Judge Messano continued in relevant part: The language in the legal eligibility section of the Manual dealing with “legal screening” is permissive, stating the process “could involve a review” of numerous of factors, including “statutory eligibility criteria contained in N.J.S.A. 2C:35-14 or other statutory provisions in the code, if applicable.” Id. at 9 (emphasis added). If this meant that only one set of eligibility criteria, i.e., N.J.S.A. 2C:35-14, applied to both tracks, as the State contends, there was no need to include the language we have emphasized. The State has not suggested an explanation for the additional language consistent with its argument. Moreover, the Manual could have simply said that the criteria contained in N.J.S.A. 2C:35-14 apply to eligibility under both tracks, if that is what the AOC intended.
The Manual makes clear that the prosecutor may object to any application to Drug Court. See ibid. (“If the prosecutor recommends denial of the application, the reasons for denial must be documented in writing within ten days of the application.”). Thereafter, the Manual again permits, but does not necessarily require, application of the statutory bars in N.J.S.A. 2C:35-14 by stating: “A drug court prosecutor can recommend a legal rejection based on N.J.S.A. 2C:35-14 and whether the applicant is a potential danger to the community.” Ibid. (emphasis added). In other words, the Manual permits the prosecutor to recommend against admission of a Track Two applicant based on the statutory bars. It goes without saying that if the statutory bars automatically applied, no “recommendation” would be necessary because, according to the State, a judge would be legally prohibited from admitting these Track Two applicant-defendants into Drug Court.
This “potential danger to the community” is a catch-all that prosecutors have used since the advent of drug court. Criminal defense attorneys unfamiliar with the sweeping changes to the drug court statute, manual, and related case law might still be deterred from appealing such a rejection in light of the great discretion that drug court prosecutors once had. As court dockets continue to become increasingly over-burdened, it would be nice to see a similar curtailment of prosecutors’ discretion when it comes to pre-trial intervention (P.T.I.) applications.