NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 3527
- 13T2

STATE OF NEW JERSEY, Plaintiff
- Respondent,

v. GREGORY MAURER, a/k/a GREGORY M. MAVERER, Defendant
- Appellant.

_______________________________ __ _ Argued October 15, 2014

– Decided Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 12
- 10
- 1016, 12
- 11
- 1100, 12
- 11
- 1174 ; and Burlington County , Indictm ent No. 13
- 0 3
- 0 219. Fred B. Last, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Kra kora, Public Defender, attorney ; Mr. Last , of counsel and on the brief). Joseph M. More, Jr., Assistant Prosecutor, argued the cause for resp ondent (Sean F. Dalton, Gloucester County Prosecutor , attorney ; Mr. More , on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D. APPROVED FOR PUBLICATION December 17, 2014
APPELLATE DIVISION

December 17, 2014A - 3527
- 13T2 2 We granted defendant Gregory Maurer leave to appeal from the Law Division's January 15, 2014 denial of his appeal from the prosecutor's rejection of his application for sentencing into Drug Court . The prosecutor's and the court's decision s

were based solely on defendant's prior conviction for a weapons crime and ostensibly made in accordance with N.J.S.A. 2C:35
- 14 ( t he Drug Court Statute) 1 and the Administrative Office of the Courts' (AOC) "Manual for Operation of Adult Drug Courts in New Jersey" (July 2002) (Manual). On appeal defendant argues:

I. THIS C OURT MUST [] REVERSE TO CORRECT A SERIOUS ANOM [ A ] LY IN DRUG COURT ADMISSION REQUIREMENTS, TO FOSTER MORE CONSISTENT SENTENCING, AND TO SEE THIS DEFENDANT SENTENCED TO DRUG TREATMENT AND NOT PRISON.
A. Sentencing under the Criminal Code is offense [ - ] based.
B. Sentencin g in Drug Court remediates the harshness of offense
- based sentencing.
C. The standards for admitting Track II defendants are now functionally more restrictive than those for Track I defendants, creating an anomal y and unacceptable disparities in sentencing requiring that they be modified to conform to the current law as

1 The statute do es not mention a "drug court," but rather establishes "special probation " applicable for certain drug offenses, as discussed further , infra .A - 3527
- 13T2 3 other requirements have by practice.
D. Defendant, who would qualify for Track I admission but for the fact that he is not charged with crim es sufficiently serious for Track I admission, should be admitted for fulfilling the historically more stringent requirements for Track I admission.
E. The facts underlying the prior conviction do not implicate the Manual's exclusion.
F. D efendant's participation in the Drug Court would not pre s en t danger to the community. In response, the State argues the court properly rejected
defendant's Drug Court application because the court's decision was "consistent with current Drug Court sentencing guidelines as outlined in N.J.S.A. 2C:35
- 14 and in the [] Manual" as defendant
was "not legally elig ible for Drug Court special probation ." The parties' dispute required us to consider their arguments in light of the record , as well as the history of New Jersey's successful Drug Court program , the application of the Manual's guidelines , and the Drug Co urt statute as recently
amended. Having done so, w e reverse the J anuary 15, 2014 order
and remand the matter to the Law Division for furtherA - 3527
- 13T2 4 consideration of defendant's application consistent with our opinion.
I. At the time of his April 2013 Drug Court application,
defendant was twenty - five years old , had a history of several
contr olled dangerous substance (CDS) offenses and was the subject of four pending, separate indictments. In 2012, a Gloucester County Grand Jury returned one indictment , charging
defendant with third
- degree possession of CDS (oxycodone),
N.J.S.A. 2C:35
- 10 (a)(1) ; another indictment , charging him with
two counts of third
- degree possession of CDS , N.J.S.A. 2C:35
- 10(a)(1) (oxycodone and heroin ); and a third , charging him with third
- degree possession of CDS (cocaine), N.J.S.A. 2C: 35
- 10(a)(1) . In 2013, a Burlington County Grand Jury returned an indictment , charging him with two counts of third
- degree theft by unlawful taking, N.J.S.A. 2C:20
- 3(a); one count of fourth
degree hin dering apprehension, N.J.S.A. 2C:29
- 3(b)(4) ; and one count of third
- degree burglary, N.J.S.A. 2C:18
- 2(a)(1). He had also been charged with the disorderly person offense of possession with intent to use a hypodermic syringe , N.J.S. A 2C:36
- 6(a).
D efendant 's criminal history included crimes related to his drug use. In 2007, he was convicted of possession of CDSA - 3527
- 13T2 5 (cocaine) , senten ced to probation , which he subsequently violated . The reviewing judge found defendant violated probation because he was charged w ith possession of a weapon , N.J.S.A. 2C: 39
- 5(b) and imposed a term of imprisonment. The
arrest that led to the charge occurred on December 1, 2008 , while police officers were conducting a surveillance of an area in Camden kn o wn for its open drug activity. P olice observed
defendant arrive by car , driven by another , and engage in a suspected drug transaction. When police detained defendant , he
stated a gun was in the vehicle , but it did not belong to him.
The police locate d the gun, determined it had been stolen and charged defendant with possession of the handgun and hollow point bullets , as well as receiving stolen prop erty. According to police, while defendant and the driver were waiting to be processed , defendant tried to convince the drive r to take responsibility for the weapon as defendant was concerned he could get a lengthy prison term because of his prior record , while the driver would not receive as harsh a sentence because he had no prior convictions. Consequently, police charged
defendant wit h witness tampering , N.J.S.A. 2C: 28
- 5.
D efendant pled guilty to a second
- degree weapons possession
offense and was sentenced , in the third
- degree range, to a three
- year prison term, subject to a one
- year period of paroleA - 3527
- 13T2 6 ineligibility, pursuant to the "Gr aves Act," N.J.S.A. 2C:43
- 6,

- 6.2. The remaining charge was dismissed. Following release from prison, defendant committed three CDS offenses prior to the return of the Gloucester and Burlington C ounty indictments . Each of these offenses was remanded to municipal court for disposition. While awaiting disposition, defendant was held in the Burlington County jail, where he enter e d into substance abuse counselling programs, including Narcotics Anonymous . He posted bail on November 8, 2013 and a pplied for admission to Drug Court in Gloucester County. Defendant asserts his attorney secured a commitment to consolidate the Burlington County charges with the Gloucester County charges, if he w ere admitted into Drug Court. When defendant's appeal of the prosecutor's denial of his request for Drug Court admission in Gloucester County was considered, defendant was not only receiving counselling, but also employed as an outreach counselor for a drug treatment facility in Florida. The Gloucester County p rosecutor rejected
defendant's application, citing hi s prior weapons offense , and
d efendant a ppealed to the Law D i vis i on . On January 15, 2014, the court considered the parties ' arguments and denied defendant's appeal. In a written decision, the judge revi ewed the criteria for admission into Drug CourtA - 3527
- 13T2 7 under the Drug Court S tatute and the Manual. He found "defendant is a Track Two [ 2 ] applicant because he [wa] s charged with 3rd degree crimes for which there are no mandatory extended terms of imprisonment." However , the court also found " [ t ] his
defendant was previously convicted of the crime of possession of a handgun, and is therefore ineligible for the Drug Court program." This appeal followed.
II. "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 ) ( quoting
Manual , supra , at 3 ) . The Supreme Court has repeatedly recognized the positive role Drug Courts play in our society . State v. Clarke , 203 N.J. 166, 174 (2010) ( citing Meyer , supra , 192 N.J. at 429 ) .

[Drug C] ourts address the seemingly intractable social problem pres ented by the scourge of drugs that has devastated

2 As discussed infra , the Manual describes two tracks through which defendants can be sentenced into Drug Court : one under the statutor y criteria in the Drug Court Statute (T r ack One) and the other (T r ack Two) under the Manual's criteria for defendants who are not eligible under the sta t ute .A - 3527
- 13T2 8 countless families and is the source of so many collateral crimes. What distinguishes Drug C ourts from other courts is the oversight a nd personal involvement of the [D]rug [C] ourt judge in the treatment pr ocess. A team approach is a distinctive feature of Drug Court. The judge leads court staff, probation officers, treatment counselors, substance abuse evaluators, and the prosecutor and defense attorney to monitor a participant's recovery . Participants in [D]rug [C] ourt programs are subject to intensive supervision, frequent drug testing, and regular court appearances, combined with treatment and recovery services. Drug Courts have achieved notable success. Wit hin three years of finishing a [D] rug [C] ourt program, only four teen percent of [D] rug [C] ourt graduates were arrested for new indictable crimes. In comparison, a fifteen
- state study found that 67.5 percent of offenders released in 1994 had been rearrested within three years of relea se. Ninety
- five percent of drug tests taken by New Jersey program participants produced negative results, and at the time of graduation, ninety
- three percent of the pa rticipants were employed. Drug [C] ourt programs are credited with helping participants g ive birth to drug
- free babies and re gain custody of their children. Additionally, the State realizes su bstantial cost
- savings through [D]rug [C] ourt programs. The average cost per year to house an inmate in state prison is $34,218 compared to $17,266 to g ive that same offender the rehabilitative services of Drug Court, including six months of in
patient treatment .A - 3527
- 13T2 9 Those few statistics sh ow the obvious benefits of our [D] rug [C] ourt programs. [ 3 ] [ Meyer , supra , 192 N.J. at 429
- 30 (citations and internal q uotation marks omitted ) .] The executive and legislative branches have also recognized
the success and value of the Drug Court program . See Preamble to Executive Order No. 83 dated November 28, 2011, "Creation of
the Governor's Task Force on Recidivism Re duction," 44 N.J.R.

3 Statistics from the AOC through December 2013 reflect the Drug Court's success:

A) Total number of participants enrolled in the New Jersey adult drug court program since 4/1/02 14,783 B) Number of current (active, non fugitive) participants in the program 5,510 C) Number of participants who have successfully commenced and are currently in the final phase of the program 601 D) Number of participants successfully graduated from all phases of the program 3,400 E) Statewide One
- Year Participant Retention Rate F) Statewide Program: (4/1/02 to present) Cumulative Rate of Program Retention 83.4% 57.2% G) Since 4/1/02, percentage of participants African American: Caucasian: Hispanic/Latino: Other: 42% 47% 9% 2% H) Percentage of active participants who are full
- time employed 68% I) Percentage of participants employed at the time of graduation 90% J) Percentage of negative drug tests (over 10,000 tests conducted per month) 96% K) Number of drug free babies born to participants (Total of 308 including pilot program statistics) 286 L) Number of parents who regained custody of their minor children due to their participation in the program (Total of 174 children including pilo t program statistics) 144
M) Percentage of graduates who improved their level of education or vocational skills while in the program 29% N) Total amount of fines, fees and penalties paid by drug court graduates while in the program. $6.74 million O) Drug Court Graduates w/in 3 years of graduation Current rate of re
- arrest in NJ for new indictable crimes Current rate of re
- conviction in NJ for new indictable crimes Current rate of new sentences to NJ state prison 14% 5% 2% P) Drug Court Graduates at any time since graduation. (Some participants graduated over 10 years ago) Total recidivism rate (re
- conviction of NJ indictable crime) for all graduates at any time since graduation: 8%
Pilot Drug Court Programs were operating before 4/1/02 in Camden, Essex, Mercer, Passaic and Union Counties. SOURCE: Administrative Office of the Courts, Drug Court Unit, Trenton, NJ, 2010. F or more information call 609
- 292
- 3488A - 3527
- 13T2 10 3(a) (January 3, 2012) (" New Jersey's Drug Court . . . helps to achieve the overriding goal of the New Jersey Code of Criminal Justice to protect public safety by re ducing the incidence of crime . . . . ") and the legislative history of the 2012
amendment s to the Drug Court Statute discussed , infra .

III. Our review of a trial court's application of the Drug Court
Statute and Manual to a defendant involves a question of law. "Our standard of review on legal issues is de novo and we owe no deference to 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) (quoti ng Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140
N.J. 366, 378 (1995)).
The Drug Court S tatute creates a "special probation " as compared to r egular probation , which has long been an authorized disposition under the New Jersey Code of Criminal Ju stice (Code), N.J.S.A. 2C:1
- 1 to 2C:104
- 9. See N.J.S.A. 2C:43
- 2(b )( 2) ; N.J.S.A. 2C:35
- 14. In general terms, a regular probationary sentence is typically imposed for third
- or fourth
- degree offenses , which do not contain a specific provision requiring a st ate prison
sentence. For such offenders with no prior criminal record,A - 3527
- 13T2 11 there is a presumption against incarceration, and for such offenders with a prior record, there is no presumption either for or against a custodial sentence. N.J.S.A. 2C:44
- 1(e); Meye r , supra , 192 N.J. at 433 n.5. Where there is no presumption either for or against incarceration, the court must

" weigh the aggravating and mitigating factors enumerated in
N.J.S.A. 2C:44
- 1(a) and (b) " in making the "in
- out" decision, that is, whether to impose a state prison sentence or a probationary sentence. Clarke , supra , 203 N.J. at 176; Meyer , supra , 192 N.J. at 433 n.5. As we recently explained:

For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44
- 1(d), which is rarely overcome. State v. Soricelli , 156 N.J. 525, 532
- 34 (1999). Thus, for such offenders, a regular probationary sentence is almost never approp riate under the Code's general sentencing provisions. Special probation is another authorized disposition under the Code. It is not contained in N.J.S.A. 2C:43
- 2(b)(2), but in N.J.S.A. 2C:35
- 14. The term "special probation" first appeared in that sectio n when it was amended in 1999. Meyer , supra , 192 N.J. at 434 . . . . [T]hat amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disp osition authorized by th e Code. Special probation is designed to divert otherwise prison
- bound offenders into anA - 3527
- 13T2 12 intensive and highly specialized form of probation designed to " address in a new and innovative way the problem of drug
- dependent offenders caught in a never
- ending c ycle of involvement in the criminal justice system. " Id. at 434
- 35. Thus, the Legislature created special probation as a disposition aimed specifically at prison
- bound offenders, who would not be eligible for regular probation. [ State v. Bishop , 429 N.J. Super. 533 , 539
- 40 (App. Div. ) , certif. granted , 216 N.J. 14 (2013) . ] The basic objective of the Drug Court S tatute " is to allow deserving prison
- bound addicted offenders the opportunity for

' special probat ion,' an opportunity to recover from the thr oes of their addiction and the cycle of their involvement with the criminal justice system. " Meyer , supra , 192 N.J. at 428 . It

" does not suggest that addicted offenders whose crimes do not mandate a prison sentence and who are eligible for probation
unde r N.J.S.A. 2C:45
- 1 should not be accorded the same judicial resources to spur their rehabilitation as those who are facing incarceration. " Ibid.

" Surely, if [ a ] defendant is to receive a probationary term conditioned on in
- patient treatment and intensive supervision, it is preferable th [ e ] defendant be monitored within a specialized court with personnel who have the particularized skills and training to maximize the prospect of the offender's rehabilitation. " Ibid. For that reason the Court cre ated aA - 3527
- 13T2 13 second track for admission to "special probation" as defined in
the Manual for "non - prison bound offenders." Manual , supra , at
9. The procedures for admission to and participation in Drug Court is set forth in th e Manual because "D rug C ourts are a creature of the judiciary . . . . " Clarke , supra , 203 N.J. at
174 ( citation and internal quotation marks omitted) . Requirements for admission to Drug Court are clearly defined.

The [] Manual outlines two separate tracks for admission into Drug Court. The applicant must either meet the requirements for special probation pursuant to N.J.S.A. 2C:35
- 14, [T] rack [O] ne, or otherwise be eligible under other sections of t he Code of Criminal Justice[, T]rack [T] wo. Under the first 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 separat e factors. A presumption of imprisonment applies to an applicant who is charged with a first or second
- degree offense. If the applicant is successful in meeting the re quirements for admission under [T]rack [O] ne, the judge will then impose a five
- year pe riod of special probation. Admission under this track is generally obtained with the prosecutor's consent. If the prosecutor does not consent, the trial judge may only admit the applicant underA - 3527
- 13T2 14 [T] rack [O] ne if the judge finds a gross and patent abuse of prosecutorial discretion. [ 4 ] The second track permits applicants to be admitted into Drug Court under the general sentencing provisions of the Code of Criminal Justice. An applicant is eligible for Drug Court sentencing under this track if:
a. the person has a drug or alcohol dependence, as determined by a diagnostic assessment and substance abuse treatment and monitoring is likely to benefit the person; and b. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, 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 c. the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense; and d. no danger to the community is likely to result from the person being placed on probation. [ Id. at 174
- 76 ( citations and inte rnal quotation marks omitted ). ]

4 As discussed infra , the 2012 amendment s to the S tatu t e deleted the prosecutor's ability to bar admission by withholding consent.A - 3527
- 13T2 15 Based on the quantifiable success of Drug Courts, the Legislature broadened the scope of special probation th r ough amendments to the statute adopted in 2012. L. 2012, c. 23. Evidence of the L egislature's intention to lib eralize admission to Drug Court is found in the legislative history for the 2012 amendments. For example, the Legislature contemporaneously
enacted N.J.S.A. 2C:35
- 14.1 and
- 14.2, effective July 1, 2013 , which permit a court to sentence a qualified offende r under the Drug Court Statute even if the defendant does not seek admission, and even if the defendant is a third
- degree offender , who had been previously "convicted of a crime subject to the presumption of imprisonment or that resulted in imposition of a State prison term." Also, as to the Drug Court Statute itself, a Senate committee stated the statute was being amended "in order t o permit additional offenders who may benefit from the program to be diverted into the program instead of being sentenced to a term of incarceration . . . . [by giving] a court . . . greater discretion to place the person on special probation, even if one or more of the enumerated discretionary factors was not met by a particular defendant." Senate Budget and Appropriation Committee, Statement to S. 881 (April 3, 2012).A - 3527
- 13T2 16 The 2012 amendment s directly altered eligibility requirements and procedures for cons ideration of Track One
defendants . For example, prior to the amendments, N .J.S.A.
2C:35
- 14(c) granted the prosecutor the right to object to an otherwise qualified defendant's entry into D rug C ourt and, absent a showing of " gross and patent abuse of [the
p rosecutor's] discretion, " a court could not override that objection and admit the defendant to Drug Court . S ubs ection (c) was deleted in the 2012 amendments. Also, the amendment s removed the express ban on admission of those defendants who committed either second
- degree robbery or burglary offenses . L. 2012, c. 23 , S.881, §5 . Despite the Legislature's clear intention to broaden Drug Court access, the Manual has not similarly been modified and remains as originally released in 2002. As a result, its admission c riteria for Track Two candidates continues to bar
defendants who have a criminal history that include convictions
for second
- degree robbery involving a firearm, even though under
the statute as amended an offender who is at pres ent sentenced
for the very same crime may be admitted to Drug C ourt if otherwise qualified.A - 3527
- 13T2 17 I V . Defendant argues " [e] ligibility for admission for defendants charged with less serious crimes is now . . . more stringent than for those charged with more serious crimes," which is "inconsistent with the sentencing philosophy of the Criminal Code and visits an injustice upon this class of defendants." He claims the court's categorical denial of his request for Drug Court admission was contrary to the clear language of N.J.S.A. 2C:35
- 14 , especially in light of the recent
amendment s . As noted, defendant was barred from admission to Drug Court
based on the Manual's requirements for Track Two admission , which prohibits defendants who possessed a firearm "at the time of the present offense [or if they have a ] history of possession of a fireman during [ the commission ] of an offense ." Manual , supra , at 16 (emphasis added). This condition is more restrictive than the similar requirement for Track One offenders who commit a more serious offense. Ibid. Under the s tatute, a Track One offender is eligible for Drug Court if "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 ." I d . at 11 (emphasis added) . A more serious offenderA - 3527
- 13T2 18 may , therefore, have a prior conviction for a weapons charge and still be eligible for Drug Court. Drug Courts were created by the Supreme Court through a directive. 5 T hese specialized courts are operated as "creatures" of our court system. The question we are therefore confronted with is whether the Legislature's recent amendment s to the
statu t e suggest a need for amendments to the admission cri teria
for Track Two eligibility. We believe there is such a need. The decision to alter or otherwise deviate from a directive's requirements because of a legislative enactment

5 On July 22, 2002 , then dir ector of the AOC, Hon. Richard J . Wi l liams , issued directive 0 2
- 02 introducing the Manual , which was only modif i ed in 2004 to address the transfer of supervision of participants from one county to another . See Dir. 14
- 04 . Notably, the 2002 directive stated (emphasis added) :

New Jersey is currently in a process of expansion and standardization of drug courts. The [] Manual is a document that will be evolving over the next few years . . . . The [] Manual also details program eligibility criteria . . . . The application of uniform statewide eligibility criteria is critical to operating the program equitably thro ughout the State . . . . As noted, while the [] Manual is now being promulgated for immediate statewide use, portions remain under ongoing development and refinement . . . . As specific standards or procedures are developed and approved . . . [it] will be supplemented . . . .A - 3527
- 13T2 19 involves a balancing of the powers reserved to each branch of government. The need for striking a balance is clear from our constitution's recognition : "The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law , the practice and procedure in all such
courts." N.J. Const. a rt. VI, § 2 , ¶ 3 (emphasis added). "'[S]ubject to law' mean[s] substantive law, such as legislation and the common law, as opposed to pleading and practice." In re P.L. 2001, Chapter 362. , 186 N.J. 368 , 380 (2006) (citing Winberry v. Salisbury , 5 N.J. 240, 258 , cert. denied , 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950)). We have previously observed "[w] ith regard to the binding
effec t of administrative directives . . . that in addition to the Supreme Court's constitutional authority to ' promulga te rules of administration as well as practice and procedure, . . . the Chief Justice, as administrative head of the court system, can promulgate binding directives either directly or through the Administrative Director of the Courts. ' " Williams v. State , 375 N.J. Super. 485, 510 (App. Div. 2005) (quoting State v. Linares , 192 N.J. Super. 391, 397 (Law Div. 1983) ) , aff'd , In re P.L. 2001, Chapter 362 , supra , 186 N.J. at 368. However, "[ t ] here is no question that the three branches of government do not sta nd in isolation from each other[,]" i d. at 512, andA - 3527
- 13T2 20 [i]n the twilight area between practice and procedure and substantive law, [the Supreme Court] in the spirit of comity has attempted to accommodate legitimate expressions of legislative authority and has shared responsibility with the Legislature in key areas of joint concern. See , e.g. , N.J.S.A. 2C:43
- 12 to
- 22, R. 3:28, and [ State v. ] Leonardis , [] 73 N.J. [360,] 374
- 76 [(1977)] (illustrating legislative and judicial cooperation in creation and impleme ntation of pretrial intervention program

– diversionary program for first
- time, non
violent offenders). [ In re P.L. 2001, Ch. 362 , supra , 186 N.J. at 380 n. 1 ]. Illustrative of this point is the Court's discussion in Leonardis , supra , about the overlapping nature of the Pret rial Intervention Program (PTI) . T he late Justice Morris Pashman pointed out that judicial review must always be available to

" check only the most egregious examples of injustice and unfairness , " which might occur in the adm inistration and i mplementation of joint judicial
- legislative programs involving the administration of justice , stating

[o] ur experiences with admission procedures are limited. We intend to continue our supervisory role over the operation of this program a nd the legal determinations of reviewing courts and local officials . . . . By their very nature, the guidelines place primary responsibility for evenhanded administration of the programs in the hands of the prosecutors and the program directors. Judicia l review should be available to check only the most egregious examples of injustice and unfairness.A - 3527
- 13T2 21 [ Leonardis , supra , 73 N.J. at 383
- 84 ( citations and internal quotation marks omitted).]
T he authority to alter existing substantive law , court rules and directives rest s firmly with the Legislature and the Supreme Court. In re State in Interest of A. C. , 115 N.J. Super . 77, 84 (App. Div. 1971) . "As an intermediate appellate tribunal, we adhere to the decision of our Supreme Court in
thos e cases. Any departure should be undertaken 'by the court of last resort, and not by the Appellate Division.'" Ibid. ( quoting Casale v. Hous. Auth. , City of Newark , 42 N.J. Super . 52, 62 (App. Div. 1956)). A lthough the Supreme Court has
unfettered auth ority to issue and modify its directives, we discern unfairness in this case , especially in light of the legislature's obvious intention to liberaliz e admission to Drug
Court based on the success of the program. Modification of the Manual's guideline s is especially appropriate in a case such as the one before us that involves a claim of disparate treatment in sentencing . " 'Th[ e ] Court often has taken affirmative steps to ensure that sentencing and disposition procedures, whether authorized by statute or court rule, will not produce widely disparate results for similarly situated defendants. ' " State v. Palma , 219 N.J. 584, 593 (2014) (quoting State v. Moran , 202 N.J. 311, 326
- 27 (2010)) . TheA - 3527
- 13T2 22 disparity in this case is highlighted by the fact that now

o ffenders convicted of second
- degree robbery armed with a non
deadly weapon are permitted to enter Drug Court while Track Two offenders like defendant, who recently committed a third
- degree drug offense and years earlier had been convicted of a weapons charge are barred entry. It is simply not fair that defendant's record would disqualify him under one track but not the other. There is no valid policy consideration to support that result and the distinction subverts , rather than supports , the policy
to admit drug
- addicted offenders into the program. Our opinion is supported by the L egislature's decision to remove the prosecutor's ability to object to a defendant's admission to D rug C ourt subject only to proof that his or her
de cision was a patent or gross abuse of discretion. 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 . Our decision does no t, however, result in defendant's automatic admission to Drug C ourt; it only allows his application to be considered despite his earlier weapons offense. On remand, the court must now consider relevant factors specific to defendant, guiding Drug Court adm ission, including his dangerousness to the community while on probation ,A - 3527
- 13T2 23 M anual , supra , at 16 ( A person is eligible if " no danger to the community is likely to result from the person being placed on probation. ") ; whether he is in fact drug dependent; and defendant's entire criminal history, including his weapons conviction , along with any other factor impacting this determination.
Reversed and remanded. We do not retain jurisdiction.