NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1098-23

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

JESSICA S. MATRONGOLO, 

 Defendant-Appellant. 

__________________________ 

Argued June 4, 2024 – Decided July 3, 2024

Before Judges Gooden Brown, Natali and Puglisi. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Middlesex 

County, Accusation No. 23-08-0676.

Melissa L. Baskind, Assistant Deputy Public 

Defender, argued the cause for appellant (Jennifer N. 

Sellitti, Public Defender, attorney; Melissa L. 

Baskind, of counsel and on the briefs). 

David M. Liston, Assistant Prosecutor, argued the 

cause for respondent (Yolanda Ciccone, Middlesex 

County Prosecutor, attorney; David M. Liston, of 

counsel and on the brief). 

Kaili E. Matthews, Deputy Attorney General, argued 

the cause for amicus curiae Attorney General of New

Jersey (Matthew J. Platkin, Attorney General, 

APPROVED FOR PUBLICATION 

July 3, 2024 

APPELLATE DIVISION 
A-1098-23 2 

attorney; Kaili E. Matthew, of counsel and on the 

brief). 

American Civil Liberties Union of New Jersey 

Foundation, attorneys for amicus curiae American 

Civil Liberties Union of New Jersey (Alexander 

Shalom, Dillon Reisman, and Jeanne LoCicero, on the

brief). 

 

The opinion of the court was delivered by 

NATALI, J.A.D. 

In 2022, an estimated 7.4% of New Jersey adults—approximately 

535,280 individuals—met the formal diagnosis criteria for abuse or 

dependence on illicit drugs and/or alcohol.1 In that same year, although 45,914 

people were admitted to substance use treatment in New Jersey, the Division 

of Mental Health and Addiction Services estimated the unmet demand for 

treatment was nearly double that number, or approximately 79,750 

individuals.2 And, in 2021, the State recorded a record high 3,144 

unintentional drug overdose deaths.3 

1

 Dep't of Human Servs., 2022 Inventory & Need Assessment for N.J. 

Behavioral Health 6. See also U.S. Census Bureau, Table S0101 Age and Sex 

– American Community Survey (2022) (calculating New Jersey's total adult 

population at 7,233,502 people). 

2

 Dep't of Human Servs., 2022 N.J. Drug & Alcohol Use Treatment - 

Substance Use Overview Statewide 3, 17. 

3

 Dep't of Health, 2022 N.J. SUDORS Overdose Mortality Data Explorer. 
A-1098-23 3 

The substance abuse epidemic occurring in our communities, and the 

crime attendant to the disease of addiction led, in part, to the creation of 

Recovery Court,4 a judicial program "which combats the hopelessness of 

addiction with the hopefulness of treatment." State v. Harris, 466 N.J. Super. 

502, 510 (App. Div. 2021). Through "a highly specialized team process within 

the existing Superior Court structure," the Recovery Court judge, attorneys, 

probation representatives, and treatment professionals "work together to 

support and monitor a participant's recovery." Admin. Off. of the Cts., N.J. 

Statewide Recovery Court Manual (Jan. 2022) 3-4 (2022 Manual). Our 

Supreme Court has repeatedly recognized the positive role of Recovery Court 

in improving the lives of its participants and the community. See State v. 

Meyer, 192 N.J. 421, 429-30 (2007) and State v. Clarke, 203 N.J. 166, 174 

(2010). 

This appeal concerns defendant Jessica S. Matrongolo's 5 challenge to a 

Law Division order which categorically excluded her from this crucial 

resource because she was convicted of a petty disorderly persons (PDP) 

offense. The court reasoned that as a matter of law, Recovery Court is only 

4

 Until 2022, Recovery Court was known as Drug Court. Our opinion uses the 

earlier term when discussing authorities which pre-date the name change. 

5

 As noted infra, Jessica died during the pendency of this appeal. We refer to 

her by her first name, intending no disrespect. 
A-1098-23 4 

available to those convicted of a "crime," which, under our Criminal Code, 

disorderly persons (DP) and PDP offenses are not.6 Finding no support in the 

law for the court's decision, we reverse. 

I.

Jessica was initially charged with third-degree attempt to defraud the 

administration of a drug test, N.J.S.A. 2C:36-10(d), and N.J.S.A. 2C:5-1(a)(1), 

and fourth-degree possession of a device to defraud the administration of a 

drug test, N.J.S.A. 2C:36-10(e). Pursuant to a plea agreement, Jessica pled 

guilty to disorderly conduct, N.J.S.A. 2C:33-2(a)(2)—a PDP offense—in 

exchange for dismissal of the criminal charges and with the understanding that 

she would apply for Recovery Court.7 

The court initially summarily denied her application without providing 

the parties an opportunity to present oral or written arguments. After we 

granted leave to appeal and reversed, remanding for the court to "consider 

6

 Pursuant to N.J.S.A. 2C:1-4(a)(1), a "crime" refers to an offense that carries 

a term of at least six months imprisonment, or that is graded first-, second-, 

third- or fourth- degree. "Disorderly persons offenses and petty disorderly 

persons offenses are petty offenses and are not crimes within the meaning of 

the Constitution of this State." N.J.S.A. 2C:1-4(b)(1). 

7

 The record reflects, on the date of these offenses, Jessica was already 

participating in Recovery Court. It is unclear whether she was discharged 

from the program due to the filing of the new third- and fourth-degree 

offenses. 
A-1098-23 5 

[Jessica]'s application anew," it considered her application with the benefit of 

written briefing and oral arguments. The court again denied Jessica's 

application, this time explaining in an August 9, 2023 written decision that 

Recovery Court is not a sentencing option for those convicted of a DP or PDP 

offense, because neither are "crimes" as defined in our Criminal Code. 

Jessica again sought interlocutory review, which we granted, prompting 

the trial judge to submit two written amplifications of his August 9, 2023 

decision, dated December 7, 2023 and February 20, 2024, pursuant to Rule 

2:5-1(b). In ruling that Recovery Court is only available to those convicted of 

a crime, the judge first drew support from a number of excerpts from the 2022 

Manual. The first of which, the judge said, "sets out the program's mission: 

'to stop the abuse of alcohol and other drugs and related criminal activity.'" 

The judge reasoned the Manual's drafters "notably chose the word criminal" 

and did so intentionally, as they repeated that term on page eight when they 

wrote: "The purpose of [R]ecovery [C]ourt is to divert defendants facing 

criminal charges with substance abuse problems into treatment." In the judge's 

view, "[t]hese two statements cement[ed] the drafters' intent; namely recovery 

courts are for people who commit crimes." 

 The judge recognized that the 2022 Manual also says that "a defendant is 

legally eligible for recovery court if he or she qualifies for sentencing to 
A-1098-23 6 

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),"8 but reasoned to read this language as 

permitting anyone eligible for probation to enter the program is to read the 

statement out of context. In the judge's view, this language "simply contrasts 

the two paths into the program: one through special probation and one through 

regular probation," but "does not displace the program's explicit objectives." 

The drafters further conveyed this intent, said the judge, by eliminating the 

words "offense" and "offender" from the current version of the Manual 

because those terms include DP and PDP offenses. 

The judge further reasoned that since PDP offenses are most often heard 

in municipal court, permitting PDP offenders to enter Recovery Court would 

open the program to municipal court defendants, contrary to the Legislature's 

and the Manual's drafters' intent. Finally, relying upon State v. Bishop, 429 

N.J. Super. 533 (App. Div. 2013), aff'd, 223 N.J. 290 (2015), the judge 

explained without the threat of imprisonment, which is not a sentencing option 

for a PDP offense beyond thirty days in jail, a person with a non-criminal 

conviction would have no incentive to comply with the conditions of Recovery 

Court. 

8

 As detailed infra, an applicant may be eligible for Recovery Court through 

two paths, known as Track One and Track Two, which have separate and 

distinct eligibility criteria. 
A-1098-23 7 

We invited the Attorney General and the American Civil Liberties Union 

of New Jersey (ACLU) to participate as amicus curiae, both of whom 

submitted briefs contending the court erred in denying Jessica's application to 

Recovery Court. 

Subsequently, the parties informed us that Jessica tragically passed away 

at age thirty-one due to a suspected drug overdose. The State moved to 

dismiss the appeal as moot, which Jessica's counsel opposed, contending the 

case presented an issue of significant public importance likely to recur. We 

denied the motion "without prejudice to consideration of the issue by the 

merits panel on plenary review." We therefore begin by considering whether 

this appeal should be dismissed as moot, a question we answer in the negative. 

II. 

When a judicial decision "can have no practical effect on the existing 

controversy," an issue is rendered moot. State v. Nieves, 476 N.J. Super. 609, 

657 (App. Div. 2023) (quoting Redd v. Bowman, 223 N.J. 87, 104 (2015)). As 

our Supreme Court explained, "the New Jersey Constitution does not confine 

the exercise of the judicial power to actual cases and controversies," so 

mootness does not necessarily end a case. State v. Gartland, 149 N.J. 456, 464 

(1997). Generally, however, we "will not render advisory opinions or exercise 

[our] jurisdiction in the abstract." Ibid. 
A-1098-23 8 

Although "[t]he power to entertain a criminal appeal even after death 

should be sparingly exercised," in certain circumstances, we nevertheless 

adjudicate such a case. Id. at 465. "Our courts will entertain a case that has 

become moot when the issue is of significant public importance and is likely to 

recur." Id. at 464; see also State v. Cassidy, 235 N.J. 482, 491 (2018) 

(declining to dismiss as moot appeal involving deceased defendant because 

case implicated reliability and admissibility of over 20,000 Alcotest breath 

samples). 

 We are convinced the issue presented in this appeal holds "significant 

public importance and is likely to recur." Gartland, 149 N.J. at 464. The 

matter is one of first impression with a significant impact on applicants to 

Recovery Court and judges who preside over those matters. As noted, 

hundreds of thousands of New Jersey citizens suffer with substance abuse or 

dependence, many of whom are involved in the criminal legal system, and 

overdose deaths reached a record high in 2021. At the same time, and as the 

ACLU has ably argued in its merits brief, access to potentially life-saving 

treatment is severely limited. The question of whether a person convicted of a 

DP or PDP offense is eligible to seek that treatment through Recovery Court is 

one with a significant effect far beyond Jessica. Further, because the court's 

decision was based not on Jessica's individual circumstances but on the 
A-1098-23 9 

classification of her conviction, it is likely to recur whenever an individual 

with only a DP or PDP conviction seeks to enter Recovery Court. Therefore, 

we conclude this case is justiciable and address the merits. 

III. 

 Jessica argues the court erred in concluding she was ineligible for 

Recovery Court solely based on her PDP conviction. She maintains the court's 

decision was not supported by the legal eligibility provisions in the 2022 

Manual nor the trend toward expanded access to Recovery Court. The 

Attorney General as amicus agrees, noting those convicted of DP and PDP 

offenses in Superior Court are eligible for probation under N.J.S.A. 2C:45-1 

and therefore for Recovery Court under a proper reading of the 2022 Manual 

and relevant case law. Amicus ACLU concurs but emphasizes Recovery Court 

and similar programs may redirect resources away from quality communitybased treatment untethered to the criminal legal system. 

Jessica and both amici also maintain the court incorrectly concluded 

PDP offenders lack an incentive to complete Recovery Court because they do 

not face a lengthy prison sentence. Jessica argues an alternative sentence is 

not required under the 2022 Manual, and the court "fails to appreciate" the 

numerous other motivations for Recovery Court participants, such as the 

genuine desire to overcome substance abuse, the opportunity to expunge one's 
A-1098-23 10

criminal records, or the structure and support provided by the program. The 

Attorney General points out the court's reliance on Bishop was misplaced, as 

that case considered Track One Recovery Court applicants "who, by definition, 

face an alternative prison sentence." The ACLU adds no empirical studies 

reflect the threat of incarceration has any effect on drug court participation or 

success. 

In requesting we affirm, the Prosecutor argues the court correctly found 

Recovery Court was not intended for PDP offenders despite conceding "neither 

the [2022 Manual] nor the governing statute, N.J.S.A. 2C:35-14, expressly 

disqualifies from [R]ecovery [C]ourt a defendant who has only been found 

guilty of a [PDP] offense." It agrees with the court the "carrot-and-stick 

approach" used in Recovery Court would not function as effectively without 

the "stick" of an alternative prison sentence. Further, the Prosecutor contends 

expanding Recovery Court to DP and PDP offenses would "open the 

proverbial flood gates" to municipal court defendants and "far more 

participants than recovery courts were created to handle." For the following 

reasons, we disagree with each of the Prosecutor's points and reverse. 

We briefly address the standard governing our review. Because the 

appeal asks us to construe the Recovery Court eligibility criteria as set forth in 

the 2022 Manual, a question of law, our review is de novo. State v. Figaro, 
A-1098-23 11

462 N.J. Super. 564, 571 (App. Div. 2020); State v. Amer, 471 N.J. Super. 

331, 355 (App. Div. 2022). Accordingly, we give "no deference to the trial 

court's 'interpretation of the law and the legal consequences that flow from 

established facts.'" State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014) 

(quoting State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011)). 

 As noted, we find no support for the judge's decision in the historical 

development of Recovery Court as conveyed in statute, the Manual, and court 

decisions interpreting both. As a full understanding of the development and 

evolution of Recovery Court informs our decision, we detail that history. 

Recovery Court is not a creature of the Legislature, but of the judiciary, 

and was developed in accordance with the Court's "exclusive authority under 

the New Jersey Constitution to administer the courts" and "execute[] its 

policies through the Administrative Office of the Courts" (AOC). Meyer, 192 

N.J. at 430 (citing N.J. Const. art. VI, § 2, ¶ 3 and In re P.L. 2001, Chapter 

362, 186 N.J. 368, 381-82 (2006)). While Recovery Court is a sentencing 

option, and thus rooted in legislative enactment, it is "a subpart of the criminal 

part of the Law Division," and its eligibility criteria are a matter of judicial 

policy expressed through AOC Directive and the Manual. Meyer, 192 N.J. at 

430-31; see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.
A-1098-23 12

1:1-1 (2024) (discussing the Court's authority over practice and procedure of 

the courts). 

 In the mid-1990s, the AOC developed the first Drug Court pilot program 

to be administered through probation in certain counties "on an experimental 

basis." Meyer, 192 N.J. at 430. The program was intended to create a better 

way of dealing with the rising number of prison-bound drug offenders than the 

traditional approach of "incarceration and more incarceration," which "was not 

working." 2022 Manual at 3-4. People of color were "hit the hardest" as "a 

disproportionate percentage of inmates in the New Jersey state prison system 

have been and are minorities." Id. at 4. In addition to the "skyrocket[ing]" 

cost of incarcerating drug offenders, the "devast[ing]" effect of drug abuse and 

related crime on families and communities was evident in "drug addicted 

newborns, children in foster care, violence in neighborhoods, unsafe streets 

and unpaid child support." Id. at 3. 

The pilot program proved beneficial, and in May 2000, the Conference 

of Criminal Presiding Judges recommended its adoption as a "best practice" 

within the Criminal Division statewide. Admin. Off. of the Cts., Manual for 

Operation of Adult Drug Courts in N.J. (July 22, 2002) 6 (2002 Manual). 

Subsequently, the Judicial Council adopted Drug Courts as best practices and 

"called for a comprehensive statewide proposal," which was drafted in 
A-1098-23 13

December 2000 and implemented through legislation enacted in September 

2001. Ibid. By 2004, Drug Courts were operating in every vicinage. Id. at 8. 

Initially, the pilot program's target population was "nonviolent substance 

abusing defendants." Id. at 5. To ensure "equal access" to the program, 

however, "the Presiding Judges recommended that the [D]rug [C]ourt caseload 

consist of prison-bound and other cases." Id. at 6. As the "primary focus of 

the funding" for Drug Court was to provide "an alternative to prison," the 2002 

Manual contemplated caseloads would consist of 73% prison-bound cases and 

27% non-prison-bound cases. Id. at 8. 

In accordance with those goals, the 2002 Manual set forth eligibility 

criteria for two tracks for admission into the program. See Meyer, 192 N.J. at 

432-33 (discussing the "two tracks" to Drug Court; one through special 

probation and the other through regular probation). Consistent with their 

present eligibility criteria, Track One was available to defendants "subject to a 

presumption of incarceration" who were eligible for "special probation" under 

N.J.S.A. 2C:35-14, and Track Two was available to defendants who were not 

prison-bound, but faced a sentence to regular probation or fewer than 365 days 

in a county jail. 2002 Manual at 9-10. Those who pled guilty to a probation 

violation or were terminated from the Pretrial Intervention program were also 

eligible for Track Two. Id. at 9. The 2002 Manual permitted application to 
A-1098-23 14

Drug Court "at any time following an arrest and up until plea cutoff," but 

encouraged intervention as early as possible in the process. Id. at 19. 

Pursuant to the 2002 Manual, in order to be sentenced to Drug Court on 

Track Two,9 an applicant must have met the following criteria: (1) a 

diagnostic assessment determined the applicant had "a drug or alcohol 

dependence"; (2) the program would be "likely to benefit" the applicant; (3) 

the applicant had no pending charges or previous conviction or adjudication 

for murder, aggravated manslaughter, manslaughter, robbery, kidnapping, 

aggravated assault, aggravated sexual assault, or sexual assault; (4) the charges 

included no first- or second-degree crime; (5) the applicant did not "possess a 

firearm" during the underlying crime or any prior offense; and (6) the 

applicant would not pose a danger to the community while serving a term of 

Drug Court. Id. at 16-17. These requirements largely tracked those found in 

the special probation statute at the time. See N.J.S.A. 2C:35-14 (2001). Aside 

from the enumerated disqualifying crimes, eligibility was not limited by the 

nature or classification of the charges. 

 After the AOC released the 2002 Manual, it did not amend the Manual 

until 2019. In the intervening years, the Legislature amended N.J.S.A. 2C:35-

9

 Because it is undisputed Jessica was not subject to a presumption of 

incarceration and thus ineligible as a Track One participant, we focus our 

discussion exclusively on Track Two eligibility. 
A-1098-23 15

14 four times, with two of those expanding the class of those eligible for 

special probation and thus Recovery Court. See L. 2008, c. 15 (removing 

automatic exclusion for those with multiple prior third-degree convictions); L.

2012, c. 23 (removing robbery and burglary from list of disqualifying offenses 

and limiting exclusion based on prior convictions to first-degree offenses). 

The 2019 Manual formally identified the two paths as Track One and 

Track Two and amended the eligibility criteria such that they were far less 

restrictive. Admin. Off. of the Cts., N.J. Statewide Drug Court Manual (June 

2019) 9 (2019 Manual). Specifically, it removed the six requirements 

enumerated in the 2002 Manual and instead provided a defendant is "legally 

eligible for [D]rug [C]ourt 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)." Ibid. It also clarified a "defendant who 

initially is not eligible for [D]rug [C]ourt could become eligible by way of a 

plea agreement that dismisses the non-[D]rug [C]ourt eligible charges" or 

"upon acquittal of a charge that initially rendered the applicant ineligible." 

Ibid. Further, prior entry to the program would no longer result in automatic 

rejection. Id. at 10. Again, the criteria made no mention of ineligibility based 

on a defendant's conviction only for a DP or PDP offense. 
A-1098-23 16

The AOC again amended the Manual in 2020, reiterating Track One 

applied to special probation candidates, while Track Two applied to regular 

probation candidates, but making no substantive change to the eligibility 

requirements. Admin. Off. of the Cts., N.J. Statewide Drug Court Manual 

(Dec. 2020) 9 (2020 Manual). In 2022, the AOC published the current version 

of the Manual, which changed the name of the program to Recovery Court but 

again made no change to the legal eligibility provisions of the 2019 and 2020 

Manuals. 2022 Manual at 9. 

While the Manual defines eligibility for regular probation by reference 

to N.J.S.A. 2C:45-1, that statute does not detail which defendants may be 

sentenced to probation but rather sets forth permissible conditions of 

probation. In doing so, it uses the term "offense" rather than crime, and 

specifically carves out DP offenses when discussing split sentences to 

probation and incarceration. N.J.S.A. 2C:45-1. Other provisions of our 

Criminal Code make clear defendants convicted of DP or PDP offenses 

generally may be sentenced to probation. See N.J.S.A. 2C:43-2(b)(2), (g) 

(permitting court to sentence "a person who has been convicted of an offense" 

to probation, except certain sex offenses). Further, the special probation 

statute expressly provides "[n]othing in this section shall be construed to 

prohibit a person who is eligible for probation in accordance with N.J.S.A. 
A-1098-23 17

2C:45-1 due to a conviction for an offense which is not subject to a 

presumption of incarceration . . . from applying for treatment for substance use 

disorder as a condition of probation." N.J.S.A. 2C:35-14(a). 

 Our case law similarly demonstrates a repeated intent to expand access 

to Recovery Court. In Meyer, the Supreme Court rejected the State's argument 

that only those eligible for special probation under N.J.S.A. 2C:35-14 could 

enter Recovery Court. 192 N.J. at 423-24. In Maurer, we modified the 

eligibility criteria for Track Two applicants in the 2002 Manual to conform to 

the 2012 amendment to N.J.S.A. 2C:35-14 which expanded access for Track 

One applicants. 438 N.J. Super. at 417-18. In Figaro, we concluded the 

statutory criteria and exclusions for Track One applicants did not govern Track 

Two applicants, but could be considered in the court's discretion. 462 N.J. 

Super. at 578-79. And in Harris, we noted an interpretation of the 2012 

amendment to the special probation statute "that would have the practical 

effect of restricting access to Drug Court contravenes the legislative purpose," 

the "overarching goal" of which was "to enlarge, not reduce, the pool of 

defendants who could participate in Drug Court." 466 N.J. Super. at 545. 

 We are satisfied the foregoing reveals a lack of support for the court's 

conclusion a defendant is ineligible for Recovery Court if the underlying 

conviction is for a DP or PDP offense. The eligibility requirements for the two 
A-1098-23 18

tracks are clear and simple: Track One applies to those eligible for special 

probation and Track Two applies to those eligible for regular probation. 2022 

Manual at 9. As we recently explained: 

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 as defined in N.J.S.A. 2C:44-1(d) or 

to a mandatory term of parole ineligibility, he or she is 

a Track Two candidate. 

[Harris, 466 N.J. Super. at 551.] 

The Prosecutor points to no law, decision, or directive, nor has our 

independent research uncovered any, that adds to the Track Two criteria the 

condition that the person be sentenced for a "crime." 

Further, contrary to the court's decision, a plain reading of the legal 

eligibility provision of the Manual demonstrates it was not "simply 

contrast[ing] the two paths into the program." Rather, the Manual's drafters 

clearly titled the section "Legal Eligibility" and declined to condition 

eligibility on any other requirements. The fact that the program originated 

from a desire to reduce the number of prison-bound drug offenders does not 
A-1098-23 19

negate the clearly defined legal eligibility requirements for the two tracks, 

eligibility for special or regular probation, which have remained consistent. 

As noted, since its inception, Recovery Court has always encompassed both 

prison-bound and non-prison-bound defendants. 

 The court also placed undue emphasis on the conviction for which the 

person is being sentenced. As the Manual makes clear, early intervention is 

encouraged and the court may admit a person to Recovery Court without a 

guilty plea in place. Here, Jessica was charged with third- and fourth-degree 

crimes and she could have applied for Recovery Court based on these charges. 

As the Manual makes clear, a defendant may plea bargain to become eligible 

for Recovery Court, conveying an intent to permit more—not fewer—

applicants. Pursuant to a plea agreement, Jessica reduced her charge to a PDP 

offense. It is inconsistent with the spirit of Recovery Court that someone who 

is eligible for Track Two based on their initial charges would become 

ineligible because the State agrees to accept a plea to a lesser charge. 

 The court's reliance on the removal of the term "offender" in 

amendments to the Manual is also misplaced. The drafters replaced "offender" 

with "defendant," a more neutral term which clearly describes anyone charged 

with a criminal or non-criminal offense. We fundamentally disagree with the 

conclusion the drafters sought to convey an intent to exclude DP and PDP 
A-1098-23 20

offenders based on such a subtle change in the face of clearly expressed 

eligibility criteria which included no such provision. 

 We are similarly unpersuaded by the court's and the Prosecutor's 

concerns that permitting DP and PDP offenders to enter Recovery Court would 

unduly expand eligibility to municipal court defendants. Jessica was within 

the jurisdiction of the Superior Court and was not being sentenced in 

municipal court. Thus, whether she, or anyone else, could enter Recovery 

Court in municipal court was plainly not at issue, and should not have 

impaired the court's analysis. 

Finally, we reject the court's conclusion that defendants not subject to 

incarceration would have no incentive to succeed in Recovery Court. Bishop, 

upon which it relied, made clear that it "d[id] not deal with those admitted to 

Drug Court under the regular probation track" but rather "only with offenders 

sentenced to special probation under N.J.S.A. 2C:35-14, whose probation is 

subsequently permanently revoked." 429 N.J. Super. at 540. To accept the 

court's rationale would essentially negate Track Two eligibility and the 

historical composition of Recovery Court as both prison-bound and nonprison-bound defendants, instead limiting the program to those facing a 

presumption of incarceration. That is contrary to the explicit eligibility 

criteria, the case law, and the spirit of Recovery Court. 
A-1098-23 21

Not only was Jessica not a Track One applicant, but the court also failed 

to consider the various behavioral modification techniques and rewards for 

progress that Recovery Court uses to encourage compliance. 2022 Manual at 

25-26 ("The most effective and successful drug courts utilize a varied and 

creative range of intermediate-magnitude responses to participants' behavior 

that can be adjusted up or down in intensity in response to continued violations 

or successes. Sanctions and rewards tend to be least effective at the lowest and 

highest levels."); see also Admin. Off. of the Cts., Admin. Directive #03-20, 

Drug Court – State of N.J. Adult Drug Court Program – Participant Incentive 

& Sanction Charts (Jan. 3, 2020) (providing matrix for identifying level of 

behavior and necessary response, such as increasing or decreasing required 

contacts with probation or community service hours). While sanctions were 

initially stressed to address violations, the approach has changed over the years 

to encourage positive behavior as opposed to punishing negative behavior. As 

Jessica explained in her merits brief, people entering Recovery Court may 

have various reasons for doing so, including the possibility of expungement or 

a true desire to overcome substance abuse. 

Jessica's untimely death highlights the pressing need for life-saving 

resources to combat substance abuse in New Jersey. Our opinion clarifies 

individuals convicted of DP and PDP offenses in Superior Court are not 
A-1098-23 22

categorically barred from seeking those resources. The court erred in holding 

otherwise. 

Reversed.