RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1667-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN D. APPLEBY,

Defendant-Appellant.

_____________________________

Submitted May 16, 2019 – Decided June 12, 2019

Before Judges Whipple and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 17-10-1645.

Robert L. Tarver, Jr., attorney for appellant.

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; Shiraz I. Deen, 

Assistant Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-1667-18T1

On leave granted, defendant, John Appleby, appeals from a September 20, 

2018 order denying his admission into Drug Court. We affirm.

In February 2017, Lacy Township police learned defendant routinely 

traveled to Florida to purchase cocaine to sell in New Jersey. On March 18, 

2017, Lacy Township police performed a vehicle stop of defendant's car. The 

search revealed a digital scale with white powder residue, a bag with a trace 

amount of marijuana and two bags containing suspected methamphetamine and 

cocaine. The police arrested defendant.

On June 22, 2017, defendant underwent a Treatment Assessment Services 

for Court (TASC) evaluation to determine if he was eligible for Drug Court. On 

July 7, 2017, the TASC evaluator reported defendant did "not manifest any 

symptoms of a substance use disorder as defined in the DSM-5."1 

Defendant was subsequently indicted for third-degree possession of a 

controlled dangerous substance (CDS) (methamphetamine), N.J.S.A. 2C:35-

10(a)(1); third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1); 

second-degree possession with intent to distribute (cocaine), N.J.S.A. 2C:35-

5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and second-degree conspiracy to distribute 

 

1

 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.
3

A-1667-18T1

or possess with intent to distribute (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:35-5(b)(2). 

On May 9, 2018, defendant moved for admission into Drug Court. In 

support of the motion, defendant underwent a private substance abuse screening 

performed by Lisa Mollicone LCADC. Mollicone concluded defendant "clearly 

fits the DSM[-]5 criteria for a severe substance abuse problem." On August 24, 

2018, the Drug Court judge conducted a hearing and denied defendant's 

admission. The judge rejected Mollicone's substance abuse report as a "net 

opinion, which is not admissible and may not be considered." In rejecting

Mollicone's report, the judge stated: 

The next sentence: "[defendant] has a cocaine 

dependency problem, severe. He uses cocaine daily."

Okay. So that's the basis? My understanding, I'm not 

a professional, but as a drug court judge -- I've been 

doing this for a while -- is that mere use alone is not 

enough to justify the conclusion that somebody has a 

moderate to severe substance abuse disorder, and that's

all I read here.

. . . . 

Next sentence: "he is dependent on crystal meth, 

methamphetamine and uses it several times a week."

That's it. That['s] the only "analysis[,]"[] the only 

factual recitation regarding that subject . . . .
4

A-1667-18T1

So, we've got a sentence for each disorder. And, again, 

I have to compare and contrast that to the TASC 

evaluator's report, which has all kind of details and 

facts about all those aspects that, while they're 

mentioned here, they're not fleshed out or analyzed at 

all. 

. . . . 

So, there's no dissection of the history for me to review. 

If she spent a lot of time and went into a lot of detail, it 

hasn't been related to me, and I have to conclude that 

Ms. Mollicone's report is what we call a net opinion, 

and it wouldn’t be admissible at trial, because she 

doesn't give us the why and wherefore that support the 

opinion, [but] rather [] a mere conclusion. 

The Drug Court judge denied defendant admission, and we granted

defendant's motion for leave to appeal.

Defendant raises the following issues on appeal:

POINT I: DEFENDANT'S SUBSEQUENT 

EVALUATIONS FOLLOWING HIS REJECTION 

DEMONSTRATE THAT HE QUALIFIES FOR 

ENTRY INTO THE DRUG COURT PROGRAM.

POINT [II]: THE COURT IMPROPERLY REJECTED 

MS. MOLLICONE'S FINDINGS AND ASSESSMENT 

WITHOUT SUFFICIENT BASIS AMOUNTING TO 

AN ABUSE OF DISCRETION.

Determining whether an offender is eligible for drug court "involves a 

question of law." State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014). 

"Our standard of review on legal issues is de novo and we owe no deference to 
5

A-1667-18T1

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

from established facts . . . .'" State v. Bradley, 420 N.J. Super. 138, 141 (App. 

Div. 2011) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995)).

"A trial court's evidentiary rulings are entitled to deference absent a 

showing of an abuse of discretion, i.e., there has been a clear error of judgment." 

State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration omitted) (quoting State 

v. Harris, 209 N.J. 431, 439 (2012)). When a trial court fails to apply the proper 

legal standard to determine admissibility of evidence, the court's decision is not 

entitled to deference and appellate review is de novo. State v. Darby, 174 N.J. 

509, 518 (2002). 

On appeal, defendant argues Mollicone's evaluation demonstrates that he 

qualifies for admission into the Drug Court program because he is a drug 

dependent person, N.J.S.A. 2C:35-2, and the judge erred when he rejected 

Mollicone's report. We disagree.

"A fair deliberative process requires that the Drug Court judge consider 

all of the relevant information available." State v. Clarke, 203 N.J. 166, 182 

(2010). "Although a Drug Court judge is not bound by a substance abuse 

evaluator's recommendation for in-patient drug treatment, the evaluation is a 
6

A-1667-18T1

critical component of a decision to grant or deny admission into the Drug Court 

program." Id. at 183. "The substance abuse evaluator's recommendation can 

assist in the judge's consideration of a defendant's need for treatment and the 

probable effect of any addiction on future criminal behavior." Ibid. Special 

probation provides one track by which certain offenders become eligible for 

Drug Court, a "specialized court[] . . . that target[s] drug-involved 'offenders 

who are most likely to benefit from treatment and do not pose a risk to public 

safety.'" State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Administrative 

Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey

3 (July 2002)). "Under [this] track, to meet the requirements for 'special 

probation,' the applicant must have committed a crime that is subject to a 

presumption of incarceration or a mandatory prison term, and the judge must 

find that the applicant satisfies nine separate factors." Clarke, 203 N.J. at 175 

(citing N.J.S.A. 2C:35-14(a)(1)-(9)). The two factors most at issue in the 

present case are:

(1) the person has undergone a professional diagnostic 

assessment to determine whether and to what extent the 

person is drug or alcohol dependent and would benefit 

from treatment; and

(2) the person is a drug or alcohol dependent person 

within the meaning of N.J.S.[A.] 2C:35-2 and was drug 
7

A-1667-18T1

or alcohol dependent at the time of the commission of 

the present offense[.]

[N.J.S.A. 2C:35-14(a)(1), (2).]

N.J.S.A. 2C:35-14(a) states that a judge must consider "the presentence 

report and the results of the professional diagnostic assessment to determine 

whether and to what extent the person is drug or alcohol dependent and would 

benefit from treatment." (Emphasis added). 

We disagree with the State's argument that the Legislature intended the 

judge to exclusively rely on the TASC report and no other assessments are to 

be considered. The phrase "the results of the professional diagnostic 

assessment," as used in N.J.S.A. 2C:35-14(a), has remained static since its 

enactment. See N.J.S.A. 2C:35-14(a); L. 1987, c. 106, § 1. N.J.S.A. 2C:35-

14(a) specifically requires a judge to consider "all relevant circumstances, and 

[the judge] shall take judicial notice of any evidence, testimony or information 

adduced at the trial, plea hearing or other court proceedings[.]"

Here, the judge carefully considered and rejected Mollicone's report. The 

judge is not bound by the substance abuse evaluator's determination. Clarke, 

203 N.J. at 183. In fact, even if both the TASC report and Mollicone's report 

found defendant had some level of substance abuse problems, the court would 

not be bound by these opinions. N.J.S.A. 2C:35-14(a) states the court may 
8

A-1667-18T1

"place the person on special probation, which shall be for a term of five years, 

provided that the court finds on the record that [the conditions are met]." 

(Emphasis added). This is a legal determination where the court must determine 

whether the person is "drug or alcohol dependent." N.J.S.A. 2C:35-14(a)(2). 

For this reason, the relevant inquiry is not which report is controlling, but 

whether the judge properly considered the TASC report and other substance 

abuse report. The record demonstrates he did.

Affirmed.