STATE OF NEW JERSEY VS. ANGELA L. OTEY (15-06-1030, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 9, 2017
• Docket: A-3855-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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