SYLLABUS
(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).
State v. Richard Clarke (A-11-09)
State v. William T. Dolan (A-12-09)
Argued February 23, 2010 -- Decided July 21, 2010
WALLACE, J., writing for a unanimous Court.
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 information previously 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.