On February 25, 2020, a three-judge appellate panel decided the Cumberland County case of State v. Tevin Figaro. The principle issue under N.J.S.A. 2C:35-14 was whether the “Track One” statutory bars for drug court participation automatically bar “Track Two” applicants.
Presiding Judge Messano held in relevant part. As we noted in Maurer, the 2002 Manual imposed more stringent eligibility requirements for applicants under Track Two than existed for applicants under Track One special probation. In Maurer, the defendant, otherwise eligible for Track Two consideration, was denied admission to Drug Court because of a prior conviction for possession of a handgun. We observed that the 2002 Manual‘s condition was more restrictive than the similar requirement for Track One offenders who commit a more serious offense. Under N.J.S.A. 2C:35-14(a)(5), a Track One offender is eligible for Drug Court if “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.” A more serious offender may, therefore, have a prior conviction for a weapons charge and still be eligible for Drug Court.
We recognized the “unfairness” in strictly applying the 2002 Manual‘s guidelines, “especially in light of the legislature’s obvious intention” in the 2012 amendments to N.J.S.A. 2C:35-14 “to liberalize admission to Drug Court based on the success of the program.” Id. at 417. We modified the guidelines and ordered a remand to the Law Division for consideration of the defendant’s application, “despite his conviction for an earlier weapons offense.” Id. at 418.
The new Manual includes significant amendments which we acknowledge create some ambiguities. It first reiterates that any “defendant is legally eligible for drug court 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).” Manual, at 9 (emphasis added). The State concedes that the Manual preserved admissions into Drug Court via two tracks.
It is unfortunate that even the amended Drug Court manual still contains ambiguities ten years after the first manual was published. Like ambiguities in criminal law legislation, many of them could be avoided if the authors consulted with experienced criminal trial attorneys.
