                                      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                                NOT FOR PUBLICATION WITHOUT THE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.
                                                                          A-1667-18T1
                                        2
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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                                        3
            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

                                                                           A-1667-18T1
                                          4
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


                                                                           A-1667-18T1
                                        5
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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                                        6
            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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                                        7
"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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