                        NOT FOR PUBLICATION WITHOUT THE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-3855-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANGELA L. OTEY,

        Defendant-Appellant.

__________________________

              Submitted August 30, 2017 – Decided November 9, 2017

              Before Judges Alvarez and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 15-06-1030.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alyssa Aiello, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Monica do
              Outeiro, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        A grand jury indicted defendant for second-degree aggravated

assault,       N.J.S.A.     2C:12-1(b)(1)       (count     one);    third-degree
aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2)

(count     two);   second-degree   burglary,    N.J.S.A.   2C:18-2    (count

three); fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count four); and third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five).                  On

October 26, 2015, defendant pled guilty to count three and admitted

burglarizing the apartment of S.H., her ex-girlfriend, while armed

with a box cutter.       In exchange for the guilty plea, the State

agreed to dismiss the remaining counts and to recommend sentencing

in   the     third-degree    range,       see   N.J.S.A.   2C:44-1(f)(2),

specifically a five-year custodial sentence subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2.         Under the terms of

the plea agreement, defendant reserved the right to apply for

sentencing into Drug Court and, if her application was rejected,

to argue for a three-year custodial sentence.

     Pursuant to N.J.S.A. 2C:35-14(a), defendant applied to Drug

Court, but was rejected by the Drug Court prosecutor.           Defendant

appealed her rejection to the trial court, but her appeal was

denied on January 14, 2016.        Thereafter, defendant was sentenced

to three years imprisonment, subject to an eighty-five percent

period of parole ineligibility pursuant to NERA.            Defendant now

appeals her March 3, 2016 judgment of conviction, arguing the



                                      2                              A-3855-15T3
court erred in denying her appeal from the prosecutor's rejection

of her Drug Court application.         We disagree and affirm.

      After pleading guilty to second-degree burglary, defendant,

then thirty-four years old, applied to Drug Court on October 26,

2015.     Her application was reviewed as a Track 1 case.          At the

time, defendant had no prior history of indictable convictions.

In   conjunction   with     her    application,   defendant   underwent    a

Treatment Assessment Services for the Courts (TASC) evaluation in

order to determine her level of drug or alcohol dependency.             The

TASC evaluator found that defendant manifested symptoms of severe

alcohol    use   disorder    and    severe   heroin   use   disorder,   and

recommended a short-term residential inpatient program.           However,

the Drug Court prosecutor denied defendant's admission to Drug

Court, citing the significant threat to the community posed by

defendant's commission of a violent offense.

      On January 14, 2016, the court considered defendant's appeal

of the rejection.     Initially, the court summarized the facts as

follows:

            [O]n December [] 5th, 2014 the defendant broke
            into S.H.'s residence and assaulted A.D. with
            a box cutter knife.        The defendant had
            previously been in a relationship with S.H.
            It appears that the defendant climbed the fire
            escape,    entered    the   residence,    then
            encountered A.D. . . . [I]t appears that the
            incident happened at around 3:30 a.m.     A.D.
            was asleep, heard a noise, jumped up, the

                                       3                           A-3855-15T3
          defendant swung towards his face, cut his
          face, cut his arm with a box cutter. . . .
          A.D. said he didn't even realize that he was
          cut until . . . the lights [went] on[,] there
          was blood everywhere and the box cutter was
          in the defendant's right hand. The defendant
          was also wearing blue latex gloves according
          to A.D.   After some issues[,] the defendant
          was finally pushed out the door by A.D. and
          it's my understanding that she also suffered
          an injury as a result of this encounter.

     In   evaluating   the   statutory   criteria   for   Drug     Court

admission,1 the court found that defendant met the requirements of



1
  Under N.J.S.A. 2C:35-14(a), to be eligible for admission into
Drug Court, the sentencing court must find the following nine
factors:
          (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)   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


                                  4                              A-3855-15T3
N.J.S.A. 2C:35-14(a)(1) through (4) because "defendant does have

a drug or alcohol dependence" based upon the findings of the TASC

evaluator.   Regarding N.J.S.A. 2C:35-14(a)(5) through (7), the

court determined that there were "no disqualifying crimes or

firearms history that would prevent the defendant from coming into



          (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.


                                5                          A-3855-15T3
Drug Court statutorily[,]" and a "suitable treatment facility" was

available    to   satisfy   N.J.S.A.   2C:35-14(a)(8).   However,    in

evaluating N.J.S.A. 2C:35-14(a)(9), the court was troubled by the

violent nature of the offense as well as defendant's psychiatric

history as recounted in the TASC evaluation and determined that

"on balance, . . . the mental health concerns outweigh[ed] the

substance abuse issues[,]" making Drug Court inappropriate for

defendant.    The court noted:

            The report indicates that the defendant has
            experienced psychological problems during the
            past 30 days including serious anxiety,
            tension,        hallucinations,        trouble
            understanding, concentrating or remembering.
            During her lifetime she has suffered serious
            depression, serious anxiety, hallucination
            where she sees things, hears things, trouble
            controlling her violent behavior, she had been
            court-mandated to attend anger management even
            before this incident occurred, thoughts of
            suicide and she has attempted suicide in the
            past.    Indeed, she reported experiencing
            psychological or emotional problems 30 days
            within the past 30 days, so we have this very
            violent situation, we have that history of
            psychological problems.

     The court acknowledged the hardship imprisonment would have

on defendant, "especially in light of the fact that the defendant

has a daughter who does rely upon her so heavily."       However, the

court denied defendant's appeal based upon "the violent nature of

this crime," and "the significant mental health history."           The

court explained:

                                   6                          A-3855-15T3
          [A]lthough I commend the defendant for
          recognizing her need . . . for treatment to
          combat her substance abuse addiction[,] I
          cannot escape the conclusion that to permit
          her to participate in Drug Court would likely
          pose a danger to the community. Even if we
          were to take all the facts as set forth by the
          defendant, that this was an act of self[-
          ]defense,   it's   3:30    in   the   morning,
          undoubtedly   somebody    is   going    to   be
          encountered. The defendant is wearing latex
          gloves, she has a box cutter in her hand. If
          she didn't encounter A.D.[,] she probably
          would have encountered S.H. and the likelihood
          of some serious injury was very, very high.2
          So although the plea might          have been
          ultimately to a second[-]degree burglary[,]
          there was a significant element of violence
          involved. So again, it's a one time criminal
          record but it was a very violent offense
          nonetheless.       The    victim    was    very
          significantly injured and it was, as I said,
          a very violent offense and the Drug Court
          program is for the nonviolent offender[.]

This appeal followed.

     On appeal, defendant raises the following argument for our

consideration:

          POINT I

          THE DRUG COURT JUDGE ERRED IN          DENYING
          [DEFENDANT'S] DRUG COURT APPEAL.




2
 Notably, although defendant had no prior indictable convictions,
in the year prior, defendant had been convicted of simple assault
in a domestic violence incident involving S.H. Defendant received
a suspended jail sentence and was sentenced to a one-year
probationary term conditioned upon undergoing anger management and
having no contact with S.H.

                                7                           A-3855-15T3
     "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) (citing Administrative Office

of the Courts, Manual for Operation of Adult Drug Courts in New

Jersey (July 2002)).    There are two general ways to be admitted

to drug court.     See State v. Maurer, 438 N.J. Super. 402, 413

(App. Div. 2014).      Defendants admitted to Drug Court who are

subject to sentencing with a presumption of incarceration and who

satisfy the nine separate factors embodied in N.J.S.A. 2C:35-

14(a), are assigned to Track 1 and required to serve a period of

"special probation" pursuant to N.J.S.A. 2C:35-14(a).           Maurer,

supra, 438 N.J. Super. at 413. Defendants with drug abuse problems

who are not subject to a presumption of incarceration are assigned

to Track 2 and are eligible for Drug Court under the general

sentencing provisions of the Criminal Code pursuant to N.J.S.A.

2C:45-2.   Maurer, supra, 438 N.J. Super. at 413 (citing State v.

Clarke, 203 N.J. 166, 174-76 (2010)).

     Under a prior version of the statute governing admission to

Drug Court, "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

                                    8                            A-3855-15T3
objection and admit the defendant to Drug Court."                 Maurer, supra,

438   N.J.     Super.   at   414   (alteration       in    original).     However,

"[s]ubsection (c) was deleted in the 2012 amendments" to the Drug

Court Statute, thus removing the prosecutor's objection as an

impediment      to   the   sentencing   court's       decision    to    sentence    a

defendant to special probation.              Ibid.        Therefore, it is clear

that under the current statutory framework, it is the sentencing

court, not the prosecutor, who makes the final determination

regarding an applicant's eligibility for Drug Court.                     See Ibid.

"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."                    Id.

at 418.      While the "'abuse of discretion' standard defies precise

definition, it arises when a decision 'is made without a rational

explanation, inexplicably departed from established policies, or

rested    on    an   impermissible      basis.'"          Flagg   v.    Essex   Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (citing Achacoso-Sanchez v.

Immigration & Naturalization Serv., 779 F. 2d 1260, 1265 (7th Cir.

1985)).

      Here, the court determined that, while defendant pled guilty

to a qualifying offense for a Track 1 Drug Court application and

satisfied most of the statutory criteria, defendant's admission

into Drug Court posed a danger to the community based upon the

                                         9                                  A-3855-15T3
violent nature of the offense in conjunction with her mental health

history.       We   discern   no   abuse    of   discretion    in   the   court's

decision. Defendant argues that "neither the nature of the offense

nor [defendant's] mental health history support the conclusion

that [defendant's] participation in drug court would pose a danger

to the community[,]" particularly since the court's "finding was

based entirely on [defendant's] self-reported psychiatric status

contained in the TASC evaluation."               Further, defendant asserts

that the court "erred in finding that [defendant] presented a

danger to the community based on the violent nature of the instant

offense and the fact that [defendant] has had 'trouble controlling

her violent behavior' in the past[.]"             We disagree.

     In determining whether to sentence a defendant to special

probation,

              the   court  shall   consider   all   relevant
              circumstances, and shall take judicial notice
              of any evidence, testimony or information
              adduced at the trial, plea hearing or other
              court proceedings, and shall also 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.

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

Here,   the     court's   findings    are    supported    by    the   "relevant

circumstances" contained in the record.


                                      10                                  A-3855-15T3
Affirmed.




            11   A-3855-15T3
