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(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 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)
2
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.
3
SUPREME COURT OF NEW JERSEY
A-11/12 September Term 2009
Plaintiff-Appellant,
v.
RICHARD CLARKE,
Defendant-Respondent.
Plaintiff-Appellant,
v.
WILLIAM T. DOLAN,
Defendant-Respondent.
purpose of this opinion and address whether it was error for the
to appeal in each case and summarily remanded for the Drug Court
further proceedings.
2
I.
A.
State v. Clarke
a-half period, but ended his drug abuse without the assistance
been married for six months, his wife knew nothing of his
addiction.
3
begin a program of recovery. In a Level II.5 program, Mr.
not match the facts of his life and he seriously questioned the
4
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.
Division granted the motion and summarily remanded for the Drug
5
B.
State v. Dolan
2C:29-2(a).
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
Court judge objecting to defendant’s admission into the Drug
sentence.
under the second track for entry into Drug Court. Dolan argued
the evaluator noted that Dolan revealed that he had used cocaine
and heroin every day during the thirty days preceding his
7
Clinically Managed High-Intensity Residential Treatment (long-
next day the Drug Court judge rendered his written decision
the Drug Court program, the judge found that the prosecutor’s
found that Dolan was ineligible under the second track because a
8
also granted the Attorney General’s motion to appear as amicus
curiae.
II.
are contested and such hearings are consistent with the Drug
Court Manual.2
contrary to the Drug Court Manual and due process of law, he was
2
Administrative Office of the Courts, Manual for Operation of
Adult Drug Courts in New Jersey (July 2002), available at
http://www.judiciary.state.nj.us/directive/dctman.pdf. (Drug
Court Manual or Manual).
9
not given notice and an opportunity to challenge the findings of
Dolan adds that the Drug Court judge failed to apply the
that the practices and procedures set forth in the Drug Court
10
a Drug Court judge make findings of whether the substance abuse
standard for admission under the second track of the Drug Court
recommended changes.
III.
A.
emphasized that the team approach in the Drug Court features the
430, and the practices and procedures of that court are set
forth in the Drug Court Manual. Id. at 431. The Drug Court
11
Court. Drug Court Manual, supra, at 10. The applicant must
Ibid.
prison term, and the judge must find that the applicant
requirements for admission under track one, the judge will then
does not consent, the trial judge may only admit the applicant
under track one “if the judge finds a ‘gross and patent abuse of
3
However, a person convicted of a first-degree crime or, a
second-degree crime enumerated in N.J.S.A. 2C:43-7.2(d), is not
eligible for special probation. N.J.S.A. 2C:35-14(b)(1)-(2).
12
The second track permits applicants to be admitted into
from admission into Drug Court under track two. Ibid. (citing
13
provisions of the Code of Criminal Justice is appropriate. Id.
omitted).
must set forth in writing his or her findings and reasons for
14
the prosecutor’s position under the second track’s analysis is
Id. at 18. As noted above, under the first track, the judge may
B.
15
include witnesses and credibility assessments. We reach a
different conclusion.
16
entitled to full and fair consideration of his application.”
and make a record. Further, the judge may receive comments from
17
informal sharing of information. Manual, supra, at 28. In our
members.
IV.
A.
that the Drug Court judge failed to apply the correct standards
18
prosecutor objected to defendant’s admission to the Drug Court
and argued that the judge could only admit each defendant if he
probation” under track one did not apply because both defendants
was eligible for admission into the Drug Court program under the
first track criteria. Therefore, there was no need for the Drug
clear from the record whether or not the trial court applied
would be error.
B.
treatment and did not still have a drug dependency at the time
19
38. The judge also noted that during the substance abuse
20
a continuous or repetitive basis.” N.J.S.A. 2C:35-2 (emphasis
1999, c. 376, § 1.
The statement makes clear that the Committee intended that the
21
Unfortunately, the Drug Court judge relied on Soricelli,
We note also that the judge did not address the substance
22
To be sure, the judge found three aggravating factors --
(1) the risk defendant will commit another offense, (2) the
C.
23
Dolan was interviewed on February 4, 2009, and the report was
However, it does not appear that the Drug Court judge was
appeal.
deny admission into the Drug Court program. The substance abuse
24
not applied in the judge’s consideration of Dolan’s eligibility
V.
herein.
25
SUPREME COURT OF NEW JERSEY
Plaintiff-Appellant,
v.
RICHARD CLARKE,
Defendant-Respondent.
_____________________________________
Plaintiff-Appellant,
v.
WILLIAM T. DOLAN,
Defendant-Respondent.
CHECKLIST AFFIRM IN
PART/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
7
2