STATE OF NEW JERSEY VS. JOHN D. APPLEBY (17-10-1645, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1667-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN D. APPLEBY,
Defendant-Appellant.
_____________________________
Submitted May 16, 2019 – Decided June 12, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-10-1645.
Robert L. Tarver, Jr., attorney for appellant.
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Shiraz I. Deen,
Assistant Prosecutor, on the brief).
PER CURIAM
On leave granted, defendant, John Appleby, appeals from a September 20,
2018 order denying his admission into Drug Court. We affirm.
In February 2017, Lacy Township police learned defendant routinely
traveled to Florida to purchase cocaine to sell in New Jersey. On March 18,
2017, Lacy Township police performed a vehicle stop of defendant's car. The
search revealed a digital scale with white powder residue, a bag with a trace
amount of marijuana and two bags containing suspected methamphetamine and
cocaine. The police arrested defendant.
On June 22, 2017, defendant underwent a Treatment Assessment Services
for Court (TASC) evaluation to determine if he was eligible for Drug Court. On
July 7, 2017, the TASC evaluator reported defendant did "not manifest any
symptoms of a substance use disorder as defined in the DSM-5."1
Defendant was subsequently indicted for third-degree possession of a
controlled dangerous substance (CDS) (methamphetamine), N.J.S.A. 2C:35-
10(a)(1); third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1);
second-degree possession with intent to distribute (cocaine), N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and second-degree conspiracy to distribute
1
Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.
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or possess with intent to distribute (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A.
2C:35-5(b)(2).
On May 9, 2018, defendant moved for admission into Drug Court. In
support of the motion, defendant underwent a private substance abuse screening
performed by Lisa Mollicone LCADC. Mollicone concluded defendant "clearly
fits the DSM[-]5 criteria for a severe substance abuse problem." On August 24,
2018, the Drug Court judge conducted a hearing and denied defendant's
admission. The judge rejected Mollicone's substance abuse report as a "net
opinion, which is not admissible and may not be considered." In rejecting
Mollicone's report, the judge stated:
The next sentence: "[defendant] has a cocaine
dependency problem, severe. He uses cocaine daily."
Okay. So that's the basis? My understanding, I'm not
a professional, but as a drug court judge -- I've been
doing this for a while -- is that mere use alone is not
enough to justify the conclusion that somebody has a
moderate to severe substance abuse disorder, and that's
all I read here.
....
Next sentence: "he is dependent on crystal meth,
methamphetamine and uses it several times a week."
That's it. That['s] the only "analysis[,]"[] the only
factual recitation regarding that subject . . . .
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So, we've got a sentence for each disorder. And, again,
I have to compare and contrast that to the TASC
evaluator's report, which has all kind of details and
facts about all those aspects that, while they're
mentioned here, they're not fleshed out or analyzed at
all.
....
So, there's no dissection of the history for me to review.
If she spent a lot of time and went into a lot of detail, it
hasn't been related to me, and I have to conclude that
Ms. Mollicone's report is what we call a net opinion,
and it wouldn’t be admissible at trial, because she
doesn't give us the why and wherefore that support the
opinion, [but] rather [] a mere conclusion.
The Drug Court judge denied defendant admission, and we granted
defendant's motion for leave to appeal.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S SUBSEQUENT
EVALUATIONS FOLLOWING HIS REJECTION
DEMONSTRATE THAT HE QUALIFIES FOR
ENTRY INTO THE DRUG COURT PROGRAM.
POINT [II]: THE COURT IMPROPERLY REJECTED
MS. MOLLICONE'S FINDINGS AND ASSESSMENT
WITHOUT SUFFICIENT BASIS AMOUNTING TO
AN ABUSE OF DISCRETION.
Determining whether an offender is eligible for drug court "involves a
question of law." State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014).
"Our standard of review on legal issues is de novo and we owe no deference to
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the trial court's 'interpretation of the law and the legal consequences that flow
from established facts . . . .'" State v. Bradley, 420 N.J. Super. 138, 141 (App.
Div. 2011) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
"A trial court's evidentiary rulings are entitled to deference absent a
showing of an abuse of discretion, i.e., there has been a clear error of judgment."
State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration omitted) (quoting State
v. Harris, 209 N.J. 431, 439 (2012)). When a trial court fails to apply the proper
legal standard to determine admissibility of evidence, the court's decision is not
entitled to deference and appellate review is de novo. State v. Darby, 174 N.J.
509, 518 (2002).
On appeal, defendant argues Mollicone's evaluation demonstrates that he
qualifies for admission into the Drug Court program because he is a drug
dependent person, N.J.S.A. 2C:35-2, and the judge erred when he rejected
Mollicone's report. We disagree.
"A fair deliberative process requires that the Drug Court judge consider
all of the relevant information available." State v. Clarke, 203 N.J. 166, 182
(2010). "Although a Drug Court judge is not bound by a substance abuse
evaluator's recommendation for in-patient drug treatment, the evaluation is a
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critical component of a decision to grant or deny admission into the Drug Court
program." Id. at 183. "The substance abuse evaluator's recommendation can
assist in the judge's consideration of a defendant's need for treatment and the
probable effect of any addiction on future criminal behavior." Ibid. Special
probation provides one track by which certain offenders become eligible for
Drug Court, a "specialized court[] . . . that target[s] drug-involved 'offenders
who are most likely to benefit from treatment and do not pose a risk to public
safety.'" State v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Administrative
Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey
3 (July 2002)). "Under [this] track, to meet the requirements for 'special
probation,' the applicant must have committed a crime that is subject to a
presumption of incarceration or a mandatory prison term, and the judge must
find that the applicant satisfies nine separate factors." Clarke, 203 N.J. at 175
(citing N.J.S.A. 2C:35-14(a)(1)-(9)). The two factors most at issue in the
present case are:
(1) the person has undergone a professional diagnostic
assessment to determine whether and to what extent the
person is drug or alcohol dependent and would benefit
from treatment; and
(2) the person is a drug or alcohol dependent person
within the meaning of N.J.S.[A.] 2C:35-2 and was drug
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or alcohol dependent at the time of the commission of
the present offense[.]
[N.J.S.A. 2C:35-14(a)(1), (2).]
N.J.S.A. 2C:35-14(a) states that a judge must consider "the presentence
report and the results of the professional diagnostic assessment to determine
whether and to what extent the person is drug or alcohol dependent and would
benefit from treatment." (Emphasis added).
We disagree with the State's argument that the Legislature intended the
judge to exclusively rely on the TASC report and no other assessments are to
be considered. The phrase "the results of the professional diagnostic
assessment," as used in N.J.S.A. 2C:35-14(a), has remained static since its
enactment. See N.J.S.A. 2C:35-14(a); L. 1987, c. 106, § 1. N.J.S.A. 2C:35-
14(a) specifically requires a judge to consider "all relevant circumstances, and
[the judge] shall take judicial notice of any evidence, testimony or information
adduced at the trial, plea hearing or other court proceedings[.]"
Here, the judge carefully considered and rejected Mollicone's report. The
judge is not bound by the substance abuse evaluator's determination. Clarke,
203 N.J. at 183. In fact, even if both the TASC report and Mollicone's report
found defendant had some level of substance abuse problems, the court would
not be bound by these opinions. N.J.S.A. 2C:35-14(a) states the court may
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"place the person on special probation, which shall be for a term of five years,
provided that the court finds on the record that [the conditions are met]."
(Emphasis added). This is a legal determination where the court must determine
whether the person is "drug or alcohol dependent." N.J.S.A. 2C:35-14(a)(2).
For this reason, the relevant inquiry is not which report is controlling, but
whether the judge properly considered the TASC report and other substance
abuse report. The record demonstrates he did.
Affirmed.
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