The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3855-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGELA L. OTEY,
Defendant-Appellant.
__________________________
Submitted August 30, 2017 – Decided November 9, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 15-06-1030.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
A grand jury indicted defendant for second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree
aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2)
(count two); second-degree burglary, N.J.S.A. 2C:18-2 (count
three); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d) (count four); and third-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). On
October 26, 2015, defendant pled guilty to count three and admitted
burglarizing the apartment of S.H., her ex-girlfriend, while armed
with a box cutter. In exchange for the guilty plea, the State
agreed to dismiss the remaining counts and to recommend sentencing
in the third-degree range, see N.J.S.A. 2C:44-1(f)(2),
specifically a five-year custodial sentence subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the terms of
the plea agreement, defendant reserved the right to apply for
sentencing into Drug Court and, if her application was rejected,
to argue for a three-year custodial sentence.
Pursuant to N.J.S.A. 2C:35-14(a), defendant applied to Drug
Court, but was rejected by the Drug Court prosecutor. Defendant
appealed her rejection to the trial court, but her appeal was
denied on January 14, 2016. Thereafter, defendant was sentenced
to three years imprisonment, subject to an eighty-five percent
period of parole ineligibility pursuant to NERA. Defendant now
appeals her March 3, 2016 judgment of conviction, arguing the
2 A-3855-15T3
court erred in denying her appeal from the prosecutor's rejection
of her Drug Court application. We disagree and affirm.
After pleading guilty to second-degree burglary, defendant,
then thirty-four years old, applied to Drug Court on October 26,
2015. Her application was reviewed as a Track 1 case. At the
time, defendant had no prior history of indictable convictions.
In conjunction with her application, defendant underwent a
Treatment Assessment Services for the Courts (TASC) evaluation in
order to determine her level of drug or alcohol dependency. The
TASC evaluator found that defendant manifested symptoms of severe
alcohol use disorder and severe heroin use disorder, and
recommended a short-term residential inpatient program. However,
the Drug Court prosecutor denied defendant's admission to Drug
Court, citing the significant threat to the community posed by
defendant's commission of a violent offense.
On January 14, 2016, the court considered defendant's appeal
of the rejection. Initially, the court summarized the facts as
follows:
[O]n December [] 5th, 2014 the defendant broke
into S.H.'s residence and assaulted A.D. with
a box cutter knife. The defendant had
previously been in a relationship with S.H.
It appears that the defendant climbed the fire
escape, entered the residence, then
encountered A.D. . . . [I]t appears that the
incident happened at around 3:30 a.m. A.D.
was asleep, heard a noise, jumped up, the
3 A-3855-15T3
defendant swung towards his face, cut his
face, cut his arm with a box cutter. . . .
A.D. said he didn't even realize that he was
cut until . . . the lights [went] on[,] there
was blood everywhere and the box cutter was
in the defendant's right hand. The defendant
was also wearing blue latex gloves according
to A.D. After some issues[,] the defendant
was finally pushed out the door by A.D. and
it's my understanding that she also suffered
an injury as a result of this encounter.
In evaluating the statutory criteria for Drug Court
admission,1 the court found that defendant met the requirements of
1
Under N.J.S.A. 2C:35-14(a), to be eligible for admission into
Drug Court, the sentencing court must find the following nine
factors:
(1) the person has undergone a professional
diagnostic assessment to determine whether and
to what extent the person is drug or alcohol
dependent and would benefit from treatment;
and
(2) the person is a drug or alcohol dependent
person within the meaning of [N.J.S.A. 2C:35-
2] and was drug or alcohol dependent at the
time of the commission of the present offense;
and
(3) the present offense was committed while
the person was under the influence of a
controlled dangerous substance, controlled
substance analog or alcohol or was committed
to acquire property or monies in order to
support the person’s drug or alcohol
dependency; and
(4) substance use disorders treatment and
monitoring will serve to benefit the person
by addressing the person’s drug or alcohol
dependency and will thereby reduce the
likelihood that the person will thereafter
commit another offense; and
4 A-3855-15T3
N.J.S.A. 2C:35-14(a)(1) through (4) because "defendant does have
a drug or alcohol dependence" based upon the findings of the TASC
evaluator. Regarding N.J.S.A. 2C:35-14(a)(5) through (7), the
court determined that there were "no disqualifying crimes or
firearms history that would prevent the defendant from coming into
(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; and
(8) a suitable treatment facility licensed
and approved by the Division of Mental Health
and Addiction Services in the Department of
Human Services is able and has agreed to
provide appropriate treatment services in
accordance with the requirements of this
section; and
(9) no danger to the community will result
from the person being placed on special
probation pursuant to this section.
5 A-3855-15T3
Drug Court statutorily[,]" and a "suitable treatment facility" was
available to satisfy N.J.S.A. 2C:35-14(a)(8). However, in
evaluating N.J.S.A. 2C:35-14(a)(9), the court was troubled by the
violent nature of the offense as well as defendant's psychiatric
history as recounted in the TASC evaluation and determined that
"on balance, . . . the mental health concerns outweigh[ed] the
substance abuse issues[,]" making Drug Court inappropriate for
defendant. The court noted:
The report indicates that the defendant has
experienced psychological problems during the
past 30 days including serious anxiety,
tension, hallucinations, trouble
understanding, concentrating or remembering.
During her lifetime she has suffered serious
depression, serious anxiety, hallucination
where she sees things, hears things, trouble
controlling her violent behavior, she had been
court-mandated to attend anger management even
before this incident occurred, thoughts of
suicide and she has attempted suicide in the
past. Indeed, she reported experiencing
psychological or emotional problems 30 days
within the past 30 days, so we have this very
violent situation, we have that history of
psychological problems.
The court acknowledged the hardship imprisonment would have
on defendant, "especially in light of the fact that the defendant
has a daughter who does rely upon her so heavily." However, the
court denied defendant's appeal based upon "the violent nature of
this crime," and "the significant mental health history." The
court explained:
6 A-3855-15T3
[A]lthough I commend the defendant for
recognizing her need . . . for treatment to
combat her substance abuse addiction[,] I
cannot escape the conclusion that to permit
her to participate in Drug Court would likely
pose a danger to the community. Even if we
were to take all the facts as set forth by the
defendant, that this was an act of self[-
]defense, it's 3:30 in the morning,
undoubtedly somebody is going to be
encountered. The defendant is wearing latex
gloves, she has a box cutter in her hand. If
she didn't encounter A.D.[,] she probably
would have encountered S.H. and the likelihood
of some serious injury was very, very high.2
So although the plea might have been
ultimately to a second[-]degree burglary[,]
there was a significant element of violence
involved. So again, it's a one time criminal
record but it was a very violent offense
nonetheless. The victim was very
significantly injured and it was, as I said,
a very violent offense and the Drug Court
program is for the nonviolent offender[.]
This appeal followed.
On appeal, defendant raises the following argument for our
consideration:
POINT I
THE DRUG COURT JUDGE ERRED IN DENYING
[DEFENDANT'S] DRUG COURT APPEAL.
2
Notably, although defendant had no prior indictable convictions,
in the year prior, defendant had been convicted of simple assault
in a domestic violence incident involving S.H. Defendant received
a suspended jail sentence and was sentenced to a one-year
probationary term conditioned upon undergoing anger management and
having no contact with S.H.
7 A-3855-15T3
"Drug Courts are specialized courts within the Superior Court
that target drug-involved 'offenders who are most likely to benefit
from treatment and do not pose a risk to public safety.'" State
v. Meyer, 192 N.J. 421, 428-29 (2007) (citing Administrative Office
of the Courts, Manual for Operation of Adult Drug Courts in New
Jersey (July 2002)). There are two general ways to be admitted
to drug court. See State v. Maurer, 438 N.J. Super. 402, 413
(App. Div. 2014). Defendants admitted to Drug Court who are
subject to sentencing with a presumption of incarceration and who
satisfy the nine separate factors embodied in N.J.S.A. 2C:35-
14(a), are assigned to Track 1 and required to serve a period of
"special probation" pursuant to N.J.S.A. 2C:35-14(a). Maurer,
supra, 438 N.J. Super. at 413. Defendants with drug abuse problems
who are not subject to a presumption of incarceration are assigned
to Track 2 and are eligible for Drug Court under the general
sentencing provisions of the Criminal Code pursuant to N.J.S.A.
2C:45-2. Maurer, supra, 438 N.J. Super. at 413 (citing State v.
Clarke, 203 N.J. 166, 174-76 (2010)).
Under a prior version of the statute governing admission to
Drug Court, "N.J.S.A. 2C:35-14(c) granted the prosecutor the right
to object to an otherwise qualified defendant's entry into Drug
Court and, absent a showing of 'gross and patent abuse of [the
prosecutor's] discretion,' a court could not override that
8 A-3855-15T3
objection and admit the defendant to Drug Court." Maurer, supra,
438 N.J. Super. at 414 (alteration in original). However,
"[s]ubsection (c) was deleted in the 2012 amendments" to the Drug
Court Statute, thus removing the prosecutor's objection as an
impediment to the sentencing court's decision to sentence a
defendant to special probation. Ibid. Therefore, it is clear
that under the current statutory framework, it is the sentencing
court, not the prosecutor, who makes the final determination
regarding an applicant's eligibility for Drug Court. See Ibid.
"By its action, the Legislature clearly evinced an intention to
rely on a judge's discretion and ability to better determine
admission without continuing the prosecutor's right to veto." Id.
at 418. While the "'abuse of discretion' standard defies precise
definition, it arises when a decision 'is made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002) (citing Achacoso-Sanchez v.
Immigration & Naturalization Serv., 779 F. 2d 1260, 1265 (7th Cir.
1985)).
Here, the court determined that, while defendant pled guilty
to a qualifying offense for a Track 1 Drug Court application and
satisfied most of the statutory criteria, defendant's admission
into Drug Court posed a danger to the community based upon the
9 A-3855-15T3
violent nature of the offense in conjunction with her mental health
history. We discern no abuse of discretion in the court's
decision. Defendant argues that "neither the nature of the offense
nor [defendant's] mental health history support the conclusion
that [defendant's] participation in drug court would pose a danger
to the community[,]" particularly since the court's "finding was
based entirely on [defendant's] self-reported psychiatric status
contained in the TASC evaluation." Further, defendant asserts
that the court "erred in finding that [defendant] presented a
danger to the community based on the violent nature of the instant
offense and the fact that [defendant] has had 'trouble controlling
her violent behavior' in the past[.]" We disagree.
In determining whether to sentence a defendant to special
probation,
the court shall consider all relevant
circumstances, and shall take judicial notice
of any evidence, testimony or information
adduced at the trial, plea hearing or other
court proceedings, and shall also consider the
presentence report and the results of the
professional diagnostic assessment to
determine whether and to what extent the
person is drug or alcohol dependent and would
benefit from treatment.
[N.J.S.A. 2C:35-14(a).]
Here, the court's findings are supported by the "relevant
circumstances" contained in the record.
10 A-3855-15T3
Affirmed.
11 A-3855-15T3