State of New Jersey v. Gregory Maurer

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3527-13T2

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 17, 2014
v.
APPELLATE DIVISION
GREGORY MAURER, a/k/a GREGORY M.
MAVERER,

Defendant-Appellant.
__________________________________

Argued October 15, 2014 – Decided December 17, 2014

Before Judges Lihotz, Espinosa and
Rothstadt.

On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment Nos. 12-10-1016, 12-11-1100,
12-11-1174; and Burlington County,
Indictment No. 13-03-0219.

Fred B. Last, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Last, of counsel and on the
brief).

Joseph M. More, Jr., Assistant Prosecutor,
argued the cause for respondent (Sean F.
Dalton, Gloucester County Prosecutor,
attorney; Mr. More, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.
 We granted defendant Gregory Maurer leave to appeal from

the Law Division's January 15, 2014 denial of his appeal from

the prosecutor's rejection of his application for sentencing

into Drug Court. The prosecutor's and the court's decisions

were based solely on defendant's prior conviction for a weapons

crime and ostensibly made in accordance with N.J.S.A. 2C:35-14

(the Drug Court Statute)1 and the Administrative Office of the

Courts' (AOC) "Manual for Operation of Adult Drug Courts in New

Jersey" (July 2002) (Manual). On appeal defendant argues:

I. THIS COURT MUST [] REVERSE TO CORRECT
A SERIOUS ANOM[A]LY IN DRUG COURT
ADMISSION REQUIREMENTS, TO FOSTER MORE
CONSISTENT SENTENCING, AND TO SEE THIS
DEFENDANT SENTENCED TO DRUG TREATMENT
AND NOT PRISON.

A. Sentencing under the Criminal Code
is offense[-]based.

B. Sentencing in Drug Court
remediates the harshness of
offense-based sentencing.

C. The standards for admitting Track
II defendants are now functionally
more restrictive than those for
Track I defendants, creating an
anomaly and unacceptable
disparities in sentencing
requiring that they be modified to
conform to the current law as

1
The statute does not mention a "drug court," but rather
establishes "special probation" applicable for certain drug
offenses, as discussed further, infra.

2 A-3527-13T2
 other requirements have by
practice.

D. Defendant, who would qualify for
Track I admission but for the fact
that he is not charged with crimes
sufficiently serious for Track I
admission, should be admitted for
fulfilling the historically more
stringent requirements for Track I
admission.

E. The facts underlying the prior
conviction do not implicate the
Manual's exclusion.

F. Defendant's participation in the
Drug Court would not present
danger to the community.

In response, the State argues the court properly rejected

defendant's Drug Court application because the court's decision

was "consistent with current Drug Court sentencing guidelines as

outlined in N.J.S.A. 2C:35-14 and in the [] Manual" as defendant

was "not legally eligible for Drug Court special probation."

The parties' dispute required us to consider their

arguments in light of the record, as well as the history of New

Jersey's successful Drug Court program, the application of the

Manual's guidelines, and the Drug Court statute as recently

amended. Having done so, we reverse the January 15, 2014 order

and remand the matter to the Law Division for further

3 A-3527-13T2
consideration of defendant's application consistent with our

opinion.

I.

At the time of his April 2013 Drug Court application,

defendant was twenty-five years old, had a history of several

controlled dangerous substance (CDS) offenses and was the

subject of four pending, separate indictments. In 2012, a

Gloucester County Grand Jury returned one indictment, charging

defendant with third-degree possession of CDS (oxycodone),

N.J.S.A. 2C:35-10(a)(1); another indictment, charging him with

two counts of third-degree possession of CDS, N.J.S.A. 2C:35-

10(a)(1) (oxycodone and heroin); and a third, charging him with

third-degree possession of CDS (cocaine), N.J.S.A. 2C: 35-

10(a)(1). In 2013, a Burlington County Grand Jury returned an

indictment, charging him with two counts of third-degree theft

by unlawful taking, N.J.S.A. 2C:20-3(a); one count of fourth-

degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4); and one

count of third-degree burglary, N.J.S.A. 2C:18-2(a)(1). He had

also been charged with the disorderly person offense of

possession with intent to use a hypodermic syringe, N.J.S.A

2C:36-6(a).

Defendant's criminal history included crimes related to his

drug use. In 2007, he was convicted of possession of CDS

4 A-3527-13T2
(cocaine), sentenced to probation, which he subsequently

violated. The reviewing judge found defendant violated

probation because he was charged with possession of a weapon,

N.J.S.A. 2C:39-5(b) and imposed a term of imprisonment. The

arrest that led to the charge occurred on December 1, 2008,

while police officers were conducting a surveillance of an area

in Camden known for its open drug activity. Police observed

defendant arrive by car, driven by another, and engage in a

suspected drug transaction. When police detained defendant, he

stated a gun was in the vehicle, but it did not belong to him.

The police located the gun, determined it had been stolen and

charged defendant with possession of the handgun and hollow

point bullets, as well as receiving stolen property.

According to police, while defendant and the driver were

waiting to be processed, defendant tried to convince the driver

to take responsibility for the weapon as defendant was concerned

he could get a lengthy prison term because of his prior record,

while the driver would not receive as harsh a sentence because

he had no prior convictions. Consequently, police charged

defendant with witness tampering, N.J.S.A. 2C:28-5.

Defendant pled guilty to a second-degree weapons possession

offense and was sentenced, in the third-degree range, to a

three-year prison term, subject to a one-year period of parole

5 A-3527-13T2
ineligibility, pursuant to the "Graves Act," N.J.S.A. 2C:43-6,

-6.2. The remaining charge was dismissed.

Following release from prison, defendant committed three

CDS offenses prior to the return of the Gloucester and

Burlington County indictments. Each of these offenses was

remanded to municipal court for disposition.

While awaiting disposition, defendant was held in the

Burlington County jail, where he entered into substance abuse

counselling programs, including Narcotics Anonymous. He posted

bail on November 8, 2013 and applied for admission to Drug Court

in Gloucester County. Defendant asserts his attorney secured a

commitment to consolidate the Burlington County charges with the

Gloucester County charges, if he were admitted into Drug Court.

When defendant's appeal of the prosecutor's denial of his

request for Drug Court admission in Gloucester County was

considered, defendant was not only receiving counselling, but

also employed as an outreach counselor for a drug treatment

facility in Florida. The Gloucester County prosecutor rejected

defendant's application, citing his prior weapons offense, and

defendant appealed to the Law Division.

On January 15, 2014, the court considered the parties'

arguments and denied defendant's appeal. In a written decision,

the judge reviewed the criteria for admission into Drug Court

6 A-3527-13T2
under the Drug Court Statute and the Manual. He found

"defendant is a Track Two[2] applicant because he [wa]s charged

with 3rd degree crimes for which there are no mandatory extended

terms of imprisonment." However, the court also found "[t]his

defendant was previously convicted of the crime of possession of

a handgun, and is therefore ineligible for the Drug Court

program."

This appeal followed.

II.

"Drug 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, 428-29 (2007) (quoting

Manual, supra, at 3). The Supreme Court has repeatedly

recognized the positive role Drug Courts play in our society.

State v. Clarke, 203 N.J. 166, 174 (2010) (citing Meyer, supra,

192 N.J. at 429).

[Drug C]ourts address the seemingly
intractable social problem presented by the
scourge of drugs that has devastated

2
As discussed infra, the Manual describes two tracks through
which defendants can be sentenced into Drug Court: one under the
statutory criteria in the Drug Court Statute (Track One) and the
other (Track Two) under the Manual's criteria for defendants who
are not eligible under the statute.

7 A-3527-13T2
countless families and is the source of so
many collateral crimes. What distinguishes
Drug Courts from other courts is the
oversight and personal involvement of the
[D]rug [C]ourt judge in the treatment
process. A team approach is a distinctive
feature of Drug Court. The judge leads
court staff, probation officers, treatment
counselors, substance abuse evaluators, and
the prosecutor and defense attorney to
monitor a participant's recovery.
Participants in [D]rug [C]ourt programs are
subject to intensive supervision, frequent
drug testing, and regular court appearances,
combined with treatment and recovery
services.

Drug Courts have achieved notable
success. Within three years of finishing a
[D]rug [C]ourt program, only fourteen
percent of [D]rug [C]ourt graduates were
arrested for new indictable crimes. In
comparison, a fifteen-state study found that
67.5 percent of offenders released in 1994
had been rearrested within three years of
release. Ninety-five percent of drug tests
taken by New Jersey program participants
produced negative results, and at the time
of graduation, ninety-three percent of the
participants were employed. Drug [C]ourt
programs are credited with helping
participants give birth to drug-free babies
and regain custody of their children.

Additionally, the State realizes
substantial cost-savings through [D]rug
[C]ourt programs. The average cost per year
to house an inmate in state prison is
$34,218 compared to $17,266 to give that
same offender the rehabilitative services of
Drug Court, including six months of in-
patient treatment.

8 A-3527-13T2
 Those few statistics show the obvious
benefits of our [D]rug [C]ourt programs. [3]

[Meyer, supra, 192 N.J. at 429-30 (citations
and internal quotation marks omitted).]

The executive and legislative branches have also recognized

the success and value of the Drug Court program. See Preamble

to Executive Order No. 83 dated November 28, 2011, "Creation of

the Governor's Task Force on Recidivism Reduction," 44 N.J.R.

3
Statistics from the AOC through December 2013 reflect the Drug
Court's success:

A) Total number of participants enrolled in the New Jersey adult drug court program 14,783
since 4/1/02
B) Number of current (active, non fugitive) participants in the program 5,510
C) Number of participants who have successfully commenced and are currently in the final 601
phase of the program
D) Number of participants successfully graduated from all phases of the program 3,400
E) Statewide One-Year Participant Retention Rate 83.4%
F) Statewide Program: (4/1/02 to present) Cumulative Rate of Program Retention 57.2%
G) Since 4/1/02, percentage of participants
African American: 42%
Caucasian: 47%
Hispanic/Latino: 9%
Other: 2%
H) Percentage of active participants who are full-time employed 68%
I) Percentage of participants employed at the time of graduation 90%
J) Percentage of negative drug tests (over 10,000 tests conducted per month) 96%
K) Number of drug free babies born to participants (Total of 308 including pilot 286
program statistics)
L) Number of parents who regained custody of their minor children due to their 144
participation in the program (Total of 174 children including pilot program
statistics)
M) Percentage of graduates who improved their level of education or vocational skills 29%
while in the program
N) Total amount of fines, fees and penalties paid by drug court graduates while in the $6.74 million
program.
O) Drug Court Graduates w/in 3 years of graduation
Current rate of re-arrest in NJ for new indictable crimes 14%
Current rate of re-conviction in NJ for new indictable crimes 5%
Current rate of new sentences to NJ state prison 2%
P) Drug Court Graduates at any time since graduation. (Some participants graduated over
10 years ago) 8%
Total recidivism rate (re-conviction of NJ indictable crime) for all graduates at
any time since graduation:
Pilot Drug Court Programs were operating before 4/1/02 in Camden, Essex, Mercer, Passaic
and Union Counties.
SOURCE: Administrative Office of the Courts, Drug Court Unit, Trenton, NJ, 2010. For
more information call 609-292-3488

9 A-3527-13T2
3(a) (January 3, 2012) ("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 . . . .") and the legislative history of the 2012

amendments to the Drug Court Statute discussed, infra.

III.

Our review of a trial court's application of the Drug Court

Statute and Manual to a defendant involves a question of law.

"Our standard of review on legal issues is de novo and we owe no

deference to the trial court's 'interpretation of the law and

the legal consequences that flow from established facts [.]'"

State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011)

(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

The Drug Court Statute creates a "special probation" as

compared to regular probation, which has long been an authorized

disposition under the New Jersey Code of Criminal Justice

(Code), N.J.S.A. 2C:1-1 to 2C:104-9. See N.J.S.A. 2C:43-

2(b)(2); N.J.S.A. 2C:35-14.

In general terms, a regular probationary sentence is

typically imposed for third- or fourth-degree offenses, which do

not contain a specific provision requiring a state prison

sentence. For such offenders with no prior criminal record,

10 A-3527-13T2
there is a presumption against incarceration, and for such

offenders with a prior record, there is no presumption either

for or against a custodial sentence. N.J.S.A. 2C:44-1(e);

Meyer, supra, 192 N.J. at 433 n.5. Where there is no

presumption either for or against incarceration, the court must

"weigh the aggravating and mitigating factors enumerated in

N.J.S.A. 2C:44-1(a) and (b)" in making the "in-out" decision,

that is, whether to impose a state prison sentence or a

probationary sentence. Clarke, supra, 203 N.J. at 176; Meyer,

supra, 192 N.J. at 433 n.5.

As we recently explained:

For crimes of the first or second
degree, there is a presumption of
imprisonment, N.J.S.A. 2C:44-1(d), which is
rarely overcome. State v. Soricelli, 156
N.J. 525, 532-34 (1999). Thus, for such
offenders, a regular probationary sentence
is almost never appropriate under the Code's
general sentencing provisions.

Special probation is another authorized
disposition under the Code. It is not
contained in N.J.S.A. 2C:43-2(b)(2), but in
N.J.S.A. 2C:35-14. The term "special
probation" first appeared in that section
when it was amended in 1999. Meyer, supra,
192 N.J. at 434 . . . . [T]hat amendment,
together with subsequent amendments, set
special probation apart from regular
probation, rendering each a separate and
distinct sentencing disposition authorized
by the Code.

Special probation is designed to divert
otherwise prison-bound offenders into an

11 A-3527-13T2
 intensive and highly specialized form of
probation designed to "address in a new and
innovative way the problem of drug-dependent
offenders caught in a never-ending cycle of
involvement in the criminal justice system."
Id. at 434-35. Thus, the Legislature
created special probation as a disposition
aimed specifically at prison-bound
offenders, who would not be eligible for
regular probation.

[State v. Bishop, 429 N.J. Super. 533, 539-
40 (App. Div.), certif. granted, 216 N.J. 14
(2013).]

The basic objective of the Drug Court Statute "is to allow

deserving prison-bound addicted offenders the opportunity for

'special probation,' an opportunity to recover from the throes

of their addiction and the cycle of their involvement with the

criminal justice system." Meyer, supra, 192 N.J. at 428. It

"does not suggest that addicted offenders whose crimes do not

mandate a prison sentence and who are eligible for probation

under N.J.S.A. 2C:45-1 should not be accorded the same judicial

resources to spur their rehabilitation as those who are facing

incarceration." Ibid.

"Surely, if [a] defendant is to receive a probationary term

conditioned on in-patient treatment and intensive supervision,

it is preferable th[e] defendant be monitored within a

specialized court with personnel who have the particularized

skills and training to maximize the prospect of the offender's

rehabilitation." Ibid. For that reason the Court created a

12 A-3527-13T2
second track for admission to "special probation" as defined in

the Manual for "non-prison bound offenders." Manual, supra, at

9.

The procedures for admission to and participation in Drug

Court is set forth in the Manual because "Drug Courts are a

creature of the judiciary . . . . " Clarke, supra, 203 N.J. at

174 (citation and internal quotation marks omitted).

Requirements for admission to Drug Court are clearly defined.

The [] Manual outlines two separate tracks
for admission into Drug Court. The
applicant must either meet the requirements
for special probation pursuant to N.J.S.A.
2C:35-14, [T]rack [O]ne, or otherwise be
eligible under other sections of the Code of
Criminal Justice[, T]rack [T]wo.

Under 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. A presumption of
imprisonment applies to an applicant who is
charged with a first or second-degree
offense. If the applicant is successful in
meeting the requirements for admission under
[T]rack [O]ne, the judge will then impose a
five-year period of special probation.
Admission under this track is generally
obtained with the prosecutor's consent. If
the prosecutor does not consent, the trial
judge may only admit the applicant under

13 A-3527-13T2
 [T]rack [O]ne if the judge finds a gross and
patent abuse of prosecutorial discretion.[4]

The second track permits applicants to be
admitted into Drug Court under the general
sentencing provisions of the Code of
Criminal Justice. An applicant is eligible
for Drug Court sentencing under this track
if:

a. the person has a drug or alcohol
dependence, as determined by a
diagnostic assessment and substance
abuse treatment and monitoring is
likely to benefit the person; and

b. the person has not been previously
convicted or adjudicated delinquent
for, and does not have a pending charge
of murder, aggravated manslaughter,
manslaughter, robbery, kidnapping,
aggravated assault, aggravated sexual
assault or sexual assault, or a similar
crime under the laws of any other state
or the United States; and

c. the person did not possess a firearm
at the time of the present offense and
has no history of possession of a
firearm during an offense; and

d. no danger to the community is likely
to result from the person being placed
on probation.

[Id. at 174-76 (citations and internal
quotation marks omitted).]

4
As discussed infra, the 2012 amendments to the Statute deleted
the prosecutor's ability to bar admission by withholding
consent.

14 A-3527-13T2
 Based on the quantifiable success of Drug Courts, the

Legislature broadened the scope of special probation through

amendments to the statute adopted in 2012. L. 2012, c. 23.

Evidence of the Legislature's intention to liberalize admission

to Drug Court is found in the legislative history for the 2012

amendments. For example, the Legislature contemporaneously

enacted N.J.S.A. 2C:35-14.1 and -14.2, effective July 1, 2013,

which permit a court to sentence a qualified offender under the

Drug Court Statute even if the defendant does not seek

admission, and even if the defendant is a third-degree offender,

who had been previously "convicted of a crime subject to the

presumption of imprisonment or that resulted in imposition of a

State prison term."

Also, 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." Senate Budget and Appropriation

Committee, Statement to S. 881 (April 3, 2012).

15 A-3527-13T2
 The 2012 amendments directly altered eligibility

requirements and procedures for consideration of Track One

defendants. For example, prior to the 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. Also, the amendments

removed the express ban on admission of those defendants who

committed either second-degree robbery or burglary offenses. L.

2012, c. 23, S.881, §5.

Despite the Legislature's clear intention to broaden Drug

Court access, the Manual has not similarly been modified and

remains as originally released in 2002. As a result, its

admission criteria for Track Two candidates continues to bar

defendants who have a criminal history that include convictions

for second-degree robbery involving a firearm, even though under

the statute as amended an offender who is at present sentenced

for the very same crime may be admitted to Drug Court if

otherwise qualified.

16 A-3527-13T2
 IV.

Defendant argues "[e]ligibility for admission for

defendants charged with less serious crimes is now . . . more

stringent than for those charged with more serious crimes,"

which is "inconsistent with the sentencing philosophy of the

Criminal Code and visits an injustice upon this class of

defendants." He claims the court's categorical denial of his

request for Drug Court admission was contrary to the clear

language of N.J.S.A. 2C:35-14, especially in light of the recent

amendments.

As noted, defendant was barred from admission to Drug Court

based on the Manual's requirements for Track Two admission,

which prohibits defendants who possessed a firearm "at the time

of the present offense [or if they have a] history of possession

of a fireman during [the commission] of an offense." Manual,

supra, at 16 (emphasis added). This condition is more

restrictive than the similar requirement for Track One offenders

who commit a more serious offense. Ibid. Under the statute, a

Track One offender is eligible for Drug Court if "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." Id. at 11 (emphasis added). A more serious offender

17 A-3527-13T2
may, therefore, have a prior conviction for a weapons charge and

still be eligible for Drug Court.

Drug Courts were created by the Supreme Court through a

directive.5 These specialized courts are operated as "creatures"

of our court system. The question we are therefore confronted

with is whether the Legislature's recent amendments to the

statute suggest a need for amendments to the admission criteria

for Track Two eligibility. We believe there is such a need.

The decision to alter or otherwise deviate from a

directive's requirements because of a legislative enactment

5
On July 22, 2002, then director of the AOC, Hon. Richard J.
Williams, issued directive 02-02 introducing the Manual, which
was only modified in 2004 to address the transfer of supervision
of participants from one county to another. See Dir. 14-04.
Notably, the 2002 directive stated (emphasis added):

New Jersey is currently in a process of
expansion and standardization of drug
courts. The [] Manual is a document that will
be evolving over the next few years . . . .

The [] Manual also details program
eligibility criteria . . . . The application
of uniform statewide eligibility criteria is
critical to operating the program equitably
throughout the State . . . .

As noted, while the [] Manual is now
being promulgated for immediate statewide
use, portions remain under ongoing
development and refinement . . . . As
specific standards or procedures are
developed and approved . . . [it] will be
supplemented . . . .

18 A-3527-13T2
involves a balancing of the powers reserved to each branch of

government. The need for striking a balance is clear from our

constitution's recognition: "The Supreme Court shall make rules

governing the administration of all courts in the State and,

subject to the law, the practice and procedure in all such

courts." N.J. Const. art. VI, § 2, ¶ 3 (emphasis added).

"'[S]ubject to law' mean[s] substantive law, such as legislation

and the common law, as opposed to pleading and practice." In re

P.L. 2001, Chapter 362., 186 N.J. 368, 380 (2006) (citing

Winberry v. Salisbury, 5 N.J. 240, 258, cert. denied, 340 U.S.

877, 71 S. Ct. 123, 95 L. Ed. 638 (1950)).

We have previously observed "[w]ith regard to the binding

effect of administrative directives . . . that in addition to

the Supreme Court's constitutional authority to 'promulgate

rules of administration as well as practice and procedure, . . .

the Chief Justice, as administrative head of the court system,

can promulgate binding directives either directly or through the

Administrative Director of the Courts.'" Williams v. State, 375

N.J. Super. 485, 510 (App. Div. 2005) (quoting State v. Linares,

192 N.J. Super. 391, 397 (Law Div. 1983)), aff'd, In re P.L.

2001, Chapter 362, supra, 186 N.J. at 368. However, "[t]here is

no question that the three branches of government do not stand

in isolation from each other[,]" id. at 512, and

19 A-3527-13T2
 [i]n the twilight area between practice and
procedure and substantive law, [the Supreme
Court] in the spirit of comity has attempted
to accommodate legitimate expressions of
legislative authority and has shared
responsibility with the Legislature in key
areas of joint concern. See, e.g., N.J.S.A.
2C:43-12 to -22, R. 3:28, and [State v.]
Leonardis, [] 73 N.J. [360,] 374-76 [(1977)]
(illustrating legislative and judicial
cooperation in creation and implementation
of pretrial intervention program –
diversionary program for first-time, non-
violent offenders).

[In re P.L. 2001, Ch. 362, supra, 186 N.J.
at 380 n. 1].

Illustrative of this point is the Court's discussion in

Leonardis, supra, about the overlapping nature of the Pretrial

Intervention Program (PTI). The late Justice Morris Pashman

pointed out that judicial review must always be available to

"check only the most egregious examples of injustice and

unfairness," which might occur in the administration and

implementation of joint judicial-legislative programs involving

the administration of justice, stating

[o]ur experiences with admission procedures
are limited. We intend to continue our
supervisory role over the operation of this
program and the legal determinations of
reviewing courts and local officials . . . .
By their very nature, the guidelines place
primary responsibility for evenhanded
administration of the programs in the hands
of the prosecutors and the program
directors. Judicial review should be
available to check only the most egregious
examples of injustice and unfairness.

20 A-3527-13T2
 [Leonardis, supra, 73 N.J. at 383-84
(citations and internal quotation marks
omitted).]

The authority to alter existing substantive law, court

rules and directives rests firmly with the Legislature and the

Supreme Court. In re State in Interest of A. C., 115 N.J.

Super. 77, 84 (App. Div. 1971). "As an intermediate appellate

tribunal, we adhere to the decision of our Supreme Court in

those cases. Any departure should be undertaken 'by the court

of last resort, and not by the Appellate Division.'" Ibid.

(quoting Casale v. Hous. Auth., City of Newark, 42 N.J. Super.

52, 62 (App. Div. 1956)). Although the Supreme Court has

unfettered authority to issue and modify its directives, we

discern unfairness in this case, especially in light of the

legislature's obvious intention to liberalize admission to Drug

Court based on the success of the program.

Modification of the Manual's guidelines is especially

appropriate in a case such as the one before us that involves a

claim of disparate treatment in sentencing. "'Th[e] Court often

has taken affirmative steps to ensure that sentencing and

disposition procedures, whether authorized by statute or court

rule, will not produce widely disparate results for similarly

situated defendants.'" State v. Palma, 219 N.J. 584, 593 (2014)

(quoting State v. Moran, 202 N.J. 311, 326-27 (2010)). The

21 A-3527-13T2
disparity in this case is highlighted by the fact that now

offenders convicted of second-degree robbery armed with a non-

deadly weapon are permitted to enter Drug Court while Track Two

offenders like defendant, who recently committed a third-degree

drug offense and years earlier had been convicted of a weapons

charge are barred entry. It is simply not fair that defendant's

record would disqualify him under one track but not the other.

There is no valid policy consideration to support that result

and the distinction subverts, rather than supports, the policy

to admit drug-addicted offenders into the program.

Our opinion is supported by the Legislature's decision to

remove the prosecutor's ability to object to a defendant's

admission to Drug Court subject only to proof that his or her

decision was a patent or gross abuse of discretion. By its

action, the Legislature clearly evinced an intention to rely on

a judge's discretion and ability to better determine admission

without continuing the prosecutor's right to veto.

Our decision does not, however, result in defendant's

automatic admission to Drug Court; it only allows his

application to be considered despite his earlier weapons

offense. On remand, the court must now consider relevant

factors specific to defendant, guiding Drug Court admission,

including his dangerousness to the community while on probation,

22 A-3527-13T2
Manual, supra, at 16 (A person is eligible if "no danger to the

community is likely to result from the person being placed on

probation."); whether he is in fact drug dependent; and

defendant's entire criminal history, including his weapons

conviction, along with any other factor impacting this

determination.

Reversed and remanded. We do not retain jurisdiction.

23 A-3527-13T2