State of New Jersey v. Jessica S. Matrongolo

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1098-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

APPROVED FOR PUBLICATION

v. July 3, 2024

APPELLATE DIVISION

JESSICA S. MATRONGOLO,

Defendant-Appellant.

__________________________

Argued June 4, 2024 – Decided July 3, 2024

Before Judges Gooden Brown, Natali and Puglisi.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Middlesex

County, Accusation No. 23-08-0676.

Melissa L. Baskind, Assistant Deputy Public

Defender, argued the cause for appellant (Jennifer N.

Sellitti, Public Defender, attorney; Melissa L.

Baskind, of counsel and on the briefs).

David M. Liston, Assistant Prosecutor, argued the

cause for respondent (Yolanda Ciccone, Middlesex

County Prosecutor, attorney; David M. Liston, of

counsel and on the brief).

Kaili E. Matthews, Deputy Attorney General, argued

the cause for amicus curiae Attorney General of New

Jersey (Matthew J. Platkin, Attorney General,

attorney; Kaili E. Matthew, of counsel and on the

brief).

American Civil Liberties Union of New Jersey

Foundation, attorneys for amicus curiae American

Civil Liberties Union of New Jersey (Alexander

Shalom, Dillon Reisman, and Jeanne LoCicero, on the

brief).

The opinion of the court was delivered by

NATALI, J.A.D.

In 2022, an estimated 7.4% of New Jersey adults—approximately

535,280 individuals—met the formal diagnosis criteria for abuse or

dependence on illicit drugs and/or alcohol. 1 In that same year, although 45,914

people were admitted to substance use treatment in New Jersey, the Division

of Mental Health and Addiction Services estimated the unmet demand for

treatment was nearly double that number, or approximately 79,750

individuals.2 And, in 2021, the State recorded a record high 3,144

unintentional drug overdose deaths. 3

1

Dep't of Human Servs., 2022 Inventory & Need Assessment for N.J.

Behavioral Health 6. See also U.S. Census Bureau, Table S0101 Age and Sex

– American Community Survey (2022) (calculating New Jersey's total adult

population at 7,233,502 people).

2

Dep't of Human Servs., 2022 N.J. Drug & Alcohol Use Treatment -

Substance Use Overview Statewide 3, 17.

3

Dep't of Health, 2022 N.J. SUDORS Overdose Mortality Data Explorer.

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2

The substance abuse epidemic occurring in our communities, and the

crime attendant to the disease of addiction led, in part, to the creation of

Recovery Court,4 a judicial program "which combats the hopelessness of

addiction with the hopefulness of treatment." State v. Harris, 466 N.J. Super.

502, 510 (App. Div. 2021). Through "a highly specialized team process within

the existing Superior Court structure," the Recovery Court judge, attorneys,

probation representatives, and treatment professionals "work together to

support and monitor a participant's recovery." Admin. Off. of the Cts., N.J.

Statewide Recovery Court Manual (Jan. 2022) 3-4 (2022 Manual). Our

Supreme Court has repeatedly recognized the positive role of Recovery Court

in improving the lives of its participants and the community. See State v.

Meyer, 192 N.J. 421, 429-30 (2007) and State v. Clarke, 203 N.J. 166, 174

(2010).

This appeal concerns defendant Jessica S. Matrongolo's 5 challenge to a

Law Division order which categorically excluded her from this crucial

resource because she was convicted of a petty disorderly persons (PDP)

offense. The court reasoned that as a matter of law, Recovery Court is only

4

Until 2022, Recovery Court was known as Drug Court. Our opinion uses the

earlier term when discussing authorities which pre-date the name change.

5

As noted infra, Jessica died during the pendency of this appeal. We refer to

her by her first name, intending no disrespect.

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3

available to those convicted of a "crime," which, under our Criminal Code,

disorderly persons (DP) and PDP offenses are not. 6 Finding no support in the

law for the court's decision, we reverse.

I.

Jessica was initially charged with third-degree attempt to defraud the

administration of a drug test, N.J.S.A. 2C:36-10(d), and N.J.S.A. 2C:5-1(a)(1),

and fourth-degree possession of a device to defraud the administration of a

drug test, N.J.S.A. 2C:36-10(e). Pursuant to a plea agreement, Jessica pled

guilty to disorderly conduct, N.J.S.A. 2C:33-2(a)(2)—a PDP offense—in

exchange for dismissal of the criminal charges and with the understanding that

she would apply for Recovery Court. 7

The court initially summarily denied her application without providing

the parties an opportunity to present oral or written arguments. After we

granted leave to appeal and reversed, remanding for the court to "consider

6

Pursuant to N.J.S.A. 2C:1-4(a)(1), a "crime" refers to an offense that carries

a term of at least six months imprisonment, or that is graded first-, second-,

third- or fourth- degree. "Disorderly persons offenses and petty disorderly

persons offenses are petty offenses and are not crimes within the meaning of

the Constitution of this State." N.J.S.A. 2C:1-4(b)(1).

7

The record reflects, on the date of these offenses, Jessica was already

participating in Recovery Court. It is unclear whether she was discharged

from the program due to the filing of the new third- and fourth-degree

offenses.

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[Jessica]'s application anew," it considered her application with the benefit of

written briefing and oral arguments. The court again denied Jessica's

application, this time explaining in an August 9, 2023 written decision that

Recovery Court is not a sentencing option for those convicted of a DP or PDP

offense, because neither are "crimes" as defined in our Criminal Code.

Jessica again sought interlocutory review, which we granted, prompting

the trial judge to submit two written amplifications of his August 9, 2023

decision, dated December 7, 2023 and February 20, 2024, pursuant to Rule

2:5-1(b). In ruling that Recovery Court is only available to those convicted of

a crime, the judge first drew support from a number of excerpts from the 2022

Manual. The first of which, the judge said, "sets out the program's mission:

'to stop the abuse of alcohol and other drugs and related criminal activity.'"

The judge reasoned the Manual's drafters "notably chose the word criminal"

and did so intentionally, as they repeated that term on page eight when they

wrote: "The purpose of [R]ecovery [C]ourt is to divert defendants facing

criminal charges with substance abuse problems into treatment." In the judge's

view, "[t]hese two statements cement[ed] the drafters' intent; namely recovery

courts are for people who commit crimes."

The judge recognized that the 2022 Manual also says that "a defendant is

legally eligible for recovery court if he or she qualifies for sentencing to

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special probation under N.J.S.A. 2C:35-14 (Track One)[,] or regular probation

under N.J.S.A. 2C:45-1 (Track Two)," 8 but reasoned to read this language as

permitting anyone eligible for probation to enter the program is to read the

statement out of context. In the judge's view, this language "simply contrasts

the two paths into the program: one through special probation and one through

regular probation," but "does not displace the program's explicit objectives."

The drafters further conveyed this intent, said the judge, by eliminating the

words "offense" and "offender" from the current version of the Manual

because those terms include DP and PDP offenses.

The judge further reasoned that since PDP offenses are most often heard

in municipal court, permitting PDP offenders to enter Recovery Court would

open the program to municipal court defendants, contrary to the Legislature's

and the Manual's drafters' intent. Finally, relying upon State v. Bishop, 429

N.J. Super. 533 (App. Div. 2013), aff'd, 223 N.J. 290 (2015), the judge

explained without the threat of imprisonment, which is not a sentencing option

for a PDP offense beyond thirty days in jail, a person with a non-criminal

conviction would have no incentive to comply with the conditions of Recovery

Court.

8

As detailed infra, an applicant may be eligible for Recovery Court through

two paths, known as Track One and Track Two, which have separate and

distinct eligibility criteria.

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6

We invited the Attorney General and the American Civil Liberties Union

of New Jersey (ACLU) to participate as amicus curiae, both of whom

submitted briefs contending the court erred in denying Jessica's application to

Recovery Court.

Subsequently, the parties informed us that Jessica tragically passed away

at age thirty-one due to a suspected drug overdose. The State moved to

dismiss the appeal as moot, which Jessica's counsel opposed, contending the

case presented an issue of significant public importance likely to recur. We

denied the motion "without prejudice to consideration of the issue by the

merits panel on plenary review." We therefore begin by considering whether

this appeal should be dismissed as moot, a question we answer in the negative.

II.

When a judicial decision "can have no practical effect on the existing

controversy," an issue is rendered moot. State v. Nieves, 476 N.J. Super. 609,

657 (App. Div. 2023) (quoting Redd v. Bowman, 223 N.J. 87, 104 (2015)). As

our Supreme Court explained, "the New Jersey Constitution does not confine

the exercise of the judicial power to actual cases and controversies," so

mootness does not necessarily end a case. State v. Gartland, 149 N.J. 456, 464

(1997). Generally, however, we "will not render advisory opinions or exercise

[our] jurisdiction in the abstract." Ibid.

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Although "[t]he power to entertain a criminal appeal even after death

should be sparingly exercised," in certain circumstances, we nevertheless

adjudicate such a case. Id. at 465. "Our courts will entertain a case that has

become moot when the issue is of significant public importance and is likely to

recur." Id. at 464; see also State v. Cassidy, 235 N.J. 482, 491 (2018)

(declining to dismiss as moot appeal involving deceased defendant because

case implicated reliability and admissibility of over 20,000 Alcotest breath

samples).

We are convinced the issue presented in this appeal holds "significant

public importance and is likely to recur." Gartland, 149 N.J. at 464. The

matter is one of first impression with a significant impact on applicants to

Recovery Court and judges who preside over those matters. As noted,

hundreds of thousands of New Jersey citizens suffer with substance abuse or

dependence, many of whom are involved in the criminal legal system, and

overdose deaths reached a record high in 2021. At the same time, and as the

ACLU has ably argued in its merits brief, access to potentially life-saving

treatment is severely limited. The question of whether a person convicted of a

DP or PDP offense is eligible to seek that treatment through Recovery Court is

one with a significant effect far beyond Jessica. Further, because the court's

decision was based not on Jessica's individual circumstances but on the

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classification of her conviction, it is likely to recur whenever an individual

with only a DP or PDP conviction seeks to enter Recovery Court. Therefore,

we conclude this case is justiciable and address the merits.

III.

Jessica argues the court erred in concluding she was ineligible for

Recovery Court solely based on her PDP conviction. She maintains the court's

decision was not supported by the legal eligibility provisions in the 2022

Manual nor the trend toward expanded access to Recovery Court. The

Attorney General as amicus agrees, noting those convicted of DP and PDP

offenses in Superior Court are eligible for probation under N.J.S.A. 2C:45 -1

and therefore for Recovery Court under a proper reading of the 2022 Manual

and relevant case law. Amicus ACLU concurs but emphasizes Recovery Court

and similar programs may redirect resources away from quality community -

based treatment untethered to the criminal legal system.

Jessica and both amici also maintain the court incorrectly concluded

PDP offenders lack an incentive to complete Recovery Court because they do

not face a lengthy prison sentence. Jessica argues an alternative sentence is

not required under the 2022 Manual, and the court "fails to appreciate" the

numerous other motivations for Recovery Court participants, such as the

genuine desire to overcome substance abuse, the opportunity to expunge one's

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criminal records, or the structure and support provided by the program. The

Attorney General points out the court's reliance on Bishop was misplaced, as

that case considered Track One Recovery Court applicants "who, by definition,

face an alternative prison sentence." The ACLU adds no empirical studies

reflect the threat of incarceration has any effect on drug court participation or

success.

In requesting we affirm, the Prosecutor argues the court correctly found

Recovery Court was not intended for PDP offenders despite conceding "neither

the [2022 Manual] nor the governing statute, N.J.S.A. 2C:35-14, expressly

disqualifies from [R]ecovery [C]ourt a defendant who has only been found

guilty of a [PDP] offense." It agrees with the court the "carrot-and-stick

approach" used in Recovery Court would not function as effectively without

the "stick" of an alternative prison sentence. Further, the Prosecutor contends

expanding Recovery Court to DP and PDP offenses would "open the

proverbial flood gates" to municipal court defendants and "far more

participants than recovery courts were created to handle." For the following

reasons, we disagree with each of the Prosecutor's points and reverse.

We briefly address the standard governing our review. Because the

appeal asks us to construe the Recovery Court eligibility criteria as set forth in

the 2022 Manual, a question of law, our review is de novo. State v. Figaro,

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462 N.J. Super. 564, 571 (App. Div. 2020); State v. Amer, 471 N.J. Super.

331, 355 (App. Div. 2022). Accordingly, we give "no deference to the trial

court's 'interpretation of the law and the legal consequences that flow from

established facts.'" State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014)

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

As noted, we find no support for the judge's decision in the historical

development of Recovery Court as conveyed in statute, the Manual, and court

decisions interpreting both. As a full understanding of the development and

evolution of Recovery Court informs our decision, we detail that history.

Recovery Court is not a creature of the Legislature, but of the judiciary,

and was developed in accordance with the Court's "exclusive authority under

the New Jersey Constitution to administer the courts" and "execute[] its

policies through the Administrative Office of the Courts" (AOC). Meyer, 192

N.J. at 430 (citing N.J. Const. art. VI, § 2, ¶ 3 and In re P.L. 2001, Chapter

362, 186 N.J. 368, 381-82 (2006)). While Recovery Court is a sentencing

option, and thus rooted in legislative enactment, it is "a subpart of the criminal

part of the Law Division," and its eligibility criteria are a matter of judicial

policy expressed through AOC Directive and the Manual. Meyer, 192 N.J. at

430-31; see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.

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1:1-1 (2024) (discussing the Court's authority over practice and procedure of

the courts).

In the mid-1990s, the AOC developed the first Drug Court pilot program

to be administered through probation in certain counties "on an experimental

basis." Meyer, 192 N.J. at 430. The program was intended to create a better

way of dealing with the rising number of prison-bound drug offenders than the

traditional approach of "incarceration and more incarceration," which "was not

working." 2022 Manual at 3-4. People of color were "hit the hardest" as "a

disproportionate percentage of inmates in the New Jersey state prison system

have been and are minorities." Id. at 4. In addition to the "skyrocket[ing]"

cost of incarcerating drug offenders, the "devast[ing]" effect of drug abuse and

related crime on families and communities was evident in "drug addicted

newborns, children in foster care, violence in neighborhoods, unsafe streets

and unpaid child support." Id. at 3.

The pilot program proved beneficial, and in May 2000, the Conference

of Criminal Presiding Judges recommended its adoption as a "best practice"

within the Criminal Division statewide. Admin. Off. of the Cts., Manual for

Operation of Adult Drug Courts in N.J. (July 22, 2002) 6 (2002 Manual).

Subsequently, the Judicial Council adopted Drug Courts as best practices and

"called for a comprehensive statewide proposal," which was drafted in

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December 2000 and implemented through legislation enacted in September

2001. Ibid. By 2004, Drug Courts were operating in every vicinage. Id. at 8.

Initially, the pilot program's target population was "nonviolent substance

abusing defendants." Id. at 5. To ensure "equal access" to the program,

however, "the Presiding Judges recommended that the [D]rug [C]ourt caseload

consist of prison-bound and other cases." Id. at 6. As the "primary focus of

the funding" for Drug Court was to provide "an alternative to prison," the 2002

Manual contemplated caseloads would consist of 73% prison-bound cases and

27% non-prison-bound cases. Id. at 8.

In accordance with those goals, the 2002 Manual set forth eligibility

criteria for two tracks for admission into the program. See Meyer, 192 N.J. at

432-33 (discussing the "two tracks" to Drug Court; one through special

probation and the other through regular probation). Consistent with their

present eligibility criteria, Track One was available to defendants "subject to a

presumption of incarceration" who were eligible for "special probation" under

N.J.S.A. 2C:35-14, and Track Two was available to defendants who were not

prison-bound, but faced a sentence to regular probation or fewer than 365 days

in a county jail. 2002 Manual at 9-10. Those who pled guilty to a probation

violation or were terminated from the Pretrial Intervention program were also

eligible for Track Two. Id. at 9. The 2002 Manual permitted application to

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Drug Court "at any time following an arrest and up until plea cutoff," but

encouraged intervention as early as possible in the process. Id. at 19.

Pursuant to the 2002 Manual, in order to be sentenced to Drug Court on

Track Two,9 an applicant must have met the following criteria: (1) a

diagnostic assessment determined the applicant had "a drug or alcohol

dependence"; (2) the program would be "likely to benefit" the applicant; (3)

the applicant had no pending charges or previous conviction or adjudication

for murder, aggravated manslaughter, manslaughter, robbery, kidnapping,

aggravated assault, aggravated sexual assault, or sexual assault; (4) the charges

included no first- or second-degree crime; (5) the applicant did not "possess a

firearm" during the underlying crime or any prior offense; and (6) the

applicant would not pose a danger to the community while serving a term of

Drug Court. Id. at 16-17. These requirements largely tracked those found in

the special probation statute at the time. See N.J.S.A. 2C:35-14 (2001). Aside

from the enumerated disqualifying crimes, eligibility was not limited by the

nature or classification of the charges.

After the AOC released the 2002 Manual, it did not amend the Manual

until 2019. In the intervening years, the Legislature amended N.J.S.A. 2C:35 -

9

Because it is undisputed Jessica was not subject to a presumption of

incarceration and thus ineligible as a Track One participant, we focus our

discussion exclusively on Track Two eligibility.

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14 four times, with two of those expanding the class of those eligible for

special probation and thus Recovery Court. See L. 2008, c. 15 (removing

automatic exclusion for those with multiple prior third-degree convictions); L.

2012, c. 23 (removing robbery and burglary from list of disqualifying offenses

and limiting exclusion based on prior convictions to first-degree offenses).

The 2019 Manual formally identified the two paths as Track One and

Track Two and amended the eligibility criteria such that they were far less

restrictive. Admin. Off. of the Cts., N.J. Statewide Drug Court Manual (June

2019) 9 (2019 Manual). Specifically, it removed the six requirements

enumerated in the 2002 Manual and instead provided a defendant is "legally

eligible for [D]rug [C]ourt if he or she qualifies for sentencing to special

probation under N.J.S.A. 2C:35-14 (Track One) or regular probation under

N.J.S.A.2C:45-1 (Track Two)." Ibid. It also clarified a "defendant who

initially is not eligible for [D]rug [C]ourt could become eligible by way of a

plea agreement that dismisses the non-[D]rug [C]ourt eligible charges" or

"upon acquittal of a charge that initially rendered the applicant ineligible."

Ibid. Further, prior entry to the program would no longer result in automatic

rejection. Id. at 10. Again, the criteria made no mention of ineligibility based

on a defendant's conviction only for a DP or PDP offense.

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The AOC again amended the Manual in 2020, reiterating Track One

applied to special probation candidates, while Track Two applied to regular

probation candidates, but making no substantive change to the eligibility

requirements. Admin. Off. of the Cts., N.J. Statewide Drug Court Manual

(Dec. 2020) 9 (2020 Manual). In 2022, the AOC published the current version

of the Manual, which changed the name of the program to Recovery Court but

again made no change to the legal eligibility provisions of the 2019 and 2020

Manuals. 2022 Manual at 9.

While the Manual defines eligibility for regular probation by reference

to N.J.S.A. 2C:45-1, that statute does not detail which defendants may be

sentenced to probation but rather sets forth permissible conditions of

probation. In doing so, it uses the term "offense" rather than crime, and

specifically carves out DP offenses when discussing split sentences to

probation and incarceration. N.J.S.A. 2C:45-1. Other provisions of our

Criminal Code make clear defendants convicted of DP or PDP offenses

generally may be sentenced to probation. See N.J.S.A. 2C:43-2(b)(2), (g)

(permitting court to sentence "a person who has been convicted of an offense"

to probation, except certain sex offenses). Further, the special probation

statute expressly provides "[n]othing in this section shall be construed to

prohibit a person who is eligible for probation in accordance with N.J.S.A.

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2C:45-1 due to a conviction for an offense which is not subject to a

presumption of incarceration . . . from applying for treatment for substance use

disorder as a condition of probation." N.J.S.A. 2C:35-14(a).

Our case law similarly demonstrates a repeated intent to expand access

to Recovery Court. In Meyer, the Supreme Court rejected the State's argument

that only those eligible for special probation under N.J.S.A. 2C:35 -14 could

enter Recovery Court. 192 N.J. at 423-24. In Maurer, we modified the

eligibility criteria for Track Two applicants in the 2002 Manual to conform to

the 2012 amendment to N.J.S.A. 2C:35-14 which expanded access for Track

One applicants. 438 N.J. Super. at 417-18. In Figaro, we concluded the

statutory criteria and exclusions for Track One applicants did not govern Track

Two applicants, but could be considered in the court's discretion. 462 N.J.

Super. at 578-79. And in Harris, we noted an interpretation of the 2012

amendment to the special probation statute "that would have the practical

effect of restricting access to Drug Court contravenes the legislative purpose,"

the "overarching goal" of which was "to enlarge, not reduce, the pool of

defendants who could participate in Drug Court." 466 N.J. Super. at 545.

We are satisfied the foregoing reveals a lack of support for the court's

conclusion a defendant is ineligible for Recovery Court if the underlying

conviction is for a DP or PDP offense. The eligibility requirements for the two

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tracks are clear and simple: Track One applies to those eligible for special

probation and Track Two applies to those eligible for regular probation. 2022

Manual at 9. As we recently explained:

Every candidate falls under one of two distinct and

mutually exclusive tracks. To determine legal

eligibility, the trial court must first determine whether

the defendant is a Track One or Track Two candidate.

A defendant is a Track One candidate if, and only if,

he or she is presently subject to the presumption of

imprisonment in N.J.S.A. 2C:44-1(d) or to a

mandatory term of parole ineligibility. If the

defendant is not presently subject to the presumption

of imprisonment as defined in N.J.S.A. 2C:44-1(d) or

to a mandatory term of parole ineligibility, he or she is

a Track Two candidate.

[Harris, 466 N.J. Super. at 551.]

The Prosecutor points to no law, decision, or directive, nor has our

independent research uncovered any, that adds to the Track Two criteria the

condition that the person be sentenced for a "crime."

Further, contrary to the court's decision, a plain reading of the legal

eligibility provision of the Manual demonstrates it was not "simply

contrast[ing] the two paths into the program." Rather, the Manual's drafters

clearly titled the section "Legal Eligibility" and declined to condition

eligibility on any other requirements. The fact that the program originated

from a desire to reduce the number of prison-bound drug offenders does not

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negate the clearly defined legal eligibility requirements for the two tracks,

eligibility for special or regular probation, which have remained consistent.

As noted, since its inception, Recovery Court has always encompassed both

prison-bound and non-prison-bound defendants.

The court also placed undue emphasis on the conviction for which the

person is being sentenced. As the Manual makes clear, early intervention is

encouraged and the court may admit a person to Recovery Court without a

guilty plea in place. Here, Jessica was charged with third- and fourth-degree

crimes and she could have applied for Recovery Court based on these charges.

As the Manual makes clear, a defendant may plea bargain to become eligible

for Recovery Court, conveying an intent to permit more—not fewer—

applicants. Pursuant to a plea agreement, Jessica reduced her charge to a PDP

offense. It is inconsistent with the spirit of Recovery Court that someone who

is eligible for Track Two based on their initial charges would become

ineligible because the State agrees to accept a plea to a lesser charge.

The court's reliance on the removal of the term "offender" in

amendments to the Manual is also misplaced. The drafters replaced "offender"

with "defendant," a more neutral term which clearly describes anyone charged

with a criminal or non-criminal offense. We fundamentally disagree with the

conclusion the drafters sought to convey an intent to exclude DP and PDP

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offenders based on such a subtle change in the face of clearly expressed

eligibility criteria which included no such provision.

We are similarly unpersuaded by the court's and the Prosecutor's

concerns that permitting DP and PDP offenders to enter Recovery Court would

unduly expand eligibility to municipal court defendants. Jessica was within

the jurisdiction of the Superior Court and was not being sentenced in

municipal court. Thus, whether she, or anyone else, could enter Recovery

Court in municipal court was plainly not at issue, and should not have

impaired the court's analysis.

Finally, we reject the court's conclusion that defendants not subject to

incarceration would have no incentive to succeed in Recovery Court. Bishop,

upon which it relied, made clear that it "d[id] not deal with those admitted to

Drug Court under the regular probation track" but rather "only with offenders

sentenced to special probation under N.J.S.A. 2C:35-14, whose probation is

subsequently permanently revoked." 429 N.J. Super. at 540. To accept the

court's rationale would essentially negate Track Two eligibility and the

historical composition of Recovery Court as both prison-bound and non-

prison-bound defendants, instead limiting the program to those facing a

presumption of incarceration. That is contrary to the explicit eligibility

criteria, the case law, and the spirit of Recovery Court.

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Not only was Jessica not a Track One applicant, but the court also failed

to consider the various behavioral modification techniques and rewards for

progress that Recovery Court uses to encourage compliance. 2022 Manual at

25-26 ("The most effective and successful drug courts utilize a varied and

creative range of intermediate-magnitude responses to participants' behavior

that can be adjusted up or down in intensity in response to continued violations

or successes. Sanctions and rewards tend to be least effective at the lowest and

highest levels."); see also Admin. Off. of the Cts., Admin. Directive #03-20,

Drug Court – State of N.J. Adult Drug Court Program – Participant Incentive

& Sanction Charts (Jan. 3, 2020) (providing matrix for identifying level of

behavior and necessary response, such as increasing or decreasing required

contacts with probation or community service hours). While sanctions were

initially stressed to address violations, the approach has changed over the years

to encourage positive behavior as opposed to punishing negative behavior. As

Jessica explained in her merits brief, people entering Recovery Court may

have various reasons for doing so, including the possibility of expungement or

a true desire to overcome substance abuse.

Jessica's untimely death highlights the pressing need for life-saving

resources to combat substance abuse in New Jersey. Our opinion clarifies

individuals convicted of DP and PDP offenses in Superior Court are not

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categorically barred from seeking those resources. The court erred in holding

otherwise.

Reversed.

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