PTI program does not require a trial-type proceeding, but that defendant shall have an informal hearing before the judge. There is no reason for a different result in the Drug Court setting. In weighing aggravating and mitigating factors, our courts traditionally rely on informationpreviously submitted by court staff and parties, as well as the arguments of counsel. The judge may receive comments from interested persons in an informal fashion. (pp. 15-17)

4. Prior to the hearing, the judge will have received a considerable amount of information through the Drug Court team's informal sharing of information. If a plenary hearing were required with testimony and cross-examination of team members, it may have a negative impact and upset the balance created by the collaborative team approach. A plenary hearing at which team members would testify is not required. Although judges have discretion to permit witnesses to testify when a genuine issue of material fact must be resolved, an informal hearing is sufficient to give full and fair consideration of an applicant's appeal. (pp. 17-18)

5. Neither Clarke nor Dolan was eligible for admission into the Drug Court program under the first track, so there was no need to refer to the abuse of discretion standard to overrule the prosecutor's objection. It is unclear from the record whether the judge applied that standard in considering the objection under the second track, which would be error. (pp. 18-19)

6. Also, in Clarke's case, the judge did not apply the correct definition of a drug dependent person, which includes a person who was dependent at the time of the offense, even though the person has made progress toward rehabilitation by the time of sentencing. The judge also did not address the substance abuse evaluator's findings that Clarke's drug dependence was in early remission and there was a likelihood of relapse without monitoring and therapeutic services. Although the judge found three aggravating factors and that a probationary sentence would be inappropriate, those findings may have been influenced by the failure to appreciate that Clarke's drug dependency at the time of the offense was an important factor. The Court remands to the Drug Court for further consideration of Clarke's application. (pp. 19-23)

7. In Dolan's case, the Drug Court erred by not considering the substance abuse evaluation. A fair deliberative process requires consideration of all relevant information. On remand, it also should be clear that the patent abuse of prosecutorial discretion standard is not applied in considering Dolan's eligibility for Drug Court under the second track. (pp. 23-25)

The judgment of the Appellate Division in each case is AFFIRMED IN PART, and the matters are REMANDED to the Drug Court for reconsideration consistent with the views expressed in the Court's opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued February 23, 2010

We consolidate these companion Drug Court appeals for the purpose of this opinion and address whether it was error for the Appellate Division to remand in both cases to conduct "plenary" hearings. In each case, the prosecutor objected to the admission of the defendant into Drug Court, and each appealed. The Drug Court judge relied on several reasons to deny relief in separate written opinions. The Appellate Division granted leave to appeal in each case and summarily remanded for the Drug Court to conduct plenary hearings and to evaluate the credibility of the witnesses before deciding the issue of admission into the Drug Court program. We granted leave to appeal.

We hold that a plenary hearing is not necessary, but that, similar to our Pretrial Intervention protocol and our sentencing procedures, 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. However, because we cannot fully determine whether the trial court applied the correct legal standard for admission to the Drug Court under the so-called "second track" of the requirements, we remand in each case for further proceedings.

I.

A. State v. Clarke

In September 2008, a Somerset County grand jury indicted defendant Richard Clarke for third-degree theft by deception, N.J.S.A. 2C:20-4(a). Clarke admitted that from January 2008 to June 2008, while employed by Staples, Inc., he entered fraudulent returns of merchandise and removed money from the store's safe. The amount of the fraudulent returns ranged from fifteen to several hundred dollars. Clarke claimed he did this as often as six times per week.

On October 24, 2008, Clarke applied for admission into the Somerset County Drug Court program. He was interviewed by the substance abuse evaluator for the Drug Court. Clarke revealed that he smoked $200 worth of crack cocaine daily for a year-anda-half period, but ended his drug abuse without the assistance of any treatment in July 2008. He said that although he had been married for six months, his wife knew nothing of his addiction.

The evaluator noted that "[t]here is a high likelihood that Mr. Clarke will relapse to [the] use of drugs without close outpatient monitoring and structured therapeutic services[.]" She recommended that Clarke "complete a Level II.5 -- Partial hospitalization treatment program to continue abstinence and begin a program of recovery. In a Level II.5 program, Mr. Clarke should be able to obtain access to physicians that may be able to help stabilize his medical conditions." Additionally, following a meeting with Clarke's wife, the evaluator made a progress note, outlining the wife's comments that she was unaware of her husband's drug usage.

On January 15, 2009, the prosecutor submitted a written objection to Clarke's admission into Drug Court, noting that Clarke's prior convictions for second-degree theft in 1999 and 2003, and his federal conviction for wire fraud in 1999, rendered him ineligible for the Drug Court program. The prosecutor asserted that defendant's claimed drug history did not match the facts of his life and he seriously questioned the veracity of Clarke's alleged drug use.

On February 1, 2009, Clarke responded to the prosecutor's objection letter, contesting each one of the claims. Clarke next filed an appeal to the prosecutor's rejection of his Drug Court application. A hearing before the Drug Court was held on April 6, 2009. In a written decision, the Drug Court judge began his analysis by setting forth the criteria for admission to the Drug Court program. The judge noted that defendant's multiple prior convictions for second-degree offenses required the prosecutor's approval for admission under the first track. Further, the judge explained that Drug Court is reserved for those defendants who are drug dependent at the time of sentencing and if Defendant is no longer drug dependent, a probationary sentence is not appropriate for him. Thus, this Court finds that the prosecutor's decision to object to Defendant's application for Drug Court was not a patent and gross abuse of discretion. Further, Defendant is also ineligible for Drug Court under the second track which also requires substance abuse as a prerequisite for admission.

Additionally, the Drug Court judge weighed the aggravating and mitigating factors, finding three applicable aggravating factors and no mitigating factors. As a result, the judge concluded that a probationary sentence would not be appropriate for defendant. The judge specifically noted that "these issues were addressed in the Drug Court Team Conference where ...


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