On February 18, 2021, a three-judge appellate panel decided the Cape May County consolidated cases that included State v. Christopher Harris. The principal issue under N.J.S.A. 2C:35-14 involved whether the nature of a drug court applicant’s prior record made them a “Track One” Drug Court candidate for eligibility and sentencing purposes.
Judge Susswein wrote for the Appellate Division in relevant part: For the sake of clarity and in the interest of simplifying the decision-making framework, we briefly summarize the sequence of decisions a Drug Court judge must make in determining whether a defendant is legally eligible to be admitted to Drug Court and if so, whether he or she should be admitted. Legal eligibility is a threshold question that must be decided in all cases. 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 or to a mandatory term of parole ineligibility, he or she is a Track Two candidate.
The critical question is not whether the defendant is likely to be sentenced to prison based on the weighing of aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b). A defendant, moreover, is not subject to the presumption of imprisonment by reason of his or her past criminal history, except in the case of a repeat automobile theft offender. Nor is a defendant presently subject to the presumption of imprisonment simply because he or she was previously convicted of a crime subject to the presumption or because he or she has previously been sentenced to state prison. Rather, the presumption of imprisonment in N.J.S.A. 2C:44-1(d) is determined by reference to the present offense(s) for which defendant is convicted and is to be sentenced.
Since Drug Court eligibility was broadened under Governor Christie, prosecutors have been searching for ways to re-take their former discretion to reject applicants. This has happened statewide with weak arguments like the ones put forth in these consolidated Cape May County cases. Because the appellate process is an onerous one, especially as it relates to interlocutory appeals, the appellate procedure has been used by prosecutors to undermine applicants’ substantive rights.