1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Susan Hyland (A-29-18) (079028)

Argued April 24, 2019 -- Decided June 3, 2019

SOLOMON, J., writing for the Court.

To impose a Drug Court sentence, a sentencing judge must ensure that the nine 

requirements set forth in N.J.S.A. 2C:35-14(a) are satisfied. In this appeal, the Court 

considers whether a judge’s finding under N.J.S.A. 2C:35-14(a)(9) -- that a defendant 

would not be a danger to the community while on special Drug Court probation -- may 

render a sentence appealable by the State as an illegal sentence.

On a night in March 2016, defendant, who was driving an automobile, struck and 

killed sixteen-year-old Q.T. and then fled the scene. She was indicted on three counts. 

The Camden County Prosecutor’s Office recommended against defendant’s admission 

into Drug Court. According to the prosecutor, because defendant left the scene of a fatal 

accident and failed to help Q.T., she was not the type of non-violent offender intended for 

Drug Court and would be a “danger to the community.” N.J.S.A. 2C:35-14(a)(9).

The judge determined over the State’s objection that defendant was legally eligible 

for a special probation Drug Court sentence. The judge acknowledged defendant’s “slew 

of arrests and convictions” -- six in Superior Court and eleven in Municipal Court -- and 

stressed that defendant had made a “terrible choice” after striking Q.T. But the judge did 

not agree that defendant would be a danger to the community if admitted to Drug Court.

Defendant pled guilty to all three charges in the indictment. During sentencing, 

the judge analyzed the nine statutory factors required to impose a Drug Court sentence 

under N.J.S.A. 2C:35-14(a), found that defendant was “likely to respond affirmatively to 

Drug Court probation,” and sentenced her to concurrent five-year special probation Drug 

Court terms on her convictions.

The State appealed. Finding neither an illegal sentence nor statutory 

authorization, the Appellate Division dismissed the appeal for lack of jurisdiction. 452 

N.J. Super. 372, 389 (App. Div. 2017).

The Court granted the State’s petition for certification. 236 N.J. 110 (2018).
2

HELD: The State may appeal a Drug Court sentence only when the sentencing judge 

makes a plainly mistaken, non-discretionary, non-factual finding under N.J.S.A. 2C:35-

14(a). Because application of N.J.S.A. 2C:35-14(a)(9) requires fact-finding and an 

exercise of the sentencing judge’s discretion, a sentence based on application of that 

factor is not appealable as an illegal sentence.

1. In the context of sentencing, the State has the authority to appeal in two 

circumstances: where there is express statutory authority to do so, or if the sentence 

imposed is illegal. (pp. 9-10)

2. N.J.S.A. 2C:35-14 was enacted in 1987 as part of the Comprehensive Drug Reform 

Act of 1987. The statute permits alternatives to imprisonment -- namely, the imposition 

of special probation Drug Court sentences-- for offenders “subject to a presumption of 

incarceration or a mandatory minimum period of parole ineligibility.” N.J.S.A. 2C:35-

14(a). Where certain statutory requirements are satisfied, and upon notice to the 

prosecutor, the court may place a drug or alcohol dependent person on special probation 

for a term of five years. In 1999, the Legislature amended N.J.S.A. 2C:35-14 and 

expressly authorized the State to appeal the imposition of a special probation Drug Court 

sentence under certain circumstances. The amended statute also permitted the prosecutor 

to “veto” a defendant’s admission to Drug Court. In 2012, the Legislature amended 

N.J.S.A. 2C:35-14 by eliminating both the prosecutorial veto and the State’s right to 

appeal Drug Court sentences. In doing so, the Legislature gave courts greater discretion 

to place the person on special probation. As a result, the State has the right to appeal a 

special probation Drug Court sentence only if it is illegal. (pp. 9-12)

3. There are two categories of illegal sentences: those that exceed the penalties 

authorized for a particular offense, and those that are not authorized by law. Those two 

categories have been defined narrowly, and even sentences that disregard controlling case 

law or rest on an abuse of discretion by the sentencing court are legal so long as they 

impose penalties authorized by statute for a particular offense and include a disposition 

that is authorized by law. Deciding whether defendant’s Drug Court sentence is 

authorized by law necessarily requires an analysis of the nine Drug Court eligibility 

criteria set forth in N.J.S.A. 2C:35-14, which the court must find on the record before a 

defendant may be sentenced to special probation. Certain eligibility criteria, such as 

N.J.S.A. 2C:35-14(a)(4) and (9), are discretionary determinations requiring the 

sentencing judge to engage in fact-finding. Here, for example, the judge applied 

defendant’s unique characteristics and circumstances and determined that she was 

amenable to treatment and not a risk to the community. Even if the court abused its 

discretion by making a clear error in judgment, it did not impose an illegal sentence by 

finding that defendant satisfies N.J.S.A. 2C:35-14(a)(9). Because sentences authorized 

by law but premised on an abuse of discretion are not illegal, the State may not appeal a 

special probation Drug Court sentence based on the judge’s finding of one or more of 

N.J.S.A. 2C:35-14(a)’s discretionary factors. (pp. 12-15)
3

4. For future guidance, the Court adds that not all of the eligibility criteria set forth in 

N.J.S.A. 2C:35-14(a) necessitate fact-finding or an exercise of discretion by the 

sentencing judge. Rather, some factors -- for example, N.J.S.A. 2C:35-14(a)(1), (6), (7), 

and (8) -- require objective, per se legal determinations. Because the sentencing court 

must find all nine factors under N.J.S.A. 2C:35-14(a) before imposing a special probation 

Drug Court sentence, improper application by the sentencing judge of one of the 

nondiscretionary factors would constitute a sentence that is not imposed in accordance 

with law. Such a sentence would be appealable as illegal. (p. 16)

5. Because defendant’s sentence is not illegal and an appeal is not expressly authorized 

by statute, the Court has no jurisdiction to consider the State’s appeal of defendant’s 

special probation Drug Court sentence. (p. 17)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, 

FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.
1

SUPREME COURT OF NEW JERSEY

A-29 September Term 2018

079028

State of New Jersey,

Plaintiff-Appellant,

v.

Susan Hyland,

Defendant-Respondent.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

452 N.J. Super. 372 (App. Div. 2017).

Argued

April 24, 2019

Decided

June 3, 2019

Jennifer E. Kmieciak, Deputy Attorney General, argued 

the cause for appellant (Gurbir S. Grewal, Attorney 

General, attorney; Jennifer E. Kmieciak, of counsel and 

on the briefs, and Linda A. Shashoua, Camden County 

Assistant Prosecutor, on the briefs).

Tamar Y. Lerer, Assistant Deputy Public Defender, 

argued the cause for respondent (Joseph E. Krakora, 

Public Defender, attorney; Tamar Y. Lerer, of counsel 

and on the briefs).

JUSTICE SOLOMON delivered the opinion of the Court.
2

To impose a Drug Court sentence, a sentencing judge must ensure that 

the nine requirements set forth in N.J.S.A. 2C:35-14(a) are satisfied. In this 

appeal, we are called upon to determine whether a judge’s finding under

N.J.S.A. 2C:35-14(a)(9) -- that a defendant would not be a danger to the 

community while on special Drug Court probation -- may render a sentence 

appealable by the State as an illegal sentence. 

On a late night in March 2016, defendant Susan Hyland struck and killed 

sixteen-year-old Q.T. as he walked across a roadway.1 Defendant fled the 

scene but was ultimately apprehended by the police. While in custody, 

defendant confirmed that she was the driver of the vehicle that struck Q.T. and 

admitted that she had consumed a half-pint of vodka earlier that day. 

Following a grand jury indictment, a substance abuse evaluation 

reported that defendant was clinically eligible for Drug Court. After hearing 

oral argument, the trial court concluded, over the State’s objection, that 

defendant was also legally eligible for Drug Court under N.J.S.A. 2C:35-14. 

Defendant pled guilty to second- and third-degree charges, including 

knowingly leaving the scene of a fatal motor vehicle accident. The judge 

sentenced her to concurrent five-year special probation Drug Court terms. The 

State appealed, arguing that the sentencing judge improperly applied N.J.S.A. 

 

1

 The child’s name has been redacted in the record. 
3

2C:35-14(a)(9) because defendant’s participation in Drug Court would present 

a risk to public safety. The Appellate Division dismissed the State’s appeal, 

finding that the Drug Court sentence was not illegal and, therefore, not 

appealable. 

We conclude that the State may appeal a Drug Court sentence only when 

the sentencing judge makes a plainly mistaken, non-discretionary, non-factual 

finding under N.J.S.A. 2C:35-14(a). Because application of N.J.S.A. 2C:35-

14(a)(9) requires fact-finding and an exercise of the sentencing judge’s 

discretion, a sentence based on application of that factor is not appealable as 

an illegal sentence. We therefore affirm as modified the judgment of the 

Appellate Division. 

I.

A.

According to an accident report created by the Pennsauken Township 

Police Department’s Traffic Safety Unit, on a night in March 2016, defendant, 

who was driving an automobile, struck and killed sixteen-year-old Q.T. after 

he climbed over the concrete median on Route 130. Defendant fled the scene. 

A nearby gas station attendant heard the impact, saw Q.T. lying face-down in 

an adjacent parking lot, and called the police. 
4

While police surveyed the scene, defendant’s niece, who was in 

defendant’s vehicle when she struck Q.T., called 9-1-1 to report the incident 

and identified defendant as the driver. Law enforcement traced the phone call 

to an address in Camden and found a vehicle with heavy front, hood, and 

windshield damage. Officers located defendant inside the home, where she 

admitted her involvement in the hit-and-run. According to the apprehending 

officers, defendant exhibited multiple signs of intoxication.

Police arrested defendant and transported her to police headquarters, 

where she confirmed that she was the driver of the vehicle that struck and 

killed Q.T. Defendant explained that she fled the scene because her driver’s 

license had been “suspended for a long time.” She also admitted that she had 

consumed a half-pint of vodka earlier that day.

B.

A Camden County Grand Jury indicted defendant for second-degree 

knowingly leaving the scene of a fatal motor vehicle accident, N.J.S.A. 2C:11-

5.1; third-degree causing death while driving with a suspended or revoked 

license, N.J.S.A. 2C:40-22(a); and third-degree endangering an injured victim, 

N.J.S.A. 2C:12-1.2(a). The Camden County Prosecutor’s Office recommended 

against defendant’s admission into Drug Court. According to the prosecutor, 

because defendant left the scene of a fatal accident and failed to help Q.T., 
5

defendant was not the type of non-violent offender intended for Drug Court 

and would be a “danger to the community.” N.J.S.A. 2C:35-14(a)(9). 

The court ordered defendant to undergo a substance abuse evaluation, 

which revealed that defendant suffered from five substance abuse disorders. 

The evaluator thus concluded that defendant was clinically eligible for 

admission into Drug Court. Following oral argument, the judge determined 

over the State’s objection that defendant was legally eligible for a special 

probation Drug Court sentence under N.J.S.A. 2C:35-14. The judge 

acknowledged defendant’s “slew of arrests and convictions” -- six in Superior 

Court and eleven in Municipal Court -- and stressed that defendant had made a 

“terrible choice” after striking Q.T. But the judge did not view those facts to 

establish that defendant would be a danger to the community if admitted to 

Drug Court. 

Defendant pled guilty to all three charges in the indictment, and the State 

reserved the right to object to defendant’s admission into Drug Court at 

sentencing. During sentencing, the judge merged defendant’s third-degree 

endangering-an-injured-victim conviction with her conviction for seconddegree knowingly leaving the scene of a fatal motor vehicle accident. 

Analyzing the nine statutory factors required to impose a Drug Court sentence 

under N.J.S.A. 2C:35-14(a), the judge found that defendant was “likely to 
6

respond affirmatively to Drug Court probation” and sentenced her to

concurrent five-year special probation Drug Court terms on her convictions. 

The State appealed, and the Appellate Division stayed defendant’s sentence 

pending review of the appeal.

C.

Before the Appellate Division, the State argued that the sentencing 

court’s error in assessing defendant’s risk to the community under N.J.S.A. 

2C:35-14(a)(9) rendered defendant’s Drug Court sentence illegal and 

warranted reversal. Alternatively, the State contended that N.J.S.A. 2C:44-

1(f)(2) -- which permits the State to appeal non-custodial or probationary 

sentences for first- or second-degree offenders -- expressly authorizes its 

appeal of defendant’s Drug Court sentence.2 In response, defendant argued 

that because her sentence was not illegal, the Appellate Division lacked 

jurisdiction to address the merits of the appeal. 

Highlighting a 2012 amendment to N.J.S.A. 2C:35-14 that repealed a 

provision granting the State the authority to appeal a Drug Court sentence, the 

Appellate Division found “an unequivocal expression of the Legislature’s 

intent to deprive the State of statutory authority to appeal special probation 

 

2

 The State now agrees that N.J.S.A. 2C:35-14 removes the presumption of 

incarceration otherwise applicable to a defendant under N.J.S.A. 2C:44-1(d). 
7

Drug Court sentences.” State v. Hyland, 452 N.J. Super. 372, 389 (App. Div. 

2017). The Appellate Division also found that defendant’s Drug Court 

sentence was not illegal, explaining that “‘mere excessiveness of sentence 

otherwise within authorized limits, as distinct from illegality by reason of 

being beyond or not in accordance with legal authorization,’ does not render a 

sentence illegal.” Id. at 381 (quoting State v. Acevedo, 205 N.J. 40, 46 

(2011)). Because assessment of statutory factors relates to the term of the 

sentence and not its legality, the Appellate Division rejected the State’s 

contention that the court’s alleged error in assessing defendant’s danger to the 

community under N.J.S.A. 2C:35-14(a)(9) rendered the sentence illegal. Id. at 

382. Finding neither an illegal sentence nor statutory authorization, the 

appellate court dismissed the State’s appeal for lack of jurisdiction. Id. at 389. 

The State petitioned this Court for certification, which we granted. 236 

N.J. 110 (2018).

II.

At various times throughout this case, the State has asserted its authority 

to appeal based on both express statutory authority and illegality. Before this 

Court, however, the State contends only that it has the authority to appeal 

defendant’s sentence as illegal. 
8

Additionally, the State argues that the Appellate Division mistakenly 

equated the mandatory statutory eligibility criteria set forth in N.J.S.A. 2C:35-

14(a)(1) to (9) with a court’s assessment of aggravating and mitigating factors

under N.J.S.A. 2C:44-1. Citing State v. Ancrum, 449 N.J. Super. 526 (App. 

Div.), certif. denied, 231 N.J. 222 (2017), the State contends that the Appellate 

Division disregarded the fact that if even one of the Drug Court eligibility

criteria is not met, a Drug Court sentence is plainly illegal. In doing so, the 

State argues that the Appellate Division “categorically insulated” Drug Court 

sentences -- even those predicated on an abuse of discretion -- from any 

appellate review, “rais[ing] serious concerns about uniformity in sentencing.” 

Defendant urges the Court to uphold her sentence on the ground that it is 

legal and therefore not reviewable. She claims that because the Legislature 

explicitly decided to both insulate Drug Court sentences from appeals by the 

State and eliminate the prosecutor’s veto, a finding to the contrary would 

undermine clear legislative intent and eviscerate the Judiciary’s independent 

ability to sentence a defendant to Drug Court. Defendant also claims that the 

State’s argument conflates review for an abuse of discretion with a pure issue 

of law -- the illegality of a sentence. According to defendant, the State’s 

ability to appeal whenever it is dissatisfied with judicial fact-finding at 
9

sentencing “would wreak havoc on our sentencing system [and] upend decades 

of this Court’s jurisprudence.” 

III.

A.

Because the appealability of a sentence is a question of law, our review 

is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 

366, 378 (1995); accord Ancrum, 449 N.J. Super. at 531. Our analysis 

requires that we apply the law, as we understand it, and afford no special 

deference to the trial court’s interpretation of the law or the legal consequences 

that flow from established facts. State v. Miles, 229 N.J. 83, 90 (2017).

We begin our de novo review by acknowledging that the State’s right to 

appeal in a criminal proceeding is limited. See R. 2:3-1(b) (delineating six 

circumstances in which the State may lodge an appeal). In the context of 

sentencing, the State has the authority to appeal in two circumstances. The 

State may appeal where there is “express statutory authority” to do so. State v. 

Roth, 95 N.J. 334, 343 (1984); accord R. 2:3-1(b)(6) (permitting an appeal “as 

otherwise provided by law”). Alternatively, the State may appeal if the 

sentence imposed is illegal. State v. Ciancaglini, 204 N.J. 597, 605 (2011); see

R. 3:21-10(b)(5) (“A motion may be filed and an order may be entered at any 
10

time . . . correcting a sentence not authorized by law including the Code of 

Criminal Justice.”).

B.

Ascertaining whether the State has the statutory authority to appeal 

special probation Drug Court sentences requires a brief analysis of N.J.S.A. 

2C:35-14 and its pertinent legislative history. N.J.S.A. 2C:35-14 was enacted 

in 1987 as part of the Comprehensive Drug Reform Act of 1987, L. 1987, c.

106, § 1, “to craft a new disposition alternative that allowed a court to divert 

prison-bound defendants into an intensively monitored and long-term program 

of rehabilitation,” State v. Meyer, 192 N.J. 421, 434 (2007). Consistent with 

that purpose, the statute permits alternatives to imprisonment -- namely, the 

imposition of special probation Drug Court sentences3-- for offenders “subject 

to a presumption of incarceration or a mandatory minimum period of parole 

ineligibility.” N.J.S.A. 2C:35-14(a); see Meyer, 192 N.J. at 431-32. Where 

certain statutory requirements are satisfied, and upon notice to the prosecutor, 

the court may place a drug or alcohol dependent person on special probation 

 

3 Defendant was admitted to Drug Court through the court’s imposition of a 

sentence of special probation -- one of the two tracks for admission to Drug 

Court. See Meyer, 192 N.J. at 431-32; State v. Bishop, 429 N.J. Super. 533, 

540 (App. Div. 2013).
11

for a term of five years. See generally N.J.S.A. 2C:35-14. The statute, 

however, has not been without significant revision. 

In 1999, the Legislature amended N.J.S.A. 2C:35-14 and expressly 

authorized the State to appeal the imposition of a special probation Drug Court 

sentence under certain circumstances. L. 1999, c. 376, § 2. In addition, the 

amended statute permitted the prosecutor to “veto” a defendant’s admission to 

Drug Court, thereby rendering the defendant ineligible for special probation. 

See N.J.S.A. 2C:35-14(c) (1999). Absent a “gross and patent abuse of [the 

prosecutor’s] discretion” in exercising his veto power, the court could not 

override that objection. N.J.S.A. 2C:35-14(c) (1999). If the court found a 

“gross and patent abuse of [the prosecutor’s] discretion” and sentenced a

defendant to special probation Drug Court over the State’s objection, the 

statute expressly authorized the State to appeal. Ibid. 

In 2012, in an effort “to permit additional offenders who may benefit 

from the [Drug Court] program to be diverted into the program instead of 

being sentenced to a term of incarceration,” S. Budget & Appropriations 

Comm. Statement to S. 881 1 (L. 2012, c. 23), the Legislature amended 

N.J.S.A. 2C:35-14 by removing subsection (c), thereby eliminating both the 

prosecutorial veto and the State’s right to appeal Drug Court sentences, L.

2012, c. 23; compare N.J.S.A. 2C:35-14, with N.J.S.A. 2C:35-14(c) (2011). In 
12

doing so, the Legislature gave courts “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.” S. Budget & Appropriations Comm.

Statement to S. 881 1-2 (L. 2012, c. 23); see State v. Maurer, 438 N.J. Super. 

402, 414 (App. Div. 2014) (describing the 2012 amendment as reflecting “the 

Legislature’s clear intention to broaden Drug Court access”). 

As a result, we agree with defendant -- and the State no longer disputes

-- that the repeal of N.J.S.A. 2C:35-14(c) evinces a legislative intent to divest 

the State of its statutory authority to appeal special probation Drug Court 

sentences. Thus, the State has the right to appeal a special probation Drug 

Court sentence only if it is illegal.

C.

There are two categories of illegal sentences: those that exceed the 

penalties authorized for a particular offense, and those that are not authorized 

by law. State v. Schubert, 212 N.J. 295, 308 (2012). Those two categories of 

illegal sentences have been “defined narrowly.” State v. Murray, 162 N.J. 240, 

246 (2000). For example, while a sentence may be illegal if “it fails to satisfy 

required presentencing conditions,” id. at 247, it is not illegal if the sentencing 

judge fails to state the reasons for imposition of a sentence on the record as is 

required by case law, but otherwise imposes an authorized sentence, Acevedo, 
13

205 N.J. at 47. In other words, even sentences that disregard controlling case 

law or rest on an abuse of discretion by the sentencing court are legal so long 

as they impose penalties authorized by statute for a particular offense and 

include a disposition that is authorized by law. 

Nevertheless, deciding whether defendant’s Drug Court sentence is 

authorized by law necessarily requires an analysis of the Drug Court eligibility 

criteria set forth in N.J.S.A. 2C:35-14. In addition to other requirements,4the 

court must find the following nine criteria on the record before a defendant 

may be sentenced to special probation: 

(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

 The court must also determine that a defendant was neither convicted of nor 

adjudicated delinquent for the four categories of offenses enumerated in 

N.J.S.A. 2C:35-14(b). The parties do not dispute that defendant is not 

precluded from Drug Court admission under N.J.S.A. 2C:35-14(b). 
14

(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) 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.

[N.J.S.A. 2C:35-14(a).]
15

Certain eligibility criteria, such as N.J.S.A. 2C:35-14(a)(4) and (9), are 

discretionary determinations requiring the sentencing judge to engage in factfinding. Here, for example, the judge applied defendant’s unique 

characteristics and circumstances -- namely, that she was diagnosed with five 

serious substance abuse disorders and had a relatively non-violent and remote 

criminal history -- and determined that she was amenable to treatment and not 

a risk to the community. See N.J.S.A. 2C:35-14(a)(4), (9). Even if the court 

abused its discretion “by making a clear error in judgment,” State v. S.N., 231 

N.J. 497, 500 (2018), it did not impose an illegal sentence by finding that 

defendant satisfies N.J.S.A. 2C:35-14(a)(9). 

Because this Court’s jurisprudence makes clear that sentences authorized 

by law but premised on an abuse of discretion are not illegal, we conclude that 

the State may not appeal a special probation Drug Court sentence based on the 

judge’s finding of one or more of N.J.S.A. 2C:35-14(a)’s discretionary factors. 

Accordingly, the State is not permitted to appeal defendant’s Drug Court 

sentence on the basis of the court’s application of N.J.S.A. 2C:35-14(a)(9). A 

finding to the contrary would conflate sentence illegality with judicial abuse of

discretion, and undermine this Court’s consistently narrow construct of which 

sentences it deems illegal. 
16

D.

For future guidance, we add the following. Not all of the eligibility 

criteria set forth in N.J.S.A. 2C:35-14(a) necessitate fact-finding or an exercise 

of discretion by the sentencing judge. Rather, some factors -- for example,

N.J.S.A. 2C:35-14(a)(1), (6), (7), and (8) -- require objective, per se legal 

determinations. Because the sentencing court must find all nine factors under 

N.J.S.A. 2C:35-14(a) before imposing a special probation Drug Court 

sentence, improper application by the sentencing judge of one of the

nondiscretionary factors would constitute a sentence that is “not imposed in 

accordance with law.” Acevedo, 205 N.J. at 45 (quoting Murray, 162 N.J. at 

247). Such a sentence would be appealable as illegal under our Criminal 

Code. See Ancrum, 449 N.J. Super. at 531, 539 (permitting appeal because the

judge improperly interpreted N.J.S.A. 2C:35-14(b)(2), which bars the 

imposition of a Drug Court sentence for defendants convicted of disqualifying 

second-degree crimes). 

In sum, when -- and only when -- a sentencing judge makes a plainly or 

clearly mistaken objective, rather than discretionary, finding under N.J.S.A. 

2C:35-14(a), the State may appeal as illegal the imposition of a Drug Court 

sentence. 
17

IV.

Because defendant’s sentence is not illegal and an appeal is not 

expressly authorized by statute, we have no jurisdiction to consider the State’s 

appeal of defendant’s special probation Drug Court sentence. We therefore 

affirm as modified the judgment of the Appellate Division. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE 

SOLOMON’S opinion.