On July 10, 2026, a three-judge appellate panel decided the Essex County case of State v. Tyree Dwyer. The first principal issue under N.J.S.A. 2C:35-14 concerned whether constructive as opposed to actual possession of a firearm precluded Recovery Court participation.
Judge Susswein wrote for the Court in relevant part: Applying these principles to the specific provision at issue, we conclude that the term “possess” as used in N.J.S.A. 2C:35-14(a)(5) is not limited to actual possession but also includes constructive possession. At the time the statute was enacted, our courts had long interpreted “possession” in the penal code– including in the definitions of firearm possession offenses–to include constructive possession. See Spivey (“We begin our analysis by noting that an object may be actually or constructively possessed.”); Morrison (“The law recognizes three distinct forms of possession, actual, constructive, and joint.”); State v. Schmidt (1988) (noting that “in the absence of a statutory definition of the act of possession, our Code assumes that pre-Code concepts of possession would survive,” including the principle that “possession can be either actual or constructive” (internal quotation marks and citations omitted)); State v. Stewart (1984) (“Possession of a firearm for purposes of the Graves Act includes not only actual possession but constructive possession that the defendant is able to convert practically immediately to actual possession.”). We reiterate that we must presume that when the Legislature enacted N.J.S.A. 2C:35-14(a)(5) and used the term “possession,” it was familiar with the case law construing that term with respect to substantive firearms crimes.
While N.J.S.A. 2C:35-14 is codified in chapter 35 of the penal code (Controlled Dangerous Substances), rather than the chapters devoted to sentencing–chapter 43 (Authorized Disposition of Offenders) and chapter 44 (Authority of Court in Sentencing) –special probation is a sentencing feature, and thus should be construed in context with other sentencing provisions of the penal code. It bears repeating that other penal code sentencing provisions pertaining to firearms do not distinguish between actual and constructive possession. Unlawful conduct constituting constructive possession of a handgun is graded as a second-degree crime, no different from actual possession of a handgun. Convictions based on both theories, moreover, are subject to the same presumption of imprisonment, N.J.S.A. 2C:44-1(d); range of authorized sentences, N.J.S.A. 2C:43-6(a)(2); and mandatory minimum period of parole ineligibility, N.J.S.A. 2C:43-6(c).
Defendant expressly acknowledges, as he must, that “in the Graves Act statutory framework actual and constructive possession are generally treated similarly.” However, he argues that because the purpose of the Graves Act (deterring the use and possession of firearms) is “fundamentally different” from that of N.J.S.A. 2c:35-14 (rehabilitation for those with a substance use disorder), we should not reflexively import the meaning of “possession” from the Graves Act into the special probation statute.
We are unpersuaded. Without exception, the term “possession” as used in the penal code with respect to firearms includes both actual and constructive possession. Stated another way, when using the term “possession,” the penal code does not differentiate between actual possession, joint possession, and constructive possession of a firearm.
While the underlying purpose of N.J.S.A. 2C:35-14 is unquestionably different from the purpose that undergirds the Graves Act, the Legislature has resolved the conflict between the objectives of these two sentencing provisions by making clear that the immediate public safety goal advanced by the Graves Act takes precedence over the long-term rehabilitative goal advanced by permitting sentencing courts to order substance abuse treatment in lieu of imprisonment. In this instance, the Legislature by the plain language of N.J.S.A. 2C:35-14(a)(5) has stated unequivocally that gun offenders are not eligible for special probation and thus may not participate in the Recovery Court program.
We likewise are unpersuaded by defendant’s reliance on amendments to other subsections of N.J.S.A. 2C:35-14 to support his novel construction of subsection (a)(5). We do not dispute that the amendments to the special probation statute over time have expanded its reach to allow more defendants to participate in Recovery Court. But none of those revisions impacts N.J.S.A. 2C:35-14(a)(5), the provision that expressly makes gun offenders ineligible. That feature was added as part of the 1999 amendments to the statute, L. 1999, c. 376, § 2, and has not been modified since. For that reason, defendant’s reliance on several passages in State v. Hyland (2019), is misplaced, as those passages refer to the 2012 amendments to N.J.S.A. 2C:35-14, which, notably, left N.J.S.A. 2C:35-14(a)(5) unchanged. The 2012 amendments show conclusively that the Legislature knows how to amend N.J.S.A. 2C:35-14 to eliminate or relax eligibility prerequisites but did not amend the categorical disqualification feature in N.J.S.A. 2C:35-14(a)(5). We presume the legislative decision to repeal some disqualifying circumstances but not others was intentional. The canon of statutory construction, expressio unius est exclusio alterius–expression of one thing suggests the exclusion of another left unmentioned–sheds some light on the interpretative analysis.
Relatedly, it bears emphasis that each time the Legislature expanded eligibility for special probation, it did so expressly and explicitly. Defendant cites nothing in the text or legislative history of N.J.S.A. 2C:35-14 to suggest the Legislature ever meant to allow any convicted gun offenders to be admitted to the Recovery Court program.
In sum, while various statutory amendments have indeed expanded the Recovery Court program’s reach, those changes have all been codified in explicit statutory text. This shows conclusively that when the Legislature wants to enlarge the pool of potential Recovery Court candidates by altering the eligibility/ineligibility provisions of N.J.S.A. 2C:35-14, it does so with precise statutory language.
The Court’s detailed analysis is likely due to the consistent expansion of Recovery Court eligibility. The expansion has helped to ease the strain of crowded court dockets by diverting cases to Recovery Court that would otherwise be using resources via motion practice and trials. Our Supreme Court is thus motivated to find ways to continue expanding Recovery Court eligibility. Since the Supreme Court will likely review this case, the Appellate Division’s desire to avoid being reversed provides good reason to be thorough in their analysis denying the expansion of eligibility.
The Appellate Division continued in relevant part: For all the foregoing reasons, defendant’s contention that the amendments to subsections of N.J.S.A. 2c:35-14 that do not involve gun offenses impliedly altered the meaning of N.J.S.A. 2C:35-14(a)(5) is unavailing. In reaching that conclusion, we acknowledge that under the rule of lenity, ambiguities that “cannot be resolved by analysis of the relevant text and the use of extrinsic aids must be resolved in favor of the defendant.” State v. O’Donnell (2023). However, the rule of lenity only applies “if the statute still remains ambiguous” “after reviewing all sources of legislative intent.” State v. D.A. (2007)). Here, there is no ambiguity in N.J.S.A. 2C:35-14(a)(5) with respect to the categorical exclusion of persons presently charged with or eventually convicted of any gun offense. Accordingly, defendant’s guilty plea conviction for unlawful possession of a weapon renders him ineligible for special probation and Recovery Court.
Finally, we note that in the absence of explicit legislative instruction, the policy shift defendant urges should not be made by a court based solely on the Legislature’s general support for Recovery Court. That is especially true given that the Legislature has just as clearly shown its support for stern punishment for handgun possession crimes without distinguishing between actual, joint, or constructive possession. It bears noting with respect to the role of courts in implementing the Graves Act that we have been instructed by our Supreme Court to strictly adhere to it and not allow, for example, plea negotiations to evade its stern penal consequences except as may be authorized pursuant to N.J.S.A. 2C:43-6.2. See Admin Off. of the Cts., Admin. Directive #09-18, Guidelines for Downgrades/Dismissals Under the Graves Act: Strict Enforcement of Mandatory Minimum Custodial Terms for Offenses Involving Firearms (July 2, 2018).
The point simply is that the policy decision at the heart of this case must be made by the Legislature. We add on that score that the Legislature has recognized that addiction and handgun possession is a dangerous combination. See, e.g., N.J.S.A. 2C:58-3(c) (3 (barring a person with a substance use disorder from receiving a handgun purchase permit or firearms purchaser identification card). The Recovery Court process is prepared to deal with a defendant who relapses and possesses CDS in violation of special probation. See N.J.S.A. 2C:35-14(f)-(g) (outlining comprehensive procedures and standards governing the revocation of special probation upon a violation of a term or condition of the program); see also State v. Clarke (2010) (recognizing that “the disease of drug or alcohol dependence is a chronic, relapsing disorder” (quoting S. L. & Pub. Safety Comm. Statement to S. 1253 (Jan. 25, 1999))). But if a Recovery Court participant gained access to a handgun, it could expose a host of new dangers that the program is not designed to handle.
Only the Legislature can gauge public sentiment regarding the sentencing of drug-dependent gun offenders and whether public support for Recovery Court might be impacted if handgun offenders were offered treatment in lieu of mandatory imprisonment, especially if a gun-related tragedy were to occur during the treatment process. As noted, in Harris, we commented on “the proven success of the Recovery Court program” and the “broad recognition by all three branches that it promotes public safety,” which has “given the Legislature incentive and confidence to amend N.J.S.A. 2C:35-14 to expand the circumstances when sentencing courts may eschew imprisonment in favor of rehabilitative treatment.” We have no way of knowing, however, whether the program would be as successful with respect to drug-dependent gun offenders, or whether making such offenders eligible for special probation would promote or denigrate public safety. That is a policy determination for the Legislature to make, and as we have explained, it is clear to us that the Legislature has, for now, made its decision.
The second principal issue that the Court addressed concerned N.J.S.A. 2C:44-1 and the propriety of the sentencing court’s consideration of aggravating factors related to dismissed charges. The Appellate Division concluded with the following in relevant part
Finally, and of special importance for purposes of the present appeal, the law is well settled that a charge that does not result in a conviction may be considered in sentencing, as “adult arrests that do not result in convictions may be relevant to the character of the sentence imposed.” State v. Rice (App. Div. 2012). However, and of special relevance in the present matter, “the important limitation of course is that the court shall not infer guilt as to any underlying charge with respect to which the defendant does not admit his guilt.” State v. Green, (1973).
Applying the foregoing principles to the present facts, we conclude that in light of the trial court’s articulation of the reasons for its findings and its colloquy with both counsel during their respective allocutions, the court erred in finding aggravating factors one and five–which, we note, the prosecutor did not ask to be considered. In this instance, the fact that defendant was arrested at what police reports described as a “stash house,” without more, does not make his proven offense conduct “especially heinous, cruel, or depraved” or demonstrate a substantial likelihood of involvement in organized criminal activity. N.J.S.A. 2C:44-1(a)(1), (5). We reiterate that defendant only pled guilty to simple possession CDS offenses.
While this is a close case and we are generally reticent to second-guess a sentencing court with respect to the factual basis for aggravating and mitigating factors, out of an abundance of caution, we deem it appropriate to remand for the trial court to reconsider its findings with respect to the aggravating and mitigating factors as they relate to defendant’s request to deviate from the maximum sentence contemplated in the plea agreement. We offer no opinion on whether a five- or six-year prison sentence should be imposed.
