                                NOT FOR PUBLICATION WITHOUT THE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-0360-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARCELINO GARCIA,

     Defendant-Appellant.
_______________________________

                    Submitted November 5, 2018 – Decided December 3, 2018

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Accusation No. 16-11-1165.

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

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (William P. Miller, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel; Catherine A. Foddai, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, on the
                    brief).
PER CURIAM

       Defendant Marcelino Garcia pled guilty to eight counts of second-degree

robbery, N.J.S.A. 2C:15-1(a)(2), one count for each of the eight different banks

he robbed over a fifteen-month period between February 2015 and June 2016.

The State of New Jersey agreed to recommend concurrent ten-year terms of

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and defendant's payment of restitution. Defendant then applied for special

Drug Court probation pursuant to N.J.S.A. 2C:35-14(a).

       A TASC1 evaluation concluded defendant "manifest[ed] symptoms of

[m]oderate [o]piate [u]se [d]isorder." It noted, however, that defendant's "self-

report [was] of questionable validity," because defendant denied the use of any

substances other than alcohol and tobacco to the jail's medical staff and

exhibited no "withdrawal symptoms" upon admission to the jail, despite h is

claim of using "a bundle of heroin daily, in conjunction with . . . other substances

. . . ." Defendant's girlfriend "verified [he] engage[d] in the use of substances

and this ha[d] caused negative issues in their relationship."         "Based upon

[defendant's] self-report," the evaluator recommended he be referred for

intensive outpatient services.


1
    Treatment Assessment Services for the Courts.
                                                                            A-0360-17T4
                                         2
      In his written objection to the court, the prosecutor argued defendant

committed the robberies for profit, not to support a drug habit, and presented a

continuing threat to the community. The prosecutor noted defendant showed no

signs of being under the influence of drugs when arrested, and, in a statement

given to law enforcement at that time, defendant said he committed the robberies

because he had lost his job and needed money. Defendant described how he

researched the banks he robbed and carefully devised and executed his

robberies.

      After hearing oral argument, the Drug Court judge reserved decision.

Approximately one week later, he denied defendant's application in an oral

opinion placed upon the record, and filed a conforming order. Another judge

sentenced defendant to eight concurrent sentences of ten years' imprisonment

each, subject to an eighty-five percent period of parole ineligibility as required

by NERA, and restitution. This appeal followed.

      Defendant raises the following points for our consideration:

             POINT I

             A REMAND FOR RECONSIDERATION OF THE
             DRUG COURT APPLICATION IS REQUIRED
             BECAUSE THE DRUG COURT JUDGE APPLIED A
             LEGALLY IMPROPER STANDARD OF REVIEW
             AND FAILED TO FULLY AND FAIRLY CONSIDER
             THE REVEVANT FACTS.

                                                                          A-0360-17T4
                                        3
                   A. A Remand is Required Because the
                   Drug Court Judge Wrongly Applied an
                   Abuse of Discretion Standard of Review.

                   B. A Remand Is Required Because the
                   Drug Court Judge Did Not Fully and Fairly
                   Consider All the Relevant Facts.

            POINT II

            RESENTENCING IS REQUIRED BECAUSE THE
            JUDGE REJECTED A RELEVANT MITIGATING
            FACTOR AND BASED AN AGGRAVATING
            FACTOR ON DEFENDANT'S DRUG ADDICTION
            DESPITE CASE LAW PROHIBITING SUCH
            CONSIDERATION, AND DEFENDANT'S DRUG
            COURT APPLICATION HAVING BEEN DENIED
            BASED ON A LACK OF ADDICTION.

After considering these arguments in light of the record and applicable legal

standards, we affirm.

      "Special probation 'and Drug Courts serve complementary purposes.'"

State v. Ancrum, 449 N.J. Super. 526, 532 (App. Div. 2017) (quoting State v.

Meyer, 192 N.J. 421, 424 (2007)). "Special probation provides one route, or

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." Ibid. (quoting Meyer,

192 N.J. at 428-29 (internal quotations omitted)). "Under [this] track, to meet

the requirements for 'special probation,' the applicant must have committed a

                                                                           A-0360-17T4
                                        4
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. "

State v. Clarke, 203 N.J. 166, 175 (2010) (citing N.J.S.A. 2C:35-14(a)(1)).

Three of the nine factors most relevant to this appeal are: factor two, whether

the defendant is drug or alcohol dependent and was so at the time he committed

the present offense; factor three, whether the defendant committed the present

offense while under the influence of a controlled dangerous substance, its analog

or alcohol; and factor nine, whether danger to the community will result from a

special probationary sentence. N.J.S.A. 2C:35-14(a) (2), (3) and (9).

      In denying defendant's application, the Drug Court judge began his oral

decision by stating, "The courts have recognized that the Prosecutor's Office has

discretion in deciding whether or not to admit participants into Drug Court.

Obviously, such discretion . . . is not unfettered and is subject to a court review."

Defendant seizes on this statement and argues that the judge applied the wrong

standard in deciding whether to admit defendant to Drug Court.

      Prior to 2012, the prosecutor's objection to a defendant's participation in

Drug Court was sufficient to block admission, and the prosecutor's decision was

subject to review for a patent and gross abuse of discretion. N.J.S.A. 2C:35-

14(c) (2009) (amended 2015); see also Clarke, 203 N.J. at 175 (quoting Meyer,


                                                                             A-0360-17T4
                                         5
192 N.J. at 432 ("If the prosecutor does not consent, the trial judge may only

admit the applicant under track one 'if the judge finds a gross and patent abuse

of prosecutorial discretion.'")). However, in 2012, the Legislature amended

N.J.S.A. 2C:35-14 and repealed subsection (c). See State v. Hyland, 452 N.J.

Super. 372, 387-89 (App. Div. 2017) (explaining history of the amendment). As

a result, the prosecutor's objection is a factor in the court's "consider[ation] [of]

all relevant circumstances," nothing more. N.J.S.A. 2C:35-14(a).

      Defendant's argument might have some merit, but for the fact that the

judge immediately continued by indicating he had "on numerous occasions . . .

overruled the State's objection to a person being admitted into Drug Court. The

prior standard was gross and patent abuse of discretion . . . [but] that is no longer

the standard for reviewing the [p]rosecutor's decision whether or not to admit or

reject someone's entry into Drug Court." The judge then considered defendant's

application in light of the nine statutory factors.        As a result, we reject

defendant's claim that the judge deferred to the prosecutor's objection and

relinquished his obligation to consider "all relevant circumstances."

      For example, the judge found "there needs to be a nexus between the crime

committed and the participant's drug problem." See N.J.S.A. 2C:35-14(a)(3).

The judge expressed his concern about the "veracity" of defendant's self -


                                                                             A-0360-17T4
                                         6
reported drug abuse. He noted the testimony of defendant's girlfriend and father

during the earlier hearing, but found it was "not fully illuminating" and did not

convince him of defendant's drug abuse. The judge acknowledged, "defendant

was caught while in the jail with drugs," but, after considering the "totality of

the circumstances,"

              particularly . . . defendant's behavior in the wake of his
              arrest for the robberies, from the bank robberies, the
              amounts involved, [2] there didn't appear at that time to
              be any indication that . . . defendant was under the
              influence when he committed these acts or that he
              committed these acts to support his drug habit.

        Defendant contends the "judge did not fully and fairly consider all the

relevant facts." He argues the judge discounted the TASC report because it

relied upon defendant's self-report, yet professional standards among medical

providers in the field "are inherently focused on client interviews and self -

reporting."    Defendant also claims the judge failed to consider fully the

testimony of defendant's father and girlfriend.

        These arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). It is quite clear from the entire record that the judge




2
    Defendant told police he obtained more than $55,000 from the bank robberies.
                                                                           A-0360-17T4
                                          7
gave careful consideration to all relevant circumstances. We affirm the order

denying defendant's admission into Drug Court.

      Defendant was twenty-four years old at the time of sentencing and had no

prior arrests or convictions. The sentencing judge found aggravating factors

three and nine. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); and (a)(9) (the

need to deter defendant and others). She also found mitigating factors six and

seven. N.J.S.A. 2C:44-1(b)(6) (defendant would be compensating his victims

through restitution); and (b)(7) (defendant's lack of any prior delinquency or

criminal activity). The judge rejected other mitigating factors urged by de fense

counsel and sentenced defendant as already noted.

      Before us, defendant argues there was no support for the judge's finding

of aggravating factor three, and she should have found mitigating factors three,

nine and twelve. See N.J.S.A. 2C:44-1(b)(3) (defendant acted under a strong

provocation, that is, his drug habit); (b)(9) (defendant's character and attitude

made it unlikely he would commit another offense); and (b)(12) (defendant's

willingness to cooperate with law enforcement).        We disagree and affirm

defendant's sentence.

      "Appellate review of sentencing is deferential, and appellate courts are

cautioned not to substitute their judgment for those of our sentencing courts."


                                                                         A-0360-17T4
                                       8
State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606

(2013)). Generally, we only determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65,
            (1984)).]

      Defendant notes the judge found aggravating factor three based solely

upon defendant's self-reported drug abuse. We recently noted that a defendant's

"substantial level of intoxication" at the time of offense supported a finding that

he or she present a risk of re-offense. State v. Locane, 454 N.J. Super. 98, 125

(App. Div. 2018). In State v. Bienek, 200 N.J. 601, 610 (2010), the Court

specifically approved a finding of aggravating factor three premised upon the

defendant's substance abuse problems. While we acknowledge the divergent

conclusions reached by the Drug Court judge and the sentencing judge about the

level of defendant's substance abuse problems, we cannot say the sentencing

judge's determination lacked support in the record. A finding of aggravating

factor three is inconsistent with a finding of the related mitigating factor nine.


                                                                            A-0360-17T4
                                         9
      We find no error in the judge's rejection of mitigating factor twelve. The

record reveals that defendant met with members of law enforcement to provide

information. However, defense counsel could not verify what information was

actually provided, whether it was truthful and what, if anything, resulted

thereafter.

      Defendant pled guilty to eight separate robberies committed over fifteen

months. He received a sentence in accordance with the plea agreement. A

"presumption of reasonableness . . . attaches to criminal sentences imposed on

plea bargain defendants."    State v. Sainz, 107 N.J. 283, 294 (1987).      The

sentence imposed does not shock the judicial conscience.

      Affirmed.




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                                      10
