State of New Jersey v. Ahjhir K. Jones

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1648-23

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

March 20, 2025

Plaintiff-Appellant, APPELLATE DIVISION

v.

AHJHIR K. JONES, a/k/a

AHJHIO JONES,

Defendant-Respondent.

_________________________

Argued December 5, 2024 – Decided March 20, 2025

Before Judges Mawla, Natali, and Vinci.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Morris County,

Indictment No. 22-06-0343.

Matthew W. Kelly, Special Deputy Attorney General,

argued the cause for appellant (Robert J. Carroll,

Morris County Prosecutor, attorney; Matthew W.

Kelly, of counsel and on the briefs).

Scott M. Welfel, Assistant Deputy Public Defender,

argued the cause for respondent (Jennifer N. Sellitti,

Public Defender, attorney; Scott M. Welfel, of counsel

and on the brief).

The opinion of the court was delivered by

NATALI, J.A.D.

We granted leave to appeal to again resolve an issue of statutory

interpretation involving a provision of our Criminal Code, specifically

N.J.S.A. 2C:35-14, which addresses the admission criteria to Recovery Court.

Judge Robert M. Hanna rejected the State's proposed construction that

defendant was legally ineligible for admission into Recovery Court under

N.J.S.A. 2C:35-14(a)(5), which bars applicants if they "possess[ed] a firearm

at the time of the present offense . . . [or] at the time of any pending criminal

charge." In rejecting the State's interpretation of the second clause of the

statute, the judge concluded the phrase "at the time of any pending charge"

bars only applicants: (1) charged with committing a firearms offense and, (2)

whose firearms charges remain pending at the time of the Recovery Court

application. As defendant's gun charges, while at one time "pending," had

been resolved when he applied to Recovery Court for a different offense not

involving a firearm, the judge concluded he was legally eligible.

Before us, the State reprises its arguments raised before the judge,

specifically contending:

I. THE [TRIAL] COURT ERRED IN RULING THE

DEFENDANT ELIGIBLE FOR RECOVERY COURT

SPECIAL PROBATION AS HE IS BARRED FROM

ENTRY UNDER N.J.S.A. 2C:35-14[(a)](5) AND TO

PERMIT ADMITTANCE WILL LEAD TO THE

IMPOSITION OF AN ILLEGAL SENTENCE.

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a. DEFENDANT IS A TRACK ONE

RECOVERY COURT CANDIDATE.

b. N.J.S.A. 2C:35-14[(a)](5) SHOULD BE

CONSTRUED AS A NONDISCRETIONARY

ELIGIBILITY FACTOR.

c. THE [TRIAL] COURT'S

DETERMINATION THAT THE DEFENDANT

IS ELIGIBLE, DUE TO HIS SATISFACTION

OF FACTOR [(a)](5), WOULD RENDER AN

ILLEGAL SENTENCE.

i. THE PLAIN LANGUAGE AND

LEGISLATIVE INTENT OF FACTOR

[(a)](5) IS CLEAR AND THE

DEFENDANT IS LEGALLY

INELIGIBLE FOR RECOVERY COURT.

ii. DEFENDANT'S CASE IS

DISTINGUISHABLE FROM STATE V.

ANCRUM, [449] N.J. SUPER. 526 (APP.

DIV. 2017).

We are unpersuaded by the State's arguments that defendant was an ineligible

Track One Recovery Court candidate and affirm substantially for the reasons

expressed by Judge Hanna in his cogent written decision.

I.

In August 2021, Morristown police responded to a call regarding a

potential burglary at a car dealership and discovered vehicles and

miscellaneous personal property had been stolen. The police collected a

fingerprint from the exterior of a window the suspects used to enter the

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dealership building, and a subsequent forensic examination matched the

fingerprint to defendant.

Less than two weeks later, Newark police located one of the stolen

vehicles and found defendant sleeping in it and arrested him. When an officer

asked defendant if he knew why he was being arrested, defendant responded

"because he was in a stolen car." Defendant was charged in Essex County

with third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (first Essex

County case).

After learning defendant was in custody for the Newark arrest, the

Morris County Prosecutor's Office (MCPO) requested he be transferred to

Morris County for prosecution. They also charged him with second-degree

conspiracy to commit theft, N.J.S.A. 2C:5-2(a)(1) and 2C:20-3(a); third-degree

theft, N.J.S.A. 2C:20-3(a); third-degree conspiracy to commit burglary,

N.J.S.A. 2C:5-2(a)(1) and 2C:18-2(a)(1); third-degree burglary, N.J.S.A.

2C:18-2(a)(1); third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); and

fourth-degree unlawful taking of means of conveyance, N.J.S.A. 2C:20-10(d),

related to the dealership robbery (Morris County case). A Morris County

grand jury returned a seven-count indictment encompassing both the first

Essex County and Morris County cases that charged defendant with the

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aforementioned offenses, as well as third-degree receiving stolen property,

N.J.S.A. 2C:20-7(a).

Defendant was again arrested in Newark in July 2022. When

approached by the police, defendant attempted to flee. While doing so, he

threw his bag over a fence and a loaded handgun fell out of the bag and was

recovered by the police. Defendant was subsequently charged in Essex County

with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1);

third-degree possession a weapon without a serial number, N.J.S.A. 2C:39-

3(n); fourth-degree possession of a handgun by a minor, N.J.S.A. 2C:58-6.1;

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and fourth-degree

obstruction, N.J.S.A. 2C:29-1(a) (second Essex County case).

On January 30, 2023, defendant pled guilty in the second Essex County

case pursuant to a negotiated plea agreement to second-degree unlawful

possession of a handgun; third-degree possession of a firearm without a serial

number; and fourth-degree resisting arrest. He was subsequently sentenced to

three years of probation and community service with a Graves Act waiver. 1

On April 12, 2023, after he resolved the second Essex County case,

defendant sought admission to Recovery Court with respect to his charges in

the Morris County case. The State objected and contended defendant was

1

N.J.S.A. 2C:43-6(c) and 2C:43-6.2.

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legally ineligible to enter Recovery Court because he: (1) was a danger to the

community contrary to N.J.S.A. 2C:35-14(a)(9), who could not be adequately

supervised; (2) demonstrated "no nexus between [his] criminal offenses and an

addiction," such that Recovery Court would not "reduce the likelihood that

[he] will thereafter commit another offense"; and (3) was subject to a custodial

sentence, which the State contended was more appropriate under the

circumstances. Despite the State's objection, after submitting to mandated

substance abuse evaluations, defendant was deemed clinically eligible with a

recommendation of intensive outpatient treatment.

Although not discussed in its written objection, during oral arguments,

the State also maintained defendant was legally ineligible for Recovery Court

under subsection (a)(5) because the second Essex County case involved the

possession of a firearm. The judge found defendant clinically eligible for

Recovery Court based upon his evaluation results, but reserved decision

regarding his legal eligibility and granted the parties an opportunity for

additional briefing as to the applicability of subsection (a)(5).

The judge heard additional oral arguments as to defendant's legal

eligibility under subsection (a)(5) during which the State again contended

defendant was ineligible because he "possessed a firearm while any criminal

charge was pending." It specifically maintained subsection (a)(5) "is not

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concerned whether the Essex charge is still pending, but rather whether the

defendant possessed a firearm during the pendency of any criminal charge, to

include the Morris County burglary and theft charges." Defendant maintained

he was eligible because the second Essex County case was resolved and thus

not a pending legal matter.

On December 11, 2023, the judge issued a written order and opinion

rejecting the State's arguments and concluded defendant was both clinically

and legally eligible for Recovery Court under N.J.S.A. 2C:35-14. He further

explained because defendant's second-degree charge rendered him subject to

the presumption of incarceration, he was properly characterized as a Track

One candidate who was required to satisfy all nine eligibility criteria set forth

in N.J.S.A. 2C:35-14(a).2 As pertinent here, the judge noted the parties

disputed the proper interpretation of only the second clause of subsection

(a)(5), whether defendant "possess[ed] a firearm at the time of any pending

criminal charge."

The judge explained, under subsection (a)(5), "the current Morris

County charges do not involve a firearm[,] and th[e] Essex County charges

2

Neither party disputes the fact defendant is a Track One candidate for

Recovery Court as the Morris County charges carry a presumption of

incarceration. We detail and discuss the Track One eligibility requirements

below.

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involving a firearm are no longer pending, having been disposed by guilty plea

and a sentence of non-custodial probation." 3 In reaching this conclusion, the

judge relied upon Ancrum for the proposition that the second clause of

subsection (a)(5) does not bar an applicant from Recovery Court whose

charges, like defendant's, involve a firearm when those charges were "disposed

(whether by guilty plea or otherwise)." Specifically, the judge found "the first

clause of the statute plainly and exclusively refers to the present Morris

County charges, and that the second clause does not, instead referring to other

pending charges that somehow involve possession of a firearm." The judge

further concluded, "once any such pending charge involving a firearm is

disposed . . . , it is no longer pending and hence will not bar admission into

Recovery Court."

According to the judge, the State's construction of the statute would

render the first clause of subsection (a)(5) surplusage. That is, "[t]he State's

construction of the statute renders the first clause of N.J.S.A. 2C:35 -14[(a)](5)

unnecessary, as it lumps the 'present offense' into the second clause's 'any

3

The judge also concluded, with respect to N.J.S.A. 2C:35-14(a)(9),

"[d]efendant would not pose a danger to the community if he were to be

sentenced into Recovery Court," and as to N.J.S.A. 2C:35-14(a)(2) and (3),

defendant's offense was motivated by his substance use disorder. The State

does not challenge those findings before us.

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pending criminal charge,' ignoring that the statute has two separate, distinct

clauses with different meanings and purposes."

The judge explained the State's interpretation "would disqualify a Track

One candidate even where the firearms charge was later dismissed or

amended/downgraded to a non-firearms offense" and was "contrary to the

expansion of Recovery Court eligibility since the inception of the program

more than two decades ago." He also noted the offenses to which defendant

pled guilty in the second Essex County case were not among those listed in

N.J.S.A. 2C:35-14(a)(7) or -14(b) as disqualifying convictions, and the court

was free to consider the conduct underlying such firearms offenses as part of

its community safety assessment.

The judge explained "[p]ractical considerations" reinforced his

interpretation of the statute. That is, the majority of "guilty pleas to a firearms

offense will result in a prison sentence, which removes Recovery Court as a

possible sentence for other pending charges." Even in those instances where,

as here, "a Graves Act charge results in a non-custodial probation sentence,"

the court would "be able to consider the firearms offense conduct in its

assessment of 'danger to the community' under N.J.S.A. 2C:35-14[(a)](9) and

the appropriateness of a Recovery Court sentence." "In sum, since [d]efendant

no longer has a pending charge involving a firearm given the [second Essex

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County case] dispositions, and since the present Morris County charges do not

involve a firearm, [d]efendant meets the requirements of N.J.S.A. 2C:35-

14[(a)](5) and the State's objection is overruled."

II.

As this appeal involves an issue of statutory construction, a question of

law, our review is de novo. State v. Figaro, 462 N.J. Super. 564, 571 (App.

Div. 2020); State v. Amer, 471 N.J. Super. 331, 355 (App. Div. 2022). We

accordingly 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)).

The State contends the judge erred in admitting defendant to Recovery

Court because he does not meet the requirements of N.J.S.A. 2C:35-14(a)(5),

and that his admission will lead to the imposition of an illegal sentence. 4

4

The State further maintains subsection (a)(5) should be construed as a non -

discretionary eligibility factor. Relying upon State v. Hyland, 238 N.J. 135

(2019), it asserts subsection (a)(5) requires objective determinations and does

not require fact-finding or any exercise of discretion, unlike other provisions

of N.J.S.A. 2C:35-14.

In Hyland, 238 N.J. at 147-48, our Supreme Court explained "[c]ertain

eligibility criteria, such as N.J.S.A. 2C:35-14(a)(4) and (9), are discretionary

determinations requiring the sentencing judge to engage in fact-finding," while

others, including sections (a)(1), (6), (7), and (8), "require objective, per se

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Specifically, the State posits under an objective determination, the plain

language and legislative intent of subsection (a)(5) are clear, and both

demonstrate defendant is legally ineligible for Recovery Court. It contends the

language used in the second clause of subsection (a)(5), that the defendant "did

not possess a firearm at the time of any pending criminal charge," N.J.S.A.

2C:35-14(a)(5), refers not to a "pending charge" for a firearms offense, but

instead to the act of possessing a firearm while the defendant has pending

charges for any offense, including the "present" offense for which the

defendant seeks admission to Recovery Court. The State maintains the fact

that the second Essex County case was resolved by a plea and is no longer

pending is not dispositive to a proper analysis of subsection (a)(5) because

defendant possessed a weapon while the Morris County case was pending.

The State next argues the court's interpretation of subsection (a)(5) is

also flawed because it fosters an absurd result in situations where a defendant

would be denied admission to Recovery Court because their charges are

pending—and thus presumed innocent—but would permit potential entry to a

legal determinations." The State may appeal only "a plainly mistaken, non-

discretionary, non-factual finding under N.J.S.A. 2C:35-14(a)." Id. at 139.

Because it is undisputed defendant possessed a firearm in the second Essex

County case, the sole issue before the court is a legal one – the proper

interpretation of subsection (a)(5) – rendering the State's appeal proper under

Hyland.

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defendant after a conviction. It contends such a result contradicts the clear,

plain language of subsection (a)(5). In response to the court's concern that,

under the State's interpretation of subsection (a)(5), applicants would be barred

from Recovery Court even if their case is dismissed, downgraded, or otherwise

disposed, it maintains an acquittal or dismissal would establish the applicant

did not possess a firearm "at the time of any pending criminal charge,"

N.J.S.A. 2C:35-14(a)(5), and therefore would not preclude admission to

Recovery Court.

The State also argues the judge erred in relying on Ancrum because that

case involved N.J.S.A. 2C:35-14(a)(7), which bars entry to Recovery Court

where the applicant has a conviction or pending charge for certain enumerated

offenses. According to the State, subsection (a)(7) "does not apply to the

conviction for which the offender is currently being sentenced," unlike

subsection (a)(5), which "is solely concerned with the act of possessing a

firearm while any criminal case is pending."

We begin by addressing the well-settled principles of statutory

construction that guide our analysis. First and foremost, we must ensure our

interpretation is consistent with the intent of the Legislature, which remains

the "paramount goal when interpreting a statute and, generally, the best

indicator of that intent is the statutory language." DiProspero v. Penn, 183

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N.J. 477, 492 (2005). "If the plain language leads to a clear and unambiguous

result, then [the] interpretive process is over." Richardson v. Bd. of Trs.,

Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007) (citing DiProspero, 183

N.J. at 492). "If, however, a literal interpretation of a provision would lead to

an absurd result or would be inconsistent with the statute's overall purpose,

'that interpretation should be rejected' and 'the spirit of the law should

control.'" Pfannenstein v. Surrey, 475 N.J. Super. 83, 95 (App. Div. 2023)

(quoting Hubbard v. Reed, 168 N.J. 387, 392-93 (2001)).

We must also place any specific word or provision in context with other

"related provisions so as to give sense to the legislation as a whole." Ibid.

(quoting Ryan v. Renny, 203 N.J. 37, 54 (2023)). We therefore read

subsection (a)(5) not in isolation but in context with other provisions of

N.J.S.A. 2C:35-14. Further, we "presume that every word in [the] statute has

meaning and is not mere surplusage." M.R. v. N.J. Dep't of Corrs., 478 N.J.

Super. 377, 387 (App. Div. 2024) (alteration in original) (quoting Cast Art

Indus., LLC v. KPMG LLP, 209 N.J. 208, 222 (2012)). At the same time, we

must interpret the statute "in an integrated way without undue emphasis on any

particular word or phrase and, if possible, in a manner which harmonizes all of

its parts so as to do justice to its overall meaning." Malzberg v. Josey, 473

N.J. Super. 537, 551 (App. Div. 2022) (quoting Miah v. Ahmed, 179 N.J. 511,

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521 (2004)). "[W]here a word or phrase occurs more than once in a statute, it

should have the same meaning throughout, unless there is a clear indication to

the contrary." L.A. v. N.J. Div. of Youth & Fam. Servs., 217 N.J. 311, 333

(2014) (quoting Oldfield v. N.J. Realty Co., 1 N.J. 63, 69 (1948)).

For purposes of context, we next provide background of the Recovery

Court diversionary program and detail its eligibility criteria. As we explained

in State v. Matrongolo, 479 N.J. Super. 8, 18-19 (App. Div. 2024):

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). State v. Meyer, 192 N.J.

421, 430 (2007) (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

[Recovery Court] Manual. Meyer, 192 N.J. at 430-31;

see also Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.1 on R. 1:1-1 (2024) (discussing the

Court's authority over practice and procedure of the

courts).

[(alterations in original) (citations reformatted).]

Recovery Court admits individuals on two "distinct and mutually

exclusive tracks." Id. at 23 (quoting State v. Harris, 466 N.J. Super. 502, 551

(App. Div. 2021)). Track One applicants are those who are "presently subject

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

term of parole ineligibility," while Track Two applicants are those "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." Ibid. (quoting

Harris, 466 N.J. Super. at 551). A Track One applicant "must meet all the

eligibility criteria for 'special probation' enumerated in N.J.S.A. 2C:35 -14(a)."

Harris, 466 N.J. Super. at 510.

With these principles in mind, we address specific provisions of N.J.S.A.

2C:35-14, which in our view support the judge's conclusion that subsection

(a)(5) refers to a weapons offense to which an applicant seeks admission to

Recovery Court and any firearms offense that remains pending at the time a

defendant seeks such admission. Specifically, we focus on the prefatory

language to subsections (a)(5) and (b) and the plain language of subsections

(a)(5) and (a)(7).

Subsections (a)(5) and (a)(7), inclusive of the preliminary language,

provide in pertinent part:

Notwithstanding the presumption of incarceration

pursuant to the provisions of subsection d. of

N.J.S.[A.] 2C:44-1, whenever a person with a

substance use disorder who is subject to sentencing

under this section is convicted of or adjudicated

delinquent for an offense, other than one described in

subsection b. of this section, the court, upon notice to

the prosecutor, may, on motion of the person, or on

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the court's own motion, place the person on special

probation, which shall be for a term of five years,

provided that the court finds on the record that:

....

(5) 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; and

(6) the person has not been previously convicted

on two or more separate occasions of crimes of

the first[-] or second[-]degree, other than those

listed in paragraph (7); or the person has not

been previously convicted on two or more

separate occasions, where one of the offenses is

a crime of the third[-]degree, other than crimes

defined in N.J.S.[A.] 2C:35-10, and one of the

offenses is a crime of the first[-] or second[-]

degree; and

(7) the person has not been previously convicted

or adjudicated delinquent for, and does not have

a pending charge of murder, aggravated

manslaughter, manslaughter, kidnapping,

aggravated assault, aggravated sexual assault or

sexual assault, or a similar crime under the laws

of any other state or the United States . . . .

[N.J.S.A. 2C:35-14(a) (emphasis added).]

Subsection (b) states:

A person shall not be eligible for special

probation pursuant to this section if the person is

convicted of or adjudicated delinquent for:

(1) a crime of the first[-]degree;

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(2) a crime of the first[-] or second[-]degree

enumerated in subsection d. of section 2 of

P.L.1997, c.117 (C.2C:43-7.2), other than a

crime of the second[-]degree involving

N.J.S.[A.] 2C:15-1, robbery, N.J.S.[A.] 2C:18-2,

burglary, or section 2 of P.L.2024, c.83

(C.2C:18-2.2), residential burglary;

(3) a crime, other than that defined in section 1

of P.L.1987, c.101 (C.2C:35-7), for which a

mandatory minimum period of incarceration is

prescribed under chapter 35 of this Title or any

other law; or

(4) an offense that involved the distribution or

the conspiracy or attempt to distribute a

controlled dangerous substance or controlled

substance analog to a juvenile near or on school

property.

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

Based on these provisions, we discern three distinct categories of

offenses that serve to disqualify a Track One candidate from Recovery Court:

(1) "present offenses" (offenses to which a Track One applicant seeks

admission to Recovery Court); (2) "other pending charges" (pending charges

different from any offense to which a Track One applicant seeks admission

into Recovery Court); and (3) "prior convictions."

The parties' dispute centers around the second clause of subsection

(a)(5), which requires the court to find a Track One Recovery Court applicant

"did not possess a firearm at the time of any pending criminal charge." If, as

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the State contends, "at the time of any pending criminal charge" means during

the pendency of any criminal charge—including the charge for which a

defendant seeks to enter Recovery Court—defendant would not be eligible for

Recovery Court. On the other hand, if "at the time of any pending criminal

charge" means in the commission of any offense still pending at the time of

application, as the judge concluded, defendant would be eligible. We are

convinced the language of N.J.S.A. 2C:35-14, taken as a whole, and the

legislative intent behind the statute and the Recovery Court program fully

supports the judge's decision.

First, the judge correctly found that to qualify as a "pending charge"

under subsection (a)(5), the firearms charge must still be pending at the time

defendant seeks admission into Recovery Court. That is, so long as a firearms

charge is resolved prior to a defendant's application, whether by plea or

otherwise, the charge will not bar a defendant's entry into Recovery Court

under subsection (a)(5).

In reaching this conclusion, we reject the State's argument our

interpretation would "incentivize similarly situated defendants to delay their

other criminal matters in order to resolve their unlawful possession of a

firearm charge before applying to Recovery Court on their other pending

charges, effectively circumventing the disqualifying bar of factor [(a)](5)." As

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the judge recognized, in the unlikely circumstance where a defendant could

postpone their application to Recovery Court, once the matter has been

resolved, the court may still consider a defendant's conduct with respect to its

"danger to the community" analysis under N.J.S.A. 2C:35-14(a)(9). A charge

still pending at the time an applicant seeks admission to Recovery Court,

however, substantially hinders the court from making that necessary

determination.

Second, the State's construction of subsection (a)(5) would render its

first clause superfluous. Indeed, if a Recovery Court applicant cannot "possess

a firearm at the time of any pending criminal charge," and "any pending

criminal charge" includes the present offense, it would be unnecessary to

further specify an applicant cannot "possess a firearm at the time of the present

offense." Such a construction would improperly render the first clause of

subsection (a)(5) "mere surplusage." M.R., 478 N.J. Super. at 387 (quoting

Cast Art Indus., 209 N.J. at 222).

Third, the State's interpretation of subsection (a)(5) fails to "harmonize[]

all of [the statute's] parts so as to do justice to its overall meaning." Malzberg,

473 N.J. Super. at 551 (quoting Miah, 179 N.J. at 521). It is clear from the

plain language of N.J.S.A. 2C:35-14 the Legislature did not intend to exclude

from Recovery Court all applicants who possessed firearms in the past. Such

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offenses are conspicuously absent from subsection (a)(7), which details

specific disqualifying convictions. The Legislature could have included

firearms offenses in that provision but did not. Additionally, in Maurer, we

specifically held a Track One applicant "may . . . have a prior conviction for a

weapons charge and still be eligible for [Recovery] Court." 438 N.J. Super. at

415.

Fourth, we are convinced the State's interpretation is inconsistent with

the definition of "pending charge" used in subsection (a)(7). In Ancrum, the

defendant pled guilty to second-degree burglary, second-degree robbery, and

second-degree aggravated assault, among other charges. 449 N.J. Super. at

528. Because Ancrum's aggravated assault charge merged with his convictions

for burglary and robbery, the Recovery Court judge reasoned he was not

statutorily barred from entry into Recovery Court. Id. at 529. Although we

reversed the Recovery Court's decision because Ancrum's aggravated assault

conviction made him legally ineligible for entry into Recovery Court under

subsection (b)(2), id. at 536-39, we also noted "pending charge" as used in

subsection (a)(7) did not refer to the charges for which a defendant sought to

enter Recovery Court, id. at 535.

The Legislature has not amended the statute in the seven years since that

decision despite being aware of our construction. See Maeker v. Ross, 219

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N.J. 565, 575 (2014) (noting "the Legislature is presumed to be aware of

judicial construction of its enactments" (quoting DiProspero, 183 N.J. at 494)).

Absent a "clear indication to the contrary," words repeated in a statute should

be construed consistently. L.A., 217 N.J. at 333 (quoting Oldfield, 1 N.J. at

69). We are satisfied N.J.S.A. 2C:35-14 provides no such "clear indication"

that "pending charge" should be interpreted differently in sections (a)(5) and

(a)(7).

Fifth, we conclude the State's interpretation of the statute would

improperly create a fourth category of disqualifying offenses "for offenses

committed while on bail or pretrial release, which would only apply to

firearms offenses." That result is entirely inconsistent with other provisions of

the statute in which it is clear that a prior conviction involving possession of a

firearm does not render an applicant ineligible for Track One unless the

conviction is for one of the enumerated offenses in subsection (a)(7).

In other statutes involving offenses committed while on pretrial release,

the Legislature used markedly different language than that employed in

subsection (a)(5) when addressing those charges. See, e.g., N.J.S.A. 2C:44-

5(h) (providing term of incarceration "for an offense committed while

released, with or without bail, pending disposition of a previous offense . . .

shall run consecutively to any sentence of imprisonment imposed for the

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previous offense."); N.J.S.A. 2C:44-5.1(a) (providing for extended term of

imprisonment where a defendant convicted of certain offenses "if, at the time

of the commission of the crime, the defendant was released on bail or on his

own recognizance for one of the enumerated crimes and was convicted of that

crime"); N.J.S.A. 2A:162-24(a) (permitting court to revoke defendant's pretrial

release "upon a finding of probable cause to believe that the eligible defendant

has committed a new crime while on release" after making certain other

findings). Although the Legislature is certainly not required to use identical

language throughout the Code of Criminal Justice, we are persuaded the

absence of the word "release" from subsection (a)(5), suggests it did not intend

to address offenses committed on pretrial release.

Sixth, we are also convinced the State's interpretation of subsection

(a)(5) is contrary to the intent underlying the statute as a whole. As we

discussed in Matrongolo, changes to the Recovery Court Manual since its

inception and case law interpreting that Manual and N.J.S.A. 2C:35-14 have

demonstrated "a repeated intent to expand access to Recovery Court" where

proper. 479 N.J. Super. at 22; see also Meyer, 192 N.J. at 423-24 (rejecting

State's argument "that only those defendants eligible for 'special probation'

under N.J.S.A. 2C:35-14 may be admitted into" Recovery Court); Maurer, 438

N.J. Super. at 417-18 (modifying eligibility criteria for Track Two applicants

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as stated in the 2002 Recovery Court Manual to adhere to the 2012 amendment

to N.J.S.A. 2C:35-14, which expanded access for Track One applicants);

Figaro, 462 N.J. Super. at 578-79 (concluding statutory criteria and exclusions

for Track One applicants did not govern Track Two applicants, but could be

relevant to the court's decision); Harris, 466 N.J. Super. at 545 (finding

interpretation of the 2012 amendment to the special probation statute "that

would have the practical effect of restricting access to [Recovery] Court

contravenes the legislative purpose," the "overarching goal" of which was "to

enlarge, not reduce, the pool of defendants who could participate in

[Recovery] Court"). The State's erroneous construction is inimical to these

goals.

We are unpersuaded by the State's argument that defendant's proposed

construction, which we adopt, would lead to "an absurd and unreasonable

result" such that individuals who have outstanding firearms charges, and enjoy

the presumption of innocence, are barred from entry into Recovery Court while

those who are found guilty, by plea or otherwise, are legally eligible. On the

contrary, it is the State's construction that would lead to an unreasonable and

unfair result.

Indeed, as Judge Hanna correctly noted, the State's argument fails to

acknowledge that under its interpretation, an applicant could be excluded from

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Recovery Court even though their firearm-related offense was later dismissed.

And, the State's rebuttal—that a dismissal or acquittal would demonstrate the

applicant did not possess a firearm and thus they would not be ineligible under

subsection (a)(5)—fails to address the reality that dismissals are based on

numerous reasons independent of whether a defendant committed the offense

charged, such as an unconstitutional seizure, and when the offense is

downgraded to a lesser charge, for example.

Our interpretation is entirely consistent with N.J.S.A. 2C:35-14, which

does not prohibit individuals with "a prior conviction for a weapons charge"

from Track One eligibility, see Maurer, 438 N.J. Super. at 415, and equally

important, it acknowledges the practical considerations and realities attendant

to Graves Act offenses. As the judge observed, the majority of Graves Act

offenses result in a prison sentence, which would remove Recovery Court as

an option, as an incarcerated defendant cannot be sentenced to a concurrent

probationary term under those circumstances. In those situations where a

Graves Act defendant is sentenced to a non-custodial probationary sentence

like defendant, the court can consider that offense to the extent defendant

represents a danger to the community under N.J.S.A. 2C:35-14(a)(9).

In sum, we are in full accord with Judge Hanna's decision to admit

defendant to Track One Recovery Court. A firearms charge must still be

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pending at the time a defendant seeks admission into Recovery Court. The

State's interpretation of subsection (a)(5): renders its first clause superfluous;

interposes a restriction not specified by the Legislature; is inconsistent with

previous definitions of the same term in subsection (a)(7) under Ancrum; and

departs from the clearly defined legislative intent to expand access to

Recovery Court.

Affirmed.

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