SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3855-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELA L. OTEY,

Defendant-Appellant.

__________________________

Submitted August 30, 2017 – Decided 

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Indictment No. 15-06-1030.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Alyssa Aiello, Assistant Deputy 

Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

A grand jury indicted defendant for second-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree 

NOT FOR PUBLICATION WITHOUT THE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.

November 9, 2017
2 A-3855-15T3

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) 

(count two); second-degree burglary, N.J.S.A. 2C:18-2 (count 

three); fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count four); and third-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). On 

October 26, 2015, defendant pled guilty to count three and admitted 

burglarizing the apartment of S.H., her ex-girlfriend, while armed 

with a box cutter. In exchange for the guilty plea, the State 

agreed to dismiss the remaining counts and to recommend sentencing 

in the third-degree range, see N.J.S.A. 2C:44-1(f)(2), 

specifically a five-year custodial sentence subject to the No 

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the terms of 

the plea agreement, defendant reserved the right to apply for 

sentencing into Drug Court and, if her application was rejected, 

to argue for a three-year custodial sentence.

Pursuant to N.J.S.A. 2C:35-14(a), defendant applied to Drug 

Court, but was rejected by the Drug Court prosecutor. Defendant

appealed her rejection to the trial court, but her appeal was 

denied on January 14, 2016. Thereafter, defendant was sentenced 

to three years imprisonment, subject to an eighty-five percent 

period of parole ineligibility pursuant to NERA. Defendant now 

appeals her March 3, 2016 judgment of conviction, arguing the 
3 A-3855-15T3

court erred in denying her appeal from the prosecutor's rejection 

of her Drug Court application. We disagree and affirm. 

After pleading guilty to second-degree burglary, defendant, 

then thirty-four years old, applied to Drug Court on October 26, 

2015. Her application was reviewed as a Track 1 case. At the 

time, defendant had no prior history of indictable convictions. 

In conjunction with her application, defendant underwent a 

Treatment Assessment Services for the Courts (TASC) evaluation in 

order to determine her level of drug or alcohol dependency. The 

TASC evaluator found that defendant manifested symptoms of severe 

alcohol use disorder and severe heroin use disorder, and 

recommended a short-term residential inpatient program. However, 

the Drug Court prosecutor denied defendant's admission to Drug 

Court, citing the significant threat to the community posed by

defendant's commission of a violent offense. 

On January 14, 2016, the court considered defendant's appeal 

of the rejection. Initially, the court summarized the facts as 

follows:

[O]n December [] 5th, 2014 the defendant broke 

into S.H.'s residence and assaulted A.D. with 

a box cutter knife. The defendant had 

previously been in a relationship with S.H.

It appears that the defendant climbed the fire 

escape, entered the residence, then 

encountered A.D. . . . [I]t appears that the 

incident happened at around 3:30 a.m. A.D. 

was asleep, heard a noise, jumped up, the 
4 A-3855-15T3

defendant swung towards his face, cut his 

face, cut his arm with a box cutter. . . . 

A.D. said he didn't even realize that he was 

cut until . . . the lights [went] on[,] there 

was blood everywhere and the box cutter was 

in the defendant's right hand. The defendant

was also wearing blue latex gloves according 

to A.D. After some issues[,] the defendant 

was finally pushed out the door by A.D. and 

it's my understanding that she also suffered 

an injury as a result of this encounter.

In evaluating the statutory criteria for Drug Court

admission,

1 the court found that defendant met the requirements of 

 

1 Under N.J.S.A. 2C:35-14(a), to be eligible for admission into 

Drug Court, the sentencing court must find the following nine 

factors:

(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 or alcohol dependent at the 

time of the commission of the present offense; 

and

(3) the present offense was committed while 

the person was under the influence of a 

controlled dangerous substance, controlled 

substance analog or alcohol or was committed 

to acquire property or monies in order to 

support the person’s drug or alcohol 

dependency; and

(4) substance use disorders treatment and 

monitoring will serve to benefit the person 

by addressing the person’s drug or alcohol 

dependency and will thereby reduce the 

likelihood that the person will thereafter 

commit another offense; and
5 A-3855-15T3

N.J.S.A. 2C:35-14(a)(1) through (4) because "defendant does have 

a drug or alcohol dependence" based upon the findings of the TASC 

evaluator. Regarding N.J.S.A. 2C:35-14(a)(5) through (7), the 

court determined that there were "no disqualifying crimes or 

firearms history that would prevent the defendant from coming into 

 

(5) the person did not possess a firearm at 

the time of the present offense and did not 

possess a firearm at the time of any pending 

criminal charge; and

(6) the person has not been previously 

convicted on two or more separate occasions 

of crimes of the first or second degree, other 

than those listed in paragraph (7); or the 

person has not been previously convicted on 

two or more separate occasions, where one of 

the offenses is a crime of the third degree, 

other than crimes defined in [N.J.S.A. 2C:35-

10], and one of the offenses is a crime of the 

first or second degree; and

(7) the person has not been previously 

convicted or adjudicated delinquent for, and 

does not have a pending charge of murder, 

aggravated manslaughter, manslaughter, 

kidnapping, aggravated assault, aggravated 

sexual assault or sexual assault, or a similar 

crime under the laws of any other state or the 

United States; and

(8) a suitable treatment facility licensed 

and approved by the Division of Mental Health 

and Addiction Services in the Department of 

Human Services is able and has agreed to 

provide appropriate treatment services in 

accordance with the requirements of this 

section; and

(9) no danger to the community will result 

from the person being placed on special 

probation pursuant to this section.
6 A-3855-15T3

Drug Court statutorily[,]" and a "suitable treatment facility" was

available to satisfy N.J.S.A. 2C:35-14(a)(8). However, in 

evaluating N.J.S.A. 2C:35-14(a)(9), the court was troubled by the 

violent nature of the offense as well as defendant's psychiatric 

history as recounted in the TASC evaluation and determined that 

"on balance, . . . the mental health concerns outweigh[ed] the 

substance abuse issues[,]" making Drug Court inappropriate for 

defendant. The court noted:

The report indicates that the defendant has 

experienced psychological problems during the 

past 30 days including serious anxiety, 

tension, hallucinations, trouble 

understanding, concentrating or remembering. 

During her lifetime she has suffered serious 

depression, serious anxiety, hallucination 

where she sees things, hears things, trouble 

controlling her violent behavior, she had been 

court-mandated to attend anger management even 

before this incident occurred, thoughts of 

suicide and she has attempted suicide in the 

past. Indeed, she reported experiencing 

psychological or emotional problems 30 days 

within the past 30 days, so we have this very 

violent situation, we have that history of 

psychological problems.

 

The court acknowledged the hardship imprisonment would have 

on defendant, "especially in light of the fact that the defendant 

has a daughter who does rely upon her so heavily." However, the 

court denied defendant's appeal based upon "the violent nature of 

this crime," and "the significant mental health history." The 

court explained:
7 A-3855-15T3

[A]lthough I commend the defendant for 

recognizing her need . . . for treatment to 

combat her substance abuse addiction[,] I 

cannot escape the conclusion that to permit 

her to participate in Drug Court would likely 

pose a danger to the community. Even if we 

were to take all the facts as set forth by the 

defendant, that this was an act of self[-

]defense, it's 3:30 in the morning, 

undoubtedly somebody is going to be 

encountered. The defendant is wearing latex 

gloves, she has a box cutter in her hand. If 

she didn't encounter A.D.[,] she probably 

would have encountered S.H. and the likelihood 

of some serious injury was very, very high.2

So although the plea might have been 

ultimately to a second[-]degree burglary[,] 

there was a significant element of violence 

involved. So again, it's a one time criminal 

record but it was a very violent offense 

nonetheless. The victim was very 

significantly injured and it was, as I said, 

a very violent offense and the Drug Court 

program is for the nonviolent offender[.]

This appeal followed. 

On appeal, defendant raises the following argument for our 

consideration:

POINT I

THE DRUG COURT JUDGE ERRED IN DENYING 

[DEFENDANT'S] DRUG COURT APPEAL.

 

2 Notably, although defendant had no prior indictable convictions, 

in the year prior, defendant had been convicted of simple assault 

in a domestic violence incident involving S.H. Defendant received 

a suspended jail sentence and was sentenced to a one-year 

probationary term conditioned upon undergoing anger management and 

having no contact with S.H.
8 A-3855-15T3

"Drug Courts are specialized courts within the Superior Court 

that target 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) (citing Administrative Office 

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

Jersey (July 2002)). There are two general ways to be admitted 

to drug court. See State v. Maurer, 438 N.J. Super. 402, 413 

(App. Div. 2014). Defendants admitted to Drug Court who are 

subject to sentencing with a presumption of incarceration and who 

satisfy the nine separate factors embodied in N.J.S.A. 2C:35-

14(a), are assigned to Track 1 and required to serve a period of 

"special probation" pursuant to N.J.S.A. 2C:35-14(a). Maurer, 

supra, 438 N.J. Super. at 413. Defendants with drug abuse problems 

who are not subject to a presumption of incarceration are assigned 

to Track 2 and are eligible for Drug Court under the general 

sentencing provisions of the Criminal Code pursuant to N.J.S.A.

2C:45-2. Maurer, supra, 438 N.J. Super. at 413 (citing State v. 

Clarke, 203 N.J. 166, 174-76 (2010)). 

Under a prior version of the statute governing admission to 

Drug Court, "N.J.S.A. 2C:35-14(c) granted the prosecutor the right 

to object to an otherwise qualified defendant's entry into Drug 

Court and, absent a showing of 'gross and patent abuse of [the 

prosecutor's] discretion,' a court could not override that 
9 A-3855-15T3

objection and admit the defendant to Drug Court." Maurer, supra, 

438 N.J. Super. at 414 (alteration in original). However, 

"[s]ubsection (c) was deleted in the 2012 amendments" to the Drug 

Court Statute, thus removing the prosecutor's objection as an 

impediment to the sentencing court's decision to sentence a 

defendant to special probation. Ibid. Therefore, it is clear 

that under the current statutory framework, it is the sentencing 

court, not the prosecutor, who makes the final determination 

regarding an applicant's eligibility for Drug Court. See Ibid. 

"By its action, the Legislature clearly evinced an intention to 

rely on a judge's discretion and ability to better determine 

admission without continuing the prosecutor's right to veto." Id.

at 418. While the "'abuse of discretion' standard defies precise 

definition, it arises when a decision 'is made without a rational 

explanation, inexplicably departed from established policies, or 

rested on an impermissible basis.'" Flagg v. Essex Cty. 

Prosecutor, 171 N.J. 561, 571 (2002) (citing Achacoso-Sanchez v. 

Immigration & Naturalization Serv., 779 F. 2d 1260, 1265 (7th Cir. 

1985)).

Here, the court determined that, while defendant pled guilty 

to a qualifying offense for a Track 1 Drug Court application and 

satisfied most of the statutory criteria, defendant's admission 

into Drug Court posed a danger to the community based upon the 
10 A-3855-15T3

violent nature of the offense in conjunction with her mental health 

history. We discern no abuse of discretion in the court's 

decision. Defendant argues that "neither the nature of the offense 

nor [defendant's] mental health history support the conclusion 

that [defendant's] participation in drug court would pose a danger 

to the community[,]" particularly since the court's "finding was 

based entirely on [defendant's] self-reported psychiatric status 

contained in the TASC evaluation." Further, defendant asserts 

that the court "erred in finding that [defendant] presented a 

danger to the community based on the violent nature of the instant 

offense and the fact that [defendant] has had 'trouble controlling 

her violent behavior' in the past[.]" We disagree. 

In determining whether to sentence a defendant to special 

probation, 

the court shall consider all relevant 

circumstances, and shall take judicial notice 

of any evidence, testimony or information 

adduced at the trial, plea hearing or other 

court proceedings, and shall also 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.

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

Here, the court's findings are supported by the "relevant 

circumstances" contained in the record.
11 A-3855-15T3

Affirmed.