August 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
On appeal from an Interlocutory Order of Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-07-1608.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2012
Before Judges Cuff and St. John.
On leave granted, the State appeals from a Law Division order overturning the prosecutor's rejection of an application by defendant J.B., for participation in the Essex County drug court program stemming from charges of third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a (count three); and second-degree possession, distribution or possession with intent to distribute a prescription legend drug, N.J.S.A. 2C:35-10.5a (count four). The State argues that the motion judge erred by ordering defendant's admission into the drug court program over the prosecutor's objection.
In a single point on appeal, the State argues:
THE TRIAL COURT ERRED BY FINDING A PATENT AND GROSS ABUSE OF DISCRETION AND OVERRIDING THE VALID LEGAL OBJECTION RAISED BY THE STATE AS TO THE DEFENDANT'S APPROPRIATENESS FOR DRUG COURT.
After careful consideration of the record and the applicable law, and in light of the Legislature's enactment of a statute repealing N.J.S.A. 2C:35-14c,*fn1 we remand for further proceedings consistent with the July 2012 amendment to N.J.S.A. 2C:35-14. We add only the following.
The record reveals that following Essex County Grand Jury Indictment No. 10-07-1608, charging defendant with the four counts set forth above, defendant entered a plea of not guilty, and filed an application for entry into Essex County's pretrial intervention program (PTI). The event underlying the indictment occurred on January 18, 2010, when defendant burglarized Terry's Drugs in Bloomfield and stole over 5000 prescription pills with a retail value of $11,078, and a purported street value of $200,000. When defendant was subsequently arrested, police recovered $625 and a sizable quantity of prescription pills in his possession. It is undisputed defendant suffered from an addiction to prescription painkillers before and around the time of the offense, and that he previously reported using Oxycodone and Alperexerolim.
In September 2010, defendant's PTI coordinator rejected his PTI application on the grounds that he had been charged with a second degree offense, and that he had an extensive criminal history as a juvenile and adult. Shortly thereafter, the prosecutor informed defendant that the State would not consent to his enrollment into PTI, determining ultimately that the aggravating factors outweighed the mitigating factors enumerated under N.J.S.A. 2C:43-12e, such that "Society will be better served by traditional prosecution." The prosecutor cited his reasons, which we rooted in the nature of the offense, "involving a large quantity of narcotics as well as the burglary of the pharmacy[,]" and that defendant did not demonstrate something extraordinary, unusual, or idiosyncratic in his background justifying his admission.
Defendant then moved before the trial judge for an order permitting his entry into the drug court program or, in the alternative, to continue with the application process. On May 18, 2011, the motion judge determined defendant "clearly and convincingly established that the prosecutor's legal rejection of the defendant's application for admission into drug court was a gross and patent abuse of conviction . . ." The judge then ordered a TASC*fn2 evaluation, which found "that there is a co-occurring issue, and the co-occurring issue is a psychologically dependency on drugs for his pain." The judge determined the prosecutor abused her discretion and that defendant had met his burden. At a hearing on May 27, 2011, the judge rendered a supplemental decision finding that within N.J.S.A. 2C:35-14, defendant had met all the requirements for admission into drug court, except for the determination of an appropriate placement.
At the outset, we note that "[d]rug courts are specialized courts within the Superior Court that target drug-involved 'offenders who are most likely to benefit from treatment and do not pose a risk to public safety.'" State v. Meyer, 192 N.J. 421, 428 (2007) (internal citation and quotation marks omitted). See also Administrative Office of the Courts, Manual for Operation of Adult Drug Courts In New Jersey, Directive #2-02 (July 22, 2002), available at http://www.judiciary.state.nj. us/directive/criminal/dir_02_02.pdf. "Participants in drug court programs are subject to intensive supervision, frequent drug testing, and regular court appearances, combined with treatment and recovery services." Meyer, supra, 192 N.J. at 429. Admission to drug court requires the court to find: that defendant 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." N.J.S.A. 2C:35-14(a)(1)-(5). Defendants convicted of certain offenses and charged with certain crimes are per se ineligible, N.J.S.A. 2C:35-14(a)(6), (7), and a licensed facility approved by the Department of Health must agree "to provide appropriate treatment services," N.J.S.A. 2C:35-14(a)(8). Moreover, the court must find that "no danger to the community will result from the person being placed on special probation," N.J.S.A. 2C:35-14(a)(9).
N.J.S.A. 2C:35-14(a) also requires that the court consider "all relevant circumstances" including those developed at "the trial, plea hearing or other court proceedings," as well as the "presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment."
N.J.S.A. 2C:35-14(a). [State v. Hester, 357 N.J. Super. 428, 438-39 (App. Div.) (alterations in original), certif. denied, 177 N.J. 219 (2003).]
Until recently, a defendant was not ordinarily eligible for the drug court program under N.J.S.A. 2C:35-14(a) if the prosecutor objected to the person being placed on special probation. N.J.S.A. 2C:35-14(c)(2). However, a court could still sentence a defendant to special probation under that statutory authorization if it found a "gross and patent abuse of prosecutorial discretion." Ibid. On July 19, 2012, the Legislature repealed section (c) of N.J.S.A. 2C:35-14, thus removing the prosecutor's objection acting as an impediment to the court's decision to sentence a defendant to special probation. See P.L. 2012, c. 23 (N.J.S.A. 2C:35-14).
During the pendency of this appeal, the Legislature determined that judges shall be vested with additional discretion in admitting defendants to the drug court program. The drug court program and the ability to impose a specific sentence is a legislative matter, see, e.g., State v. Des Marets, 92 N.J. 62, 77-81 (1983) (upholding Graves Act legislation preventing suspended sentences), and the question before us relates to the legislative intent concerning the availability of the disposition or sentence alternative. Accordingly, here, whether the judge abused her discretion in overturning the prosecutor's rejection of defendant's drug court program admission must now be guided by the legislative intent as set forth in the amendment.
Based on our review of the record in the light of the arguments advanced on appeal as well as the recent legislation governing drug court program admission, and the prevailing legal standards, we remand to the Law Division for imposition of sentence pursuant to N.J.S.A. 2C:35-14, as amended. We do not retain jurisdiction.