                                 NOT FOR PUBLICATION WITHOUT THE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-3769-17T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

BERNARDO GARCIA,

     Defendant-Respondent.
______________________________

                   Submitted February 26, 2019 – Decided June 21, 2019

                   Before Judges Hoffman and Suter.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-08-1079.

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   appellant (Erin M. Campbell, Assistant Prosecutor, on
                   the brief).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Stephen P. Hunter, Assistant Deputy
                   Public Defender, of counsel and on the brief).

PER CURIAM
      The State appeals a Superior Court order that admitted defendant to the

Hudson County Drug Court (Drug Court). It contends defendant is a "danger to

the community," and because of this, he is ineligible for admission. We lack

jurisdiction to hear the State's appeal based on State v. Hyland, __ N.J. __, __

(2019) (slip op. at 15) and dismiss the appeal.

                                        I

      Defendant robbed a bank in Union City, saying to the teller, "give me the

money . . . or I'll shoot someone." The teller put $7880 in a bag and gave it to

defendant who then fled. He eventually turned himself in when he learned the

police were looking for him in connection with the robbery. He told the police

he robbed the bank but explained he was having financial problems that made it

difficult to provide for his family. He admitted saying to the teller that "he

would shoot the place up" while he kept his hands tucked in around his waist to

look like he had a gun. He learned how to do this from an internet search he

made the night before the robbery.

      Defendant pleaded guilty1 to second-degree robbery, N.J.S.A. 2C:15-

1(a)(2), and applied to Drug Court. The prosecutor's office rejected defendant's


1
   Initially, defendant pleaded guilty to first-degree robbery, N.J.S.A. 2C:15-
1(a)(2), although he was sentenced in the second-degree range to a seven year


                                                                        A-3769-17T2
                                        2
application, claiming he was a significant threat to the community and had a

history of violence.

      Defendant filed a motion to overturn the prosecutor's objection. At the

hearing, the State argued defendant posed a significant danger to the public. In

a robbery in 2008, he purportedly broke the nose of his victim. In the bank

robbery, he threatened to "shoot the place up." The State contended defendant

was not eligible for Drug Court because he alleged possession of a gun during

the bank robbery, even though he did not actually have one. All that was

required to preclude eligibility, according to the State, was that the victim

reasonably believed defendant had a weapon. The State argued that admission

into Drug Court was not intended to apply to persons such as defendant who

committed a "premediated armed bank robbery."

      Defendant argued he was not a danger to the community. He was not

charged with aggravated assault for the 2008 robbery. He did not have a gun

during the bank robbery. His criminal record was limited. Defendant argued he




term with an eighty-five percent period of ineligibility. He appealed, claiming
the indictment did not allege any facts or include any statutory language
constituting first-degree robbery, and requested a remand to amend the judgment
and to resentence him for second-degree robbery. The parties stipulated to
dismiss the appeal. State v. Garcia, No. A-003771-16 (App. Div. Oct. 2, 2017).


                                                                        A-3769-17T2
                                       3
had an extensive and long-standing history of drug use.           The Treatment

Assessment Services for the Courts (TASC) evaluation reported he had five

severe drug abuse issues 2 and recommended treatment in a long-term residential

in-patient treatment program. Defendant's counsel argued that defendant was

"dope sick [and] desperate for money."

      The trial court granted defendant's application for admission to Drug

Court, sentencing him to five years of special probation under N.J.S.A. 2C:35-

14, with the specific condition of complying with Drug Court supervision. The

court also imposed an alternative sentence of seven years in jail subject to an

eighty-five percent period of parole ineligibility if he violated the conditions of

his special probation.

      The court found that the threat of a weapon, without actual possession,

did not bar defendant from participation in Drug Court. It accepted defendant's

contention that he did not have a weapon during the robbery. The court took

into consideration that the robbery did not involve a physical assault, defendant

had been in jail for two years, and he had a severe substance abuse history for

which the treatment recommendation was a long-term in-patient program. The


2
   These included alcohol, cannabis, cocaine, sedative and opioid use disorders
all in "sustained remission in a controlled environment."


                                                                           A-3769-17T2
                                         4
court also considered defendant's statement to the police when he was arrested 3

and his substance abuse evaluation.          The court determined it would give

defendant "a chance to prove [himself]."

       The court found that "placing . . . defendant in [D]rug [C]ourt will not

pose a significant danger to the community." There was no statutory bar to

defendant's admission to the program because there was no physical assault. "It

was second-degree robbery based on fear, based on [a] threat."         Then, in

weighing applicable aggravating and mitigating factors, the court concluded that

the aggravating factors were outweighed because defendant was likely to

respond affirmatively to probationary treatment. The State's application for a

stay was denied.

       The State appeals, arguing that we have jurisdiction to decide this case.

The State argues that defendant was not an appropriate candidate for Drug Court

given the nature and circumstances of his criminal offenses.

                                        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)


3
    The statement was not included in the record.
                                                                        A-3769-17T2
                                        5
(quoting Administrative Directive #2-02, "Manual for Operation of Adult Drug

Courts In New Jersey" 3 (July 22, 2002)). Admission to Drug Court occurs in

two ways. State v. Clarke, 203 N.J. 166, 174 (2010). Track one defendants are

subject to sentencing with a presumption of imprisonment and must satisfy the

nine separate factors set forth in N.J.S.A. 2C:35-14(a). Id. at 175. They are

required to serve a period of "special probation" pursuant to N.J.S.A. 2C:35-

14(a). Ibid. Track two defendants are eligible under the general sentencing

provisions of the Criminal Justice Code. Id. at 175-76 (citing Meyer, 192 N.J.

at 432). Defendant is track one because he was convicted of second-degree

robbery, which carries with it both a presumption of incarceration and a

mandatory period of parole ineligibility. See N.J.S.A. 2C:43-7.2; N.J.S.A.

2C:44-1(d).

      In 2012, the Legislature amended the Drug Court statute, N.J.S.A. 2C:35-

14.   See L. 2012, c. 23.      The amendments "directly altered eligibility

requirements and procedures for consideration of [t]rack [o]ne defendants."

State v. Maurer, 438 N.J. Super. 402, 414 (App. Div. 2014). "[T]he amendments

removed the express ban on admission of those defendants who committed either

second-degree robbery or burglary offenses." Ibid. (citing L. 2012, c. 23, § 5).

It also deleted N.J.S.A. 2C:35-14(c), which required a court to make a finding


                                                                        A-3769-17T2
                                       6
of "gross and patent" abuse of discretion by the prosecutor before it could admit

a defendant to Drug Court over the prosecutor's objection. Ibid.

      Defendant pleaded guilty to second-degree robbery. Under the 2012

amendment, he no longer was ineligible for Drug Court based solely on the

nature of his conviction. The trial court considered the factors under N.J.S.A.

2C:35-14(a) (1) to (9) and made the requisite findings.

      The State argues that court erred in its analysis of a single factor, N.J.S.A.

2C:35-14(a)(9) (requiring a finding that "no danger to the community will result

from the person being placed on special probation pursuant to this section "). It

contends defendant is a danger to the community; the court found that he was

not. By contesting one factor, and not the others, the State waived any contest

about the other factors. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014);

Drinker Biddle v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super.

489, 496 n.5 (App. Div. 2011) (noting that claims not addressed in merits brief

are deemed abandoned).

      The State claims it has a right to appeal because N.J.S.A. 2C:35-14(a)(9)

was not satisfied and its absence made the sentence an illegal sentence. The

Supreme Court recently addressed this issue in Hyland, __ N.J. __ (slip op. at

2). The Court held that "the State is not permitted to appeal [the] defendant's


                                                                            A-3769-17T2
                                         7
Drug Court sentence on the basis of the [C]ourt's application of N.J.S.A. 2C:35-

14(a)(9)." Id. at __ (slip. op at 15). This factor required the judge to engage in

fact-finding. Because it is discretionary in nature—in contrast to some of the

other factors that require "objective, per se legal determinations"—the Court

held that even if the trial court abused its discretion in applying N.J.S.A. 2C:35 -

14(a)(9), this would not constitute an illegal sentence. Ibid. "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." Ibid. Because the State's ability to appeal a sentence is narrowly

constrained, the Court held in Hyland that it did not have jurisdiction to hear the

State's appeal based on the alleged error in deciding this discretionary factor;

the case did not involve an illegal sentence nor was there a statutory basis to

appeal. Id. at __ (slip. op at 17).

      The record shows that the trial court considered all the factors under

N.J.S.A. 2C:35-14(a), the presentence report, the TASC report and the

submissions and arguments of counsel. The State's appeal was based on an

alleged abuse of discretion by the trial court in its application of N.J.S.A. 2C:35-

14(a)(9). In light of Hyland, we have no jurisdiction to consider the State's

appeal.


                                                                            A-3769-17T2
                                         8
      We conclude that the State's further arguments are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      The appeal is dismissed.




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                                       9
