NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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 Superi or 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 DIVISIONA- 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 t he unmet demand for treatment was nearly double that number, or approxi mately 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 Asses sment 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 Us e Treatment - Substance Use Overview Statewide 3, 17.

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

- 23 3 The substance abuse epidemic occurring in our commu nities, 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." Stat e v. Harris, 466 N.J. Super. 502, 510 (App. Div. 2021). Through "a highly speci alized team process within the existing Superior Court structure," the Recover y Court judge, attorneys, probation representatives, and treatment profession als "work together to support and monitor a participant's recovery." Adm in. Off. of the Cts., N.J. Statewide Recovery Court Manual (Jan. 2022) 3-4 (20 22 Manual). Our Supreme Court has repeatedly recognized the positiv e 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. Cla rke, 203 N.J. 166, 174 (2010). This appeal concerns defendant Jessica S. Matrongol o's 5 challenge to a Law Division order which categorically excluded her from this crucial resource because she was convicted of a petty disor derly persons (PDP) offense. The court reasoned that as a matter of la w, 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, u nder 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 att empt 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 ple a 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 applicatio n without providing the parties an opportunity to present oral or writt en 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" refe rs 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 offe nses and petty disorderly persons offenses are petty offenses and are not cri mes 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 whe ther 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 ap plication with the benefit of written briefing and oral arguments. The court aga in denied Jessica's application, this time explaining in an August 9, 2 023 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 amplification s of his August 9, 2023 decision, dated December 7, 2023 and February 20, 2 024, pursuant to Rule 2:5 -1(b). In ruling that Recovery Court is only avail able 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 r elated criminal activity.'" The judge reasoned the Manual's drafters "notably c hose the word criminal" and did so intentionally, as they repeated that ter m on page eight when they wrote: "The purpose of [R]ecovery [C]ourt is to di vert defendants facing criminal charges with substance abuse problems into treatment." In the judge's view, "[t]hese two statements cement[ed] the drafte rs' intent; namely recovery courts are for people who commit crimes." The judge recognized that the 2022 Manual also say s that "a defendant is legally eligible for recovery court if he or she qu alifies for sentencing toA- 1098

- 23 6 special probation under N.J.S.A. 2C:35-14 (Track On e)[,] 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 t he program is to read the statement out of context. In the judge's view, th is language "simply contrasts the two paths into the program: one through specia l probation and one through regular probation," but "does not displace the prog ram's explicit objectives." The drafters further conveyed this intent, said the judge, by eliminating the words "offense" and "offender" from the current ver sion 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 ent er Recovery Court would open the program to municipal court defendants, con trary to the Legislature's and the Manual's drafters' intent. Finally, relyin g upon State v. Bishop, 429 N.J. Super. 533 (App. Div. 2013), aff'd, 223 N.J. 2 90 (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 per son with a non-criminal conviction would have no incentive to comply with t he 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 Ci vil Liberties Union of New Jersey (ACLU) to participate as amicus curia e, both of whom submitted briefs contending the court erred in deny ing 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 impor tance likely to recur. We denied the motion "without prejudice to considerati on of the issue by the merits panel on plenary review." We therefore begi n 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 eff ect 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 Consti tution 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 ad visory 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 circumst ances, we nevertheless adjudicate such a case. Id. at 465. "Our courts w ill 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 dece ased defendant because case implicated reliability and admissibility of ov er 20,000 Alcotest breath samples). We are convinced the issue presented in this appea l holds "significant public importance and is likely to recur." Gartlan d, 149 N.J. at 464. The matter is one of first impression with a significan t impact on applicants to Recovery Court and judges who preside over those ma tters. As noted, hundreds of thousands of New Jersey citizens suffer with substance abuse or dependence, many of whom are involved in the crimin al 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 whe ther a person convicted of a DP or PDP offense is eligible to seek that treatmen t 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 circ umstances but on theA- 1098

- 23 9 classification of her conviction, it is likely to r ecur whenever an individual with only a DP or PDP conviction seeks to enter Rec overy Court. Therefore, we conclude this case is justiciable and address th e merits.
III. Jessica argues the court erred in concluding she w as 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 Reco very Court. The Attorney General as amicus agrees, noting those con victed of DP and PDP offenses in Superior Court are eligible for probati on under N.J.S.A. 2C:45- 1 and therefore for Recovery Court under a proper rea ding of the 2022 Manual and relevant case law. Amicus ACLU concurs but emp hasizes Recovery Court and similar programs may redirect resources away fr om quality communitybased treatment untethered to the criminal legal sy stem. Jessica and both amici also maintain the court inco rrectly concluded PDP offenders lack an incentive to complete Recover y Court because they do not face a lengthy prison sentence. Jessica argue s an alternative sentence is not required under the 2022 Manual, and the court " fails to appreciate" the numerous other motivations for Recovery Court parti cipants, such as the genuine desire to overcome substance abuse, the opp ortunity to expunge one'sA- 1098

- 23 10 criminal records, or the structure and support prov ided by the program. The Attorney General points out the court's reliance on Bishop was misplaced, as that case considered Track One Recovery Court appli cants "who, by definition, face an alternative prison sentence." The ACLU add s 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 d espite 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 wh o has only been found guilty of a [PDP] offense." It agrees with the cou rt the "carrot-and-stick approach" used in Recovery Court would not function as effectively without the "stick" of an alternative prison sentence. Fur ther, the Prosecutor contends expanding Recovery Court to DP and PDP offenses wou ld "open the proverbial flood gates" to municipal court defendan ts and "far more participants than recovery courts were created to h andle." For the following reasons, we disagree with each of the Prosecutor's points and reverse. We briefly address the standard governing our revie w. Because the appeal asks us to construe the Recovery Court eligi bility criteria as set forth in the 2022 Manual, a question of law, our review is d e 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 "n o deference to the trial court's 'interpretation of the law and the legal co nsequences that flow from established facts.'" State v. Maurer, 438 N.J. Sup er. 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 decis ion in the historical development of Recovery Court as conveyed in statut e, the Manual, and court decisions interpreting both. As a full understandi ng of the development and evolution of Recovery Court informs our decision, w e 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 "e xclusive authority under the New Jersey Constitution to administer the court s" and "execute[] its policies through the Administrative Office of the C ourts" (AOC). Meyer, 192 N.J. at 430 (citing N.J. Const. art. VI, § 2, ¶ 3 a nd In re P.L. 2001, Chapter 362 , 186 N.J. 368, 381-82 (2006)). While Recovery Cou rt is a sentencing option, and thus rooted in legislative enactment, i t is "a subpart of the criminal part of the Law Division," and its eligibility crit eria are a matter of judicial policy expressed through AOC Directive and the Manu al. Meyer, 192 N.J. at
430

- 31; see also Pressler & Verniero, Current N.J. Court Ru les, cmt. 2.1 on R.A- 1098

- 23 12 1:1 -1 (2024) (discussing the Court's authority over pr actice 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 cou nties "on an experimental basis." Meyer, 192 N.J. at 430. The program was i ntended to create a better way of dealing with the rising number of prison-bou nd drug offenders than the traditional approach of "incarceration and more inc arceration," which "was not working." 2022 Manual at 3-4. People of color wer e "hit the hardest" as "a disproportionate percentage of inmates in the New J ersey state prison system have been and are minorities." Id. at 4. In addit ion to the "skyrocket[ing]" cost of incarcerating drug offenders, the "devast[i ng]" effect of drug abuse and related crime on families and communities was evide nt in "drug addicted newborns, children in foster care, violence in neig hborhoods, unsafe streets and unpaid child support." Id. at 3. The pilot program proved beneficial, and in May 200 0, the Conference of Criminal Presiding Judges recommended its adopti on 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, 20 02) 6 (2002 Manual). Subsequently, the Judicial Council adopted Drug Cou rts as best practices and "called for a comprehensive statewide proposal," wh ich was drafted inA- 1098

- 23 13 December 2000 and implemented through legislation e nacted in September 2001. Ibid. By 2004, Drug Courts were operating in every vicina ge. Id. at 8. Initially, the pilot program's target population wa s "nonviolent substance abusing defendants." Id. at 5. To ensure "equal a ccess" 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 alte rnative 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 prog ram. 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 availab le 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 d efendants who were not prison-bound, but fac ed 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 Inte rvention program were also eligible for Track Two. Id. at 9. The 2002 Manual permitted application toA- 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 sentenc ed 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 be nefit" the applicant; (3) the applicant had no pending charges or previous convi ction or adjudication for murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault, or s exual 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 o ffense; 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 larg ely 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, eligibili ty 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 Legislat ure 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 pa rticipant, we focus our discussion exclusively on Track Two eligibility.A- 1098

- 23 15 14 four times, with two of those expanding the clas s of those eligible for special probation and thus Recovery Court. See L. 2008, c. 15 (removing automatic exclusion for those with multiple prior t hird-degree convictions); L. 2012, c. 23 (removing robbery and burglary from lis t of disqualifying offenses and limiting exclusion based on prior convictions t o first-degree offenses). The 2019 Manual formally identified the two paths a s Track One and Track Two and amended the eligibility criteria such that they were far less restrictive. Admin. Off. of the Cts., N.J. Statewi de Drug Court Manual (June 2019) 9 (2019 Manual). Specifically, it removed th e 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 re gular 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]our t 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 of fense.A- 1098

- 23 16 The AOC again amended the Manual in 2020, reiterati ng Track One applied to special probation candidates, while Trac k Two applied to regular probation candidates, but making no substantive cha nge to the eligibility requirements. Admin. Off. of the Cts., N.J. Statew ide Drug Court Manual (Dec. 2020) 9 (2020 Manual). In 2022, the AOC publ ished the current version of the Manual, which changed the name of the progra m to Recovery Court but again made no change to the legal eligibility provi sions of the 2019 and 2020 Manuals. 2022 Manual at 9. While the Manual defines eligibility for regular pr obation by reference to N.J.S.A. 2C:45-1, that statute does not detail w hich defendants may be sentenced to probation but rather sets forth permis sible 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. Ot her 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 bee n convicted of an offense" to probation, except certain sex offenses). Furthe r, the special probation statute expressly provides "[n]othing in this secti on 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 fo r 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 int ent to expand access to Recovery Court. In Meyer, the Supreme Court rej ected the State's argument that only those eligible for special probation unde r N.J.S.A. 2C:35-14 could enter Recovery Court. 192 N.J. at 423-24. In Maur er, we modified the eligibility criteria for Track Two applicants in th e 2002 Manual to conform to the 2012 amendment to N.J.S.A. 2C:35-14 which expan ded access for Track One applicants. 438 N.J. Super. at 417-18. In Fi garo, we concluded the statutory criteria and exclusions for Track One app licants did not govern Track Two applicants, but could be considered in the cour t's discretion. 462 N.J. Super. at 578-79. And in Harris, we noted an inter pretation of the 2012 amendment to the special probation statute "that wo uld have the practical effect of restricting access to Drug Court contrave nes the legislative purpose," the "overarching goal" of which was "to enlarge, no t reduce, the pool of defendants who could participate in Drug Court." 4 66 N.J. Super. at 545. We are satisfied the foregoing reveals a lack of s upport for the court's conclusion a defendant is ineligible for Recovery C ourt if the underlying conviction is for a DP or PDP offense. The eligibi lity requirements for the twoA- 1098

- 23 18 tracks are clear and simple: Track One applies to those eligible for special probation and Track Two applies to those eligible f or 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 w hether the defendant is a Track One or Track Two candidate

. A defendant is a Track One candidate if, and only i f, he or she is presently subject to the presumption o f 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 presumpti on of imprisonment as defined in N.J.S.A. 2C:44-1(d) o r 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 direc tive, nor has our independent research uncovered any, that adds to th e 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." Rat her, the Manual's drafters clearly titled the section "Legal Eligibility" and declined to condition eligibility on any other requirements. The fact th at the program originated from a desire to reduce the number of prison-bound drug offenders does notA- 1098

- 23 19 negate the clearly defined legal eligibility requir ements for the two tracks, eligibility for special or regular probation, which have remained consistent. As noted, since its inception, Recovery Court has a lways encompassed both prison-bound and non-prison- bound defendants

. The court also placed undue emphasis on the convic tion for which the person is being sentenced. As the Manual makes cle ar, early intervention is encouraged and the court may admit a person to Reco very Court without a guilty plea in place. Here, Jessica was charged wi th third- and fourth-degree crimes and she could have applied for Recovery Cour t based on these charges. As the Manual makes clear, a defendant may plea bar gain to become eligible for Recovery Court, conveying an intent to permit m ore

— not fewer

— applicants. Pursuant to a plea agreement, Jessica reduced her charge to a PDP offense. It is inconsistent with the spirit of Rec overy Court that someone who is eligible for Track Two based on their initial ch arges would become ineligible because the State agrees to accept a ple a to a lesser charge. The court's reliance on the removal of the term "o ffender" in amendments to the Manual is also misplaced. The dr afters replaced "offender" with "defendant," a more neutral term which clearly describes anyone charged with a criminal or non-criminal offense. We fundam entally disagree with the conclusion the drafters sought to convey an intent to exclude DP and PDPA- 1098

- 23 20 offenders based on such a subtle change in the face of clearly expressed eligibility criteria which included no such provisi on. We are similarly unpersuaded by the court's and th e Prosecutor's concerns that permitting DP and PDP offenders to en ter Recovery Court would unduly expand eligibility to municipal court defend ants. 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 defe ndants 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 r ather "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 Tw o eligibility and the historical composition of Recovery Court as both pr ison-bound and nonprison-bound defendants, instead limiting the progr am 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 tec hniques and rewards for progress that Recovery Court uses to encourage comp liance. 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 res ponse to continued violations or successes. Sanctions and rewards tend to be lea st 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 appro ach has changed over the years to encourage positive behavior as opposed to punish ing negative behavior. As Jessica explained in her merits brief, people enter ing Recovery Court may have various reasons for doing so, including the po ssibility of expungement or a true desire to overcome substance abuse. Jessica's untimely death highlights the pressing ne ed 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 notA- 1098

- 23 22 categorically barred from seeking those resources. The court erred in holding otherwise. Reversed.