NOT FOR PUBLICATION WITHOUT THE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,

Indictment No. 13-03-0219.

Fred B. Last, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Last, of counsel and on the 

brief).

Joseph M. More, Jr., Assistant Prosecutor, 

argued the cause for respondent (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, 2014
2 A-3527-13T2

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 decisions

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 

(the 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 COURT 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. Sentencing 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 

anomaly and unacceptable 

disparities in sentencing 

requiring that they be modified to 

conform to the current law as 

 

1 The statute does not mention a "drug court," but rather 

establishes "special probation" applicable for certain drug 

offenses, as discussed further, infra.
3 A-3527-13T2

other requirements have by 

practice.

D. Defendant, who would qualify for 

Track I admission but for the fact 

that he is not charged with crimes 

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. Defendant's participation in the

 Drug Court would not present 

 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 eligible 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 Court statute as recently 

amended. Having done so, we reverse the January 15, 2014 order 

and remand the matter to the Law Division for further 
4 A-3527-13T2

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 

controlled 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 fourthdegree hindering 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).

Defendant's criminal history included crimes related to his 

drug use. In 2007, he was convicted of possession of CDS 
5 A-3527-13T2

(cocaine), sentenced to probation, which he subsequently 

violated. The reviewing judge found defendant violated 

probation because he was charged with 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 known for its open drug activity. Police 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 located the gun, determined it had been stolen and 

charged defendant with possession of the handgun and hollow 

point bullets, as well as receiving stolen property.

According to police, while defendant and the driver were 

waiting to be processed, defendant tried to convince the driver

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 with witness tampering, N.J.S.A. 2C:28-5.

Defendant 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 parole 
6 A-3527-13T2

ineligibility, pursuant to the "Graves 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 County 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 entered into substance abuse 

counselling programs, including Narcotics Anonymous. He posted 

bail on November 8, 2013 and applied 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 were 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 prosecutor rejected 

defendant's application, citing his prior weapons offense, and 

defendant appealed to the Law Division.

On January 15, 2014, the court considered the parties'

arguments and denied defendant's appeal. In a written decision, 

the judge reviewed the criteria for admission into Drug Court 
7 A-3527-13T2

under the Drug Court Statute 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 presented 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 

statutory criteria in the Drug Court Statute (Track One) and the 

other (Track Two) under the Manual's criteria for defendants who 

are not eligible under the statute.
8 A-3527-13T2

countless families and is the source of so 

many collateral crimes. What distinguishes 

Drug Courts from other courts is the 

oversight and personal involvement of the 

[D]rug [C]ourt judge in the treatment 

process. 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. Within three years of finishing a 

[D]rug [C]ourt program, only fourteen 

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 

release. 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 

participants were employed. Drug [C]ourt 

programs are credited with helping 

participants give birth to drug-free babies 

and regain custody of their children.

Additionally, the State realizes 

substantial 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 give that 

same offender the rehabilitative services of 

Drug Court, including six months of inpatient treatment.
9 A-3527-13T2

Those few statistics show the obvious 

benefits of our [D]rug [C]ourt programs. [3]

[Meyer, supra, 192 N.J. at 429-30 (citations 

and internal quotation 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 Reduction," 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 pilot 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. For 

more information call 609-292-3488 
10 A-3527-13T2

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 reducing the incidence of 

crime . . . .") and the legislative history of the 2012 

amendments 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) 

(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

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

The Drug Court Statute creates a "special probation" as 

compared to regular probation, which has long been an authorized 

disposition under the New Jersey Code of Criminal Justice 

(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 state prison 

sentence. For such offenders with no prior criminal record, 
11 A-3527-13T2

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); 

Meyer, 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 appropriate 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 section 

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 disposition authorized 

by the Code.

Special probation is designed to divert 

otherwise prison-bound offenders into an 
12 A-3527-13T2

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 cycle 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 Statute "is to allow 

deserving prison-bound addicted offenders the opportunity for 

'special probation,' an opportunity to recover from the throes 

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 

under 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 created a 
13 A-3527-13T2

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 the Manual because "Drug Courts 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 the 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 

separate 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 requirements for admission under 

[T]rack [O]ne, the judge will then impose a 

five-year period 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 under 
14 A-3527-13T2

[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 internal 

quotation marks omitted).]

 

4 As discussed infra, the 2012 amendments to the Statute deleted 

the prosecutor's ability to bar admission by withholding 

consent.
15 A-3527-13T2

Based on the quantifiable success of Drug Courts, the 

Legislature broadened the scope of special probation through 

amendments to the statute adopted in 2012. L. 2012, c. 23. 

Evidence of the Legislature's intention to liberalize 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 offender 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 to 

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). 
16 A-3527-13T2

The 2012 amendments directly altered eligibility 

requirements and procedures for consideration 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 Drug Court and, 

absent a showing of "gross and patent abuse of [the 

prosecutor's] discretion," a court could not override that 

objection and admit the defendant to Drug Court. Subsection (c)

was deleted in the 2012 amendments. Also, the amendments

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 criteria 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 present sentenced 

for the very same crime may be admitted to Drug Court if 

otherwise qualified.
17 A-3527-13T2

IV.

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 

amendments.

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 statute, 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." Id. at 11 (emphasis added). A more serious offender 
18 A-3527-13T2

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 These specialized courts are operated as "creatures" 

of our court system. The question we are therefore confronted 

with is whether the Legislature's recent amendments to the 

statute suggest a need for amendments to the admission criteria 

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 director of the AOC, Hon. Richard J. 

Williams, issued directive 02-02 introducing the Manual, which 

was only modified 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 

throughout 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 . . . .
19 A-3527-13T2

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. art. 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 

effect of administrative directives . . . that in addition to 

the Supreme Court's constitutional authority to 'promulgate 

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 stand 

in isolation from each other[,]" id. at 512, and 
20 A-3527-13T2

[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 implementation 

of pretrial intervention program –

diversionary program for first-time, nonviolent 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 Pretrial 

Intervention Program (PTI). The 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 administration and 

implementation 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 and 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. Judicial review should be 

available to check only the most egregious 

examples of injustice and unfairness. 
21 A-3527-13T2

[Leonardis, supra, 73 N.J. at 383-84

(citations and internal quotation marks 

omitted).]

The authority to alter existing substantive law, court 

rules and directives rests 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 

those 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)). Although the Supreme Court has 

unfettered authority to issue and modify its directives, we 

discern unfairness in this case, especially in light of the 

legislature's obvious intention to liberalize admission to Drug 

Court based on the success of the program.

Modification of the Manual's guidelines 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)). The 
22 A-3527-13T2

disparity in this case is highlighted by the fact that now 

offenders convicted of second-degree robbery armed with a nondeadly 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 Legislature's decision to 

remove the prosecutor's ability to object to a defendant's

admission to Drug Court subject only to proof that his or her 

decision 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 not, however, result in defendant's

automatic admission to Drug Court; 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 admission, 

including his dangerousness to the community while on probation, 
23 A-3527-13T2

Manual, 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.