Bill Text: NJ S2706 | 2018-2019 | Regular Session | Introduced


Bill Title: Designates drug court program as the "special probation recovery court program" in statutes.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2018-06-11 - Introduced in the Senate, Referred to Senate Judiciary Committee [S2706 Detail]

Download: New_Jersey-2018-S2706-Introduced.html

SENATE, No. 2706

STATE OF NEW JERSEY

218th LEGISLATURE

 

INTRODUCED JUNE 11, 2018

 


 

Sponsored by:

Senator  JEFF VAN DREW

District 1 (Atlantic, Cape May and Cumberland)

 

 

 

 

SYNOPSIS

     Designates drug court program as the "special probation recovery court program" in statutes.

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act designating the drug court program as the "special probation recovery court program" and amending various parts of the statutory law.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 2 of P.L.1974, c.49 (C.2A:18-61.1) is amended to read as follows:

     2.    No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member of the immediate family of the person or persons establishing the trust, provided that the member of the immediate family on whose behalf the trust is established permanently occupies the unit; and (3) a dwelling unit which is permanently occupied by a member of the immediate family of the owner of that unit, provided, however, that exception (2) or (3) shall apply only in cases in which the member of the immediate family has a developmental disability, except upon establishment of one of the following grounds as good cause:

     a.     The person fails to pay rent due and owing under the lease whether the same be oral or written; provided that, for the purposes of this section, any portion of rent unpaid by a tenant to a landlord but utilized by the tenant to continue utility service to the rental premises after receiving notice from an electric, gas, water or sewer public utility that such service was in danger of discontinuance based on nonpayment by the landlord, shall not be deemed to be unpaid rent.

     b.    The person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the occupants or other tenants living in said house or neighborhood.

     c.     The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.

     d.    The person has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

     e.     (1) The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the lease at the beginning of the lease term.

     (2)   In public housing under the control of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.

     f.     The person has failed to pay rent after a valid notice to quit and notice of increase of said rent, provided the increase in rent is not unconscionable and complies with any and all other laws or municipal ordinances governing rent increases.

     g.    The landlord or owner (1) seeks to permanently board up or demolish the premises because he has been cited by local or State housing inspectors for substantial violations affecting the health and safety of tenants and it is economically unfeasible for the owner to eliminate the violations; (2) seeks to comply with local or State housing inspectors who have cited him for substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the tenant; simultaneously with service of notice of eviction pursuant to this clause, the landlord shall notify the Department of Community Affairs of the intention to institute proceedings and shall provide the department with such other information as it may require pursuant to rules and regulations.  The department shall inform all parties and the court of its view with respect to the feasibility of compliance without removal of the tenant and may in its discretion appear and present evidence; (3) seeks to correct an illegal occupancy because he has been cited by local or State housing inspectors or zoning officers and it is unfeasible to correct such illegal occupancy without removing the tenant; or (4) is a governmental agency which seeks to permanently retire the premises from the rental market pursuant to a redevelopment or land clearance plan in a blighted area. In those cases where the tenant is being removed for any reason specified in this subsection, no warrant for possession shall be issued until P.L.1967, c.79 (C.52:31B-1 et seq.) and P.L.1971, c.362 (C.20:4-1 et seq.) have been complied with.

     h.    The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park, provided this subsection shall not apply to circumstances covered under subsection g. of this section.

     i.     The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept; provided that in cases where a tenant has received a notice of termination pursuant to subsection g. of section 3 of P.L.1974, c.49 (C.2A:18-61.2), or has a protected tenancy status pursuant to the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.), or pursuant to the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), the landlord or owner shall have the burden of proving that any change in the terms and conditions of the lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled prior to the conversion.

     j.     The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

     k.    The landlord or owner of the building or mobile home park is converting from the rental market to a condominium, cooperative or fee simple ownership of two or more dwelling units or park sites, except as hereinafter provided in subsection l. of this section. Where the tenant is being removed pursuant to this subsection, no warrant for possession shall be issued until this act has been complied with.  No action for possession shall be brought pursuant to this subsection against a senior citizen tenant or disabled tenant with protected tenancy status pursuant to the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.), or against a qualified tenant under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), as long as the agency has not terminated the protected tenancy status or the protected tenancy period has not expired.

     l. (1) The owner of a building or mobile home park, which is constructed as or being converted to a condominium, cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial tenancy began after the master deed, agreement establishing the cooperative or subdivision plat was recorded, because the owner has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.  However, no action shall be brought against a tenant under paragraph (1) of this subsection unless the tenant was given a statement in accordance with section 6 of P.L.1975, c.311 (C.2A:18-61.9);

     (2)   The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental from an owner of three or less units after the master deed or agreement establishing the cooperative was recorded, because the owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing;

     (3)   The owner of a building of three residential units or less seeks to personally occupy a unit, or has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.

     m.   The landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated.

     n.    The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing, [a drug rehabilitation program] the special probation recovery court program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person harboring or permitting a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said act. No action for removal may be brought pursuant to this subsection more than two years after the date of the adjudication or conviction or more than two years after the person's release from incarceration whichever is the later.

     o.    The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault, or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after the adjudication or conviction or more than two years after the person's release from incarceration whichever is the later.

     p.    The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under N.J.S.2C:20-1 et al. involving theft of property located on the leased premises from the landlord, the leased premises or other tenants residing in the leased premises, or N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord, or under the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing [a drug rehabilitation program] the special probation recovery court program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person who harbors or permits a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said "Comprehensive Drug Reform Act of 1987."

     q.    The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:20-1 et al. involving theft of property from the landlord, the leased premises or other tenants residing in the same building or complex; or, being the tenant or lessee of such leased premises, knowingly harbors therein a person who has been so convicted or has so pleaded, or otherwise permits such a person to occupy those premises for residential purposes, whether continuously or intermittently.

     r.     The person is found in a civil action, by a preponderance of the evidence, to have committed a violation of the human trafficking provisions set forth in section 1 of P.L.2005, c.77 (C.2C:13-8)  within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been engaged in human trafficking, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after the alleged violation has terminated.  A criminal conviction or a guilty plea to a crime of human trafficking under section 1 of P.L.2005, c.77 (C.2C:13-8) shall be considered prima facie evidence of civil liability under this subsection.

     For purposes of this section, (1) "developmental disability" means any disability which is defined as such pursuant to section 3 of P.L.1977, c.82 (C.30:6D-3); (2) "member of the immediate family" means a person's spouse, parent, child or sibling, or a spouse, parent, child or sibling of any of them; and (3) "permanently" occupies or occupied means that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant's behalf.

(cf: P.L.2013, c.51, s.7)

 

     2.    Section 8 of P.L.2014, c.31 (C.2A:162-22) is amended to read as follows: 

     8.    a. Concerning an eligible defendant subject to pretrial detention as ordered by a court pursuant to sections 4 and 5 of P.L.2014, c.31 (C.2A:162-18 and C.2A:162-19) or an eligible defendant who is detained in jail due to the inability to post the monetary bail imposed by the court pursuant to subsection c. or d. of section 3 of P.L.2014, c.31 (C.2A:162-17):

     (1) (a) The eligible defendant shall not remain detained in jail for more than 90 days, not counting excludable time for reasonable delays as set forth in subsection b. of this section, prior to the return of an indictment.  If the eligible defendant is not indicted within that period of time, the eligible defendant shall be released from jail unless, on motion of the prosecutor, the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result from the eligible defendant's release from custody, so that no appropriate conditions for the eligible defendant's release could reasonably address that risk, and also finds that the failure to indict the eligible defendant in accordance with the time requirement set forth in this subparagraph was not due to unreasonable delay by the prosecutor.  If the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result, and also finds that the failure to indict the eligible defendant in accordance with the time requirement set forth in this subparagraph was not due to unreasonable delay by the prosecutor, the court may allocate an additional period of time, not to exceed 45 days, in which the return of an indictment shall occur.  Notwithstanding the court's previous findings for ordering the eligible defendant's pretrial detention, or if the court currently does not find a substantial and unjustifiable risk or finds unreasonable delay by the prosecutor as described in this subparagraph, the court shall order the release of the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

     (b)   If the eligible defendant is charged or indicted on another matter resulting in the eligible defendant's pretrial detention, the time calculations set forth in subparagraph (a) of this paragraph for each matter shall run independently.

     (2) (a) An eligible defendant who has been indicted shall not remain detained in jail for more than 180 days on that charge following the return or unsealing of the indictment, whichever is later, not counting excludable time for reasonable delays as set forth in subsection b. of this section, before commencement of the trial.  If the trial does not commence within that period of time, the eligible defendant shall be released from jail unless, on motion of the prosecutor, the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result from the eligible defendant's release from custody, so that no appropriate conditions for the eligible defendant's release could reasonably address that risk, and also finds that the failure to commence trial in accordance with the time requirement set forth in this subparagraph was not due to unreasonable delay by the prosecutor.  If the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result, and also finds that the failure to commence trial in accordance with the time requirement set forth in this subparagraph was not due to unreasonable delay by the prosecutor, the court may allocate an additional period of time in which the eligible defendant's trial shall commence. Notwithstanding the court's previous findings for ordering the eligible defendant's pretrial detention, or if the court currently does not find a substantial and unjustifiable risk or finds unreasonable delay by the prosecutor as described in this subparagraph, the court shall order the release of the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).  Notwithstanding any other provision of this section, an eligible defendant shall be released from jail pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17) after a release hearing if, two years after the court's issuance of the pretrial detention order for the eligible defendant, excluding any delays attributable to the eligible defendant, the prosecutor is not ready to proceed to voir dire or to opening argument, or to the hearing of any motions that had been reserved for the time of trial.

     (b)  (i)  For the purposes of this paragraph, a trial is considered to have commenced when the court determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions that had been reserved for the time of trial.

     (ii)   The return of a superseding indictment against the eligible defendant shall extend the time for the trial to commence.

     (iii) If an indictment is dismissed without prejudice upon motion of the eligible defendant for any reason, and a subsequent indictment is returned, the time for trial shall begin running from the date of the return of the subsequent indictment.

     (iv)  A trial ordered after a mistrial or upon a motion for a new trial shall commence within 120 days of the entry of the order of the court.  A trial ordered upon the reversal of a judgment by any appellate court shall commence within 120 days of the service of that court's trial mandate.

     (c)   If the eligible defendant is indicted on another matter resulting in the eligible defendant's pretrial detention, the time calculations set forth in this paragraph for each matter shall run independently.

     b.    (1) The following periods shall be excluded in computing the time in which a case shall be indicted or tried:

     (a)   The time resulting from an examination and hearing on competency and the period during which the eligible defendant is incompetent to stand trial or incapacitated;

     (b)   The time from the filing to the disposition of an eligible defendant's application for supervisory treatment pursuant to N.J.S.2C:36A-1 or N.J.S.2C:43-12 et seq., the special probation recovery court program pursuant to N.J.S.2C:35-14, drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1, or other pretrial treatment or supervisory program;

     (c)   The time from the filing to the final disposition of a motion made before trial by the prosecutor or the eligible defendant;

     (d)   The time resulting from a continuance granted, in the court's discretion, at the eligible defendant's request or at the request of both the eligible defendant and the prosecutor;

     (e)   The time resulting from the detention of an eligible defendant in another jurisdiction provided the prosecutor has been diligent and has made reasonable efforts to obtain the eligible defendant's presence;

     (f)   The time resulting from exceptional circumstances including, but not limited to, a natural disaster, the unavoidable unavailability of an eligible defendant, material witness or other evidence, when there is a reasonable expectation that the eligible defendant, witness or evidence will become available in the near future;

     (g)   On motion of the prosecutor, the delay resulting when the court finds that the case is complex due to the number of defendants or the nature of the prosecution;

     (h)   The time resulting from a severance of codefendants when that severance permits only one trial to commence within the time period for trial set forth in this section;

     (i)    The time resulting from an eligible defendant's failure to appear for a court proceeding;

     (j)    The time resulting from a disqualification or recusal of a judge;

     (k)   The time resulting from a failure by the eligible defendant to provide timely and complete discovery;

     (l) The time for other periods of delay not specifically enumerated if the court finds good cause for the delay; and

     (m)  Any other time otherwise required by statute.

     (2)   The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time set for discovery.

(cf: P.L.2014, c.31, s.8)

 

     3.    Section 1 of P.L.1999, c.160 (C.2C:33-28) is amended to read as follows: 

     1.    a.  An actor who solicits or recruits another to join or actively participate in a criminal street gang with the knowledge or purpose that the person who is solicited or recruited will promote, further, assist, plan, aid, agree, or attempt to aid in the commission of criminal conduct by a member of a criminal street gang commits a crime of the fourth degree.  For purposes of this section, the actor shall have the requisite knowledge or purpose if he knows that the person who is solicited or recruited will engage in some form, though not necessarily which form, of criminal activity.  "Criminal street gang" shall have the meaning set forth in section 1 of P.L.2007, c.341 (C.2C:33-29).

     b.    An actor who, in the course of violating subsection a. of this section, threatens another with bodily injury on two or more separate occasions within a 30-day period commits a crime of the third degree.

     c.     An actor who, in the course of violating subsection a. of this section, inflicts significant bodily injury upon another commits a crime of the second degree.

     d.    Any defendant convicted of soliciting, recruiting, coercing or threatening a person under 18 years of age in violation of subsection a., b. or g. of this section shall be guilty of a crime of the second degree.

     e.     An actor who violates subsection a. of this section while under official detention commits a crime of the second degree.  As used in this subsection, "official detention" means detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 of this Title, or alleged or found to be delinquent; detention for extradition or deportation; mandatory commitment to a residential treatment facility imposed as a condition of the special probation recovery court program pursuant to subsection d. of N.J.S.2C:35-14; or any other detention for law enforcement purposes.  "Official detention" also includes supervision of probation or parole, or constraint incidental to release on bail.  Notwithstanding the provisions of N.J.S.2C:44-5 or any other provision of law, the court shall order that the sentence imposed upon a violation of this section be served consecutively to the period or periods of detention the actor was serving at the time of the violation.

     f.     Any defendant convicted of soliciting, recruiting, coercing or threatening a person under 18 years of age in violation of subsection c. or e. of this section shall be sentenced by the court to an extended term of imprisonment as set forth in subsection a. of N.J.S.2C:43-7.

     g.    An actor who in the course of violating subsection a. of this section, does so on school property commits a crime of the third degree.

     Notwithstanding the provisions of N.J.S.2C:1-8, N.J.S.2C:44-5 or any other provision of law, a conviction arising under this section shall not merge with a conviction for any criminal offense that the actor committed while involved in criminal street gang related activity, as defined in subsection h. of N.J.S.2C:44-3, nor shall the conviction for any such offense merge with a conviction pursuant to this section and the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed upon any other such conviction.

(cf: P.L.2013, c.202)

 

     4.    N.J.S.2C:35-14 is amended to read as follows:

     2C:35-14. Rehabilitation Program for Drug and Alcohol Dependent Persons Subject to a Presumption of Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria for Imposing Special Probation Recovery Court Program; Ineligible Offenders; Commitment to Residential Treatment Facilities or Participation in a Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration in Lieu of Permanent Revocation.

     a.     Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to [a term of] the special probation recovery court program in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1.  Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S.2C:45-1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1; provided, however, that a person in need of treatment as defined in subsection f. of section 2 of P.L.2012, c.23 (C.2C:35-14.2) shall be sentenced in accordance with that section.  Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court's own motion, [place] sentence the person [on] to the special probation recovery court program, which shall be for a term of five years, provided that the court finds on the record that:

     (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.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

     (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.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] Health 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.

     In determining whether to sentence the person pursuant to this section, 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.  The court shall give priority to a person who has moved to be sentenced to the special probation recovery court program over a person who is being considered for a sentence to the special probation recovery court program on the court's own motion or in accordance with the provisions of section 2 of P.L.2012, c.23 (C.2C:35-14.2).

     As a condition of the special probation recovery court program, the court shall order the person to enter a residential treatment program at a facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of [Human Services] Health or a program of nonresidential treatment by a licensed and approved treatment provider, which program may include the use of medication-assisted treatment as defined in paragraph (7) of subsection f. of this section, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of participation in the special probation recovery court program.  In determining whether to order the person to participate in a nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, the conditions of the special probation recovery court program may include different methods and levels of community-based or residential supervision.

     b.    A person shall not be eligible for the special probation  recovery court program pursuant to this section if the person is convicted of or adjudicated delinquent for:

     (1)   a crime of the first degree;

     (2)   a crime of the first or second degree enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2), other than a crime of the second degree involving N.J.S.2C:15-1 (robbery) or N.J.S.2C:18-2 (burglary);

     (3)   a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or

     (4)   an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property.

     c.     (Deleted by amendment, P.L.2012, c.23)

     d.    Except as otherwise provided in subsection j. of this section, a person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is [placed on] sentenced to the special probation recovery court program under this section shall be committed to the custody of a residential substance use disorders treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of [Human Services] Health.  Subject to the authority of the court to temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility pursuant to subsection j. of this section, the person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility.  The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years.  Upon successful completion of the required residential treatment program, the person shall complete the [period of] sentence to the special probation recovery court program, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of the special probation recovery court program while committed pursuant to this section to a residential treatment facility.  Except as otherwise provided in subsection l. of this section, the person shall not be eligible for early discharge [of] from the special probation recovery court program pursuant to N.J.S.2C:45-2, or any other provision of the law.  The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider.  A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape).

     e.     The probation department or other appropriate agency designated by the court to monitor or supervise the [person's] person in the special probation recovery court program shall report periodically to the court as to the person's progress in treatment and compliance with court-imposed terms and conditions.  The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of the special probation recovery court program or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test, which shall only constitute a violation for a person using medication-assisted treatment as defined in paragraph (7) of subsection f. of this section if the positive test is unrelated to the person's medication-assisted treatment, or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape.  The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates the person's participation in the course of treatment, or commits any act that would constitute an escape.

     f.     (1)  Upon a first violation of any term or condition of the special probation recovery court program authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the person's participation in the special probation recovery court program.

     (2)   Upon a second or subsequent violation of any term or condition of the special probation recovery court program authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's participation in the special probation recovery court program unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue [on] in the special probation recovery court program, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue [on] in the special probation recovery court program pursuant to this section.  The court's determination to permit the person to continue [on] in the special probation recovery court program following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

     (3)   In making its determination whether to revoke the person's participation in the special probation recovery court program, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider.  The court shall give added weight to the treatment provider's recommendation that the person's participation in the special probation recovery court program be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

     (4)   If the court permanently revokes the person's participation in the special probation recovery court program pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent.  The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.  If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of the special probation  recovery court program while committed pursuant to this section to a residential treatment facility.  The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.

     (5)   Following a violation, if the court permits the person to continue on his participation in the special probation recovery court program pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation.

     (6)   Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's participation in the special probation recovery court program. Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the person's participation in the special probation recovery court program.

     (7)   An action for a violation under this section may be brought by a probation officer or prosecutor or on the court's own motion.  Failure to complete successfully the required treatment program shall constitute a violation of the person's participation in the special probation recovery court program. In the case of the temporary or continued management of a person's drug or alcohol dependency by means of medication-assisted treatment as defined herein, whenever supported by a report from the treatment provider of existing satisfactory progress and reasonably predictable long-term success with or without further medication-assisted treatment, the person's use of the medication-assisted treatment, even if continuing, shall not be the basis to constitute a failure to complete successfully the treatment program.  A person who fails to comply with the terms of the person's participation in the special probation recovery court program pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program, provided however that this provision shall not affect the person's eligibility for entry into the Intensive Supervision Program for a subsequent conviction.

     As used in this section, the term "medication-assisted treatment" means the use of any medications approved by the federal Food and Drug Administration to treat substance use disorders, including extended-release naltrexone, methadone, and buprenorphine, in combination with counseling and behavioral therapies, to provide a whole-patient approach to the treatment of substance use disorders.

     g.    When a person [on] sentenced to the special probation  recovery court program is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the person's participation in the special probation recovery court program, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the person's [term of] participation in the special probation recovery court program pursuant to this section may be reinstated.  In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once the person's participation in the special probation recovery court program is reinstated.  This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person.  Any such determination by the court to reimpose this disposition may be appealed by the prosecution.  Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of a person's participation in the special probation recovery court program to order a person [on] participating in the special probation recovery court program who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment.

     h.    The court, as a condition of its order, and after considering the person's financial resources, shall require the person to pay that portion of the costs associated with the person's participation in any residential or nonresidential treatment program imposed pursuant to this section which, in the opinion of the court, is consistent with the person's ability to pay, taking into account the court's authority to order payment or reimbursement to be made over time and in installments.

     i.     The court shall impose, as a condition of the participation in special probation recovery court program, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent.

     j.     Where the court finds that a person has satisfied all of the eligibility criteria for participation in the special probation recovery court program and would otherwise be required to be committed to the custody of a residential substance use disorders treatment facility pursuant to the provisions of subsection d. of this section, the court may temporarily suspend imposition of all or any portion of the term of commitment to a residential treatment facility and may instead order the person to enter a nonresidential treatment program, provided that the court finds on the record that:

     (1)   the person conducting the diagnostic assessment required pursuant to paragraph (1) of subsection a. of this section has recommended in writing that the proposed course of nonresidential treatment services is clinically appropriate and adequate to address the person's treatment needs; and

     (2)   no danger to the community would result from the person participating in the proposed course of nonresidential treatment services; and

     (3)   a suitable treatment provider is able and has agreed to provide clinically appropriate nonresidential treatment services.

     If the prosecutor objects to the court's decision to suspend the commitment of the person to a residential treatment facility pursuant to this subsection, the sentence [of] to the special probation recovery court program imposed pursuant to this section shall not become final for ten days in order to permit the appeal by the prosecution of the court's decision.

     After a period of six months of nonresidential treatment, if the court, considering all available information including but not limited to the recommendation of the treatment provider, finds that the person has made satisfactory progress in treatment and that there is a substantial likelihood that the person will successfully complete the nonresidential treatment program and period of participation in the special probation recovery court program, the court, on notice to the prosecutor, may permanently suspend the commitment of the person to the custody of a residential treatment program, in which event the special monitoring provisions set forth in subsection k. of this section shall no longer apply.

     Nothing in this subsection shall be construed to limit the authority of the court at any time during the [term of] sentence to the special probation recovery court program to order the person to be committed to a residential or nonresidential treatment facility if the court determines that such treatment is clinically appropriate and necessary to address the person's present treatment needs.

     k.    (1)  When the court temporarily suspends the commitment of the person to a residential treatment facility pursuant to subsection j. of this section, the court shall, in addition to ordering participation in a prescribed course of nonresidential treatment and any other appropriate terms or conditions authorized or required by law, order the person to undergo urine testing for drug or alcohol use not less than once per week unless otherwise ordered by the court.  The court-ordered testing shall be conducted by the probation department or the treatment provider.  The results of all tests shall be reported promptly to the court and to the prosecutor.  If the person is involved with a program that is providing the person medication-assisted treatment as defined in paragraph (7) of subsection f. of this section, only a positive urine test for drug or alcohol use unrelated to the medication-assisted treatment shall constitute a violation of the terms and conditions of participation in the special probation recovery court program. In addition, the court shall impose appropriate curfews or other restrictions on the person's movements, and may order the person to wear electronic monitoring devices to enforce such curfews or other restrictions as a condition of participation in the special probation recovery court program.

     (2)   The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person fails or refuses to submit to a drug or alcohol test, knowingly defrauds the administration of a drug test, terminates the person's participation in the course of treatment, or commits any act that would constitute absconding from parole.  If the person at any time while entered in a nonresidential treatment program pursuant to subsection j. of this section knowingly defrauds the administration of a drug test, goes into hiding, or leaves the State with a purpose of avoiding supervision, the court shall permanently revoke the person's participation in the special probation recovery court program.

     l.     If the court finds that the person has made exemplary progress in the course of treatment, the court may, upon recommendation of the person's supervising probation officer or on the court's own motion, and upon notice to the prosecutor, grant early discharge from  [a term of] participation in the special probation recovery court program provided that the person: (1) has satisfactorily completed the treatment program ordered by the court; (2) has served at least two years [of] the special probation recovery court program; (3) within the preceding 12 months, did not commit a substantial violation of any term or condition of the special probation recovery court program, including but not limited to a positive urine test, which shall only constitute a violation for a person using medication-assisted treatment as defined in paragraph (7) of subsection f. of this section if the positive test is unrelated to the person's medication-assisted treatment; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued.

     m.   (1)  The Superior Court may order the expungement of all records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes upon successful discharge from [a term of] the special probation  recovery court program as provided in this section, regardless of whether the person was sentenced to the special probation recovery court program under this section, section 2 of P.L.2012, c.23 (C.2C:35-14.2), or N.J.S.2C:45-1, if the person satisfactorily completed a substance abuse treatment program as ordered by the court and was not convicted of any crime, or adjudged a disorderly person or petty disorderly person, during the term of participation in the special probation recovery court program. The provisions of N.J.S.2C:52-7 through N.J.S.2C:52-14 shall not apply to an expungement pursuant to this paragraph and no fee shall be charged to a person eligible for relief pursuant to this paragraph.  The court shall grant the relief requested unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to paragraph (2) of this subsection.  An expungement under this paragraph shall proceed in accordance with rules and procedures developed by the Supreme Court.

     (2)   A person shall not be eligible for expungement under paragraph (1) of this subsection if the records include a conviction for any offense barred from expungement pursuant to subsection b. or c. of N.J.S.2C:52-2. It shall be the obligation of the prosecutor to notify the court of any disqualifying convictions or any other factors related to public safety that should be considered by the court when deciding to grant an expungement under paragraph (1) of this subsection.

     (3)   The Superior Court shall provide a copy of the expungement order granted pursuant to paragraph (1) of this subsection to the prosecutor and to the person and, if the person was represented by the Public Defender, to the Public Defender. The person or, if the person was represented by the Public Defender, the Public Defender on behalf of the person, shall promptly distribute copies of the expungement order to appropriate agencies who have custody and control of the records specified in the order so that the agencies may comply with the requirements of N.J.S.2C:52-15.

     (4)   If the person whose records are expunged pursuant to paragraph (1) of this subsection is convicted of any crime following discharge from special probation, the full record of arrests and convictions may be restored to public access and no future expungement shall be granted to such person.

     (5)   A person who, prior to the effective date of P.L.2015, c.261, was successfully discharged from [a term of] the special probation recovery court program as provided in this section, regardless of whether the person was sentenced to the special probation recovery court program under this section, section 2 of P.L.2012, c.23 (C.2C:35-14.2), or N.J.S.2C:45-1, may seek an expungement of all records and information relating to all arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes that existed at the time of discharge from the special probation recovery court program by presenting an application to the Superior Court in the county in which the person was sentenced to the special probation recovery court program, which contains a duly verified petition as provided in N.J.S.2C:52-7 for each crime or offense sought to be expunged.  The petition for expungement shall proceed pursuant to N.J.S.2C:52-1 et seq. except that the requirements related to the expiration of the time periods specified in N.J.S.2C:52-2 through section 1 of P.L.1980, c.163 (C.2C:52-4.1) shall not apply. A person who was convicted of any offense barred from expungement pursuant to subsection b. or c. of N.J.S.2C:52-2, or who has been convicted of any crime or offense since the date of discharge from the special probation recovery court program shall not be eligible to apply for an expungement under this paragraph.  In addition, no application for expungement shall be considered until any pending charges are disposed.  It shall be the obligation of the prosecutor to notify the court of any disqualifying convictions or any other factors related to public safety that should be considered by the court when deciding to grant an expungement under this paragraph.  The Superior Court shall consider the person's verified petition and may order the expungement of all records and information relating to all arrests, detentions, convictions, and proceedings of the person that existed at the time of discharge from the special probation recovery court program as appropriate.  The court shall grant the relief requested unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to this paragraph.  No fee shall be charged to a person eligible for relief pursuant to this paragraph.

(cf: P.L.2015, c.261, s.1)

     5.    Section 1 of P.L.2012, c.23 (C.2C:35-14.1) is amended to read as follows:  

     1.    a.  Except as provided in subsection c., the court shall require a defendant to submit to a professional diagnostic assessment if:

     (1)   there is a reasonable basis to believe that the defendant may be a drug dependent person as defined in N.J.S.2C:35-2;

     (2)   the defendant is charged with:

     (a)   a crime that is subject to a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1; or

     (b)   any crime of the third degree if the defendant has previously been convicted of a crime subject to the presumption of imprisonment or that resulted in imposition of a State prison term; and

     (3)   the defendant is eligible to be considered for a sentence to the special probation recovery court program pursuant to the provisions of N.J.S.2C:35-14.

     b.    For the purposes of this section, any of the following circumstances shall provide a reasonable basis to believe that a person may be drug dependent:

     (1)   the present offense involves a controlled dangerous substance;

     (2)   the defendant has previously been convicted of an offense involving a controlled dangerous substance, was admitted to pretrial intervention or supervisory treatment, or received a conditional discharge for a charge involving a controlled dangerous substance;

     (3)   the defendant has any other pending charge in this State, any other state, or a federal court involving a controlled dangerous substance;

     (4)   the defendant has any time previously received any form of drug treatment or counseling;

     (5)   the defendant appears to have been under the influence of a controlled dangerous substance during the commission of the present offense, or it reasonably appears that the present offense may have been committed to acquire property or monies to purchase a controlled dangerous substance for the defendant's personal use;

     (6)   the defendant admits to the unlawful use of a controlled dangerous substance within the year preceding the arrest for the present offense;

     (7)   the defendant has had a positive drug test within the last 12 months; or

     (8)   there is information, other than the circumstances enumerated in paragraphs (1) through (7) of this subsection, which indicates that the defendant may be a drug dependent person or would otherwise benefit by undergoing a professional diagnostic assessment within the meaning of paragraph (1) of subsection a. of N.J.S.2C:35-14.

     c.     The court shall not be required to order a diagnostic assessment pursuant to subsection a. of this section if it is clearly convinced that such assessment will not serve any useful purpose.  If the court does not order a diagnostic assessment, the court shall place on the record the reasons for its decision.

     d.    Nothing in this section shall be construed to limit or constrain the court's authority and discretion to order drug testing, drug screening, or a professional diagnostic assessment at any time.

(cf: P.L.2012, c.23, s.1)

 

     6.    Section 2 of P.L.2012, c.23 (C.2C:35-14.2) is amended to read as follows:

     2.    a.  In all cases where a professional diagnostic assessment within the meaning of paragraph (1) of subsection a. of N.J.S.2C:35-14 has been ordered and completed pursuant to section 1 of P.L.2012, c.23 (C.2C:35-14.1), the court shall make a determination at sentencing or prior to sentencing whether the defendant may be a drug dependent person as defined in N.J.S.2C:35-2.

     b.    Notwithstanding any law to the contrary, where the court finds that a defendant is a person in need of treatment as defined in subsection f. of this section and that the defendant additionally meets all the requirements of N.J.S.2C:35-14, the court shall sentence a defendant to the special probation recovery court program pursuant to the provisions of N.J.S.2C:35-14 for the purpose of participating in a court-supervised drug treatment program, regardless of whether the defendant has sought or consents to such a sentence, unless:

     (1)   the court finds that a sentence of imprisonment must be imposed consistent with the provisions of chapters 43 and 44 of Title 2C of the New Jersey Statutes, in which case a sentence of imprisonment shall be imposed; or

     (2)   the court is clearly convinced that:

     (a)   the treatment, monitoring, and supervision services that will be provided under N.J.S.2C:45-1 are adequate to address the defendant's clinical needs;

     (b)   the defendant's treatment needs would not be better addressed by sentencing the defendant to the special probation recovery court program pursuant to N.J.S.2C:35-14;

     (c)   no danger to the community would result from placing the person on regular probation pursuant to N.J.S.2C:45-1; and

     (d)   a sentence of probation authorized under N.J.S.2C:45-1 would be consistent with the provisions of chapters 43 and 44 of Title 2C of the New Jersey Statutes.

     c.     In making the findings and determinations required by this section, 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 also shall also consider the presentence report and the results of any professional diagnostic assessment.  The court shall place on the record the reasons for its decision.

     d.    If, pursuant to paragraph (2) of subsection b. of this section, the court imposes a sentence of probation authorized by N.J.S.2C:45-1, such sentence shall not become final for 10 days in order to permit the appeal of the sentence by the prosecution.

     e.     Nothing in this section shall be construed to alter the presumption of imprisonment contained in subsection d. of N.J.S.2C:44-1 or to require or authorize the reduction or waiver of a mandatory period of parole ineligibility required by law, or to modify the exceptions to such requirements provided for by law, including but not limited to those provided in N.J.S.2C:35-12 and N.J.S.2C:35-14.

     f.     For the purposes of this section, the term "person in need of treatment" means a defendant who:

     (1)   the court has determined to be a drug dependent person as defined in N.J.S.2C:35-2;

     (2)   has been convicted of:

     (a)   a crime that is subject to a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1; or

     (b)   any other crime of the third degree if the person has previously been convicted of a crime subject to a presumption of imprisonment or a crime that resulted in the imposition of a State prison term; and

     (3)   is eligible to be considered for a sentence to the special probation recovery court program pursuant to the provisions of N.J.S.2C:35-14.

(cf: P.L.2012, c.23, s.2)

 

     7.    Section 3 of P.L.2012, c.23 (2C:35-14.3) is amended to read as follows:

     3.    The Administrative Director of the Courts is authorized to phase-in the implementation of the provisions of P.L.2012, c.23 (C.2C:35-14.1 et al.) related to a program of mandatory sentencing and treatment of qualified offenders to the special probation recovery court program based on monies annually appropriated from the General Fund. Within 60 days of the effective date of this act, the program shall be established in no fewer than three court vicinages, and with further implementation occurring in no less than three additional vicinages in each fiscal year thereafter in a manner to be determined by the Administrative Director of the Courts provided that sufficient State funds have been appropriated.  The Administrative Director of the Courts shall select appropriate vicinages for the implementation of the program. The program shall be fully implemented in the State no later than the fifth fiscal year

following enactment provided that sufficient State funds have been

appropriated.

(cf: P.L.2012, c.23, s.3)

 

     8.    N.J.S.2C:44-6 is amended to read as follows:

     2C:44-6  Procedure on Sentence; Presentence Investigation and Report.

     a.     The court shall not impose sentence without first ordering a presentence investigation of the defendant and according due consideration to a written report of such investigation when required by the Rules of Court.  The court may order a presentence investigation in any other case.

     b.    The presentence investigation shall include an analysis of the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, family situation, financial resources, including whether or not the defendant is an enrollee or covered person under a health insurance contract, policy or plan, debts, including any amount owed for a fine, assessment or restitution ordered in accordance with the provisions of Title 2C, any obligation of child support including any child support delinquencies, employment history, personal habits, the disposition of any charge made against any codefendants, the defendant's history of civil commitment, any disposition which arose out of charges suspended pursuant to N.J.S.2C:4-6 including the records of the disposition of those charges and any acquittal by reason of insanity pursuant to N.J.S.2C:4-1, and any other matters that the probation officer deems relevant or the court directs to be included. The defendant shall disclose any information concerning any history of civil commitment.  The report shall also include a medical history of the defendant and a complete psychological evaluation of the defendant in any case in which the defendant is being sentenced for a first or second degree crime involving violence and:

     (1)   the defendant has a prior acquittal by reason of insanity pursuant to N.J.S.2C:4-1 or had charges suspended pursuant to N.J.S.2C:4-6; or

     (2)   the defendant has a prior conviction for murder pursuant to N.J.S.2C:11-3, aggravated sexual assault or sexual assault pursuant to N.J.S.2C:14-2, kidnapping pursuant to N.J.S.2C:13-1, endangering the welfare of a child which would constitute a crime of the second degree pursuant to N.J.S.2C:24-4, or stalking which would constitute a crime of the third degree pursuant to section 1 of P.L.1992, c.209 (C.2C:12-10); or

     (3)   the defendant has a prior diagnosis of psychosis.

     The court, in its discretion and considering all the appropriate circumstances, may waive the medical history and psychological examination in any case in which a term of imprisonment including a period of parole ineligibility is imposed.  In any case involving a conviction of N.J.S.2C:24-4, endangering the welfare of a child; N.J.S.2C:18-3, criminal trespass, where the trespass was committed in a school building or on school property; section 1 of P.L.1993, c.291 (C.2C:13-6), attempting to lure or entice a child with purpose to commit a criminal offense; section 1 of P.L.1992, c.209 (C.2C:12-10), stalking; or N.J.S.2C:13-1, kidnapping, where the victim of the offense is a child under the age of 18, the investigation shall include a report on the defendant's mental condition.

     The presentence investigation shall also include information regarding the defendant's history of substance abuse and substance abuse treatment, if any, including whether the defendant has sought treatment in the past.  If any of the factors listed in subsection b. of section 1 of P.L.2012, c.23 (C.2C:35-14.1) apply, the presentence report shall also include consideration of whether the defendant may be a drug dependent person as defined in N.J.S.2C:35-2.

     The presentence investigation shall include an analysis of whether the defendant should be required to submit to a professional diagnostic assessment within the meaning of paragraph (1) of subsection a. of N.J.S.2C:35-14 in any case where: the defendant may be a drug dependent person as defined in N.J.S.2C:35-2; the defendant is eligible to be considered for a sentence to the special probation recovery court program pursuant to N.J.S.2C:35-14; and the court has not already ordered the defendant to submit to any such diagnostic assessment in regard to the pending matter.

     The presentence report shall also include a report on any compensation paid by the Victims of Crime Compensation Agency as a result of the commission of the offense and, in any case where the victim chooses to provide one, a statement by the victim of the offense for which the defendant is being sentenced.  The statement may include the nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss to include loss of earnings or ability to work suffered by the victim and the effect of the crime upon the victim's family.  The probation department shall notify the victim or nearest relative of a homicide victim of his right to make a statement for inclusion in the presentence report if the victim or relative so desires.  Any such statement shall be made within 20 days of notification by the probation department.

     The presentence report shall specifically include an assessment of the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

     c.     If, after the presentence investigation, the court desires additional information concerning an offender convicted of an offense before imposing sentence, it may order any additional psychological or medical testing of the defendant.

     d.    Disclosure of any presentence investigation report or psychiatric examination report shall be in accordance with law and the Rules of Court, except that information concerning the defendant's financial resources shall be made available upon request to the Victims of Crime Compensation Agency or to any officer authorized under the provisions of section 3 of P.L.1979, c.396 (C.2C:46-4) to collect payment on an assessment, restitution or fine and that information concerning the defendant's coverage under any health insurance contract, policy or plan shall be made available, as appropriate to the Commissioner of Corrections and to the chief administrative officer of a county jail in accordance with the provisions of P.L.1995, c.254 (C.30:7E-1 et al.).

     e.     The court shall not impose a sentence of imprisonment for an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed.  The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.

     f.     (Deleted by amendment, P.L.1986, c.85).

(cf: P.L.2012, c.23, s.6)

 

     9.    Section 159 of P.L.2012, c.16 (C.30:4C-4.5) is amended to read as follows:

     159.  a.  Notwithstanding any law, rule, or regulation to the contrary, commencing on or after the effective date of P.L.2012, c.16 (C.52:27D-43.9a et al.) and subject to the provisions of subsection b. of this section, the Division of Children's System of Care in the Department of Children and Families, in lieu of the Division of Mental Health and Addiction Services in the Department of [Human Services] Health, shall provide, manage, and coordinate services for the treatment of alcoholism and substance abuse for persons under 21 years of age, deemed clinically and functionally appropriate by the Department of Children and Families, as limited by service availability and appropriations and other monies available, and to become available, except that, as agreed to by the Department of Children and Families and the Department of [Human Services] Health pursuant to subsection b. of this section, the Division of Mental Health and Addiction Services may continue to exclusively provide, manage, and coordinate programs and services designed primarily for adults 18 years of age or older, including, but not limited to, services provided pursuant to R.S.39:4-50 and the [Drug Courts] Special Probation Recovery Court Program of this State.

     b.    The Commissioner of [Human Services] Health and the Commissioner of Children and Families, or the commissioners' designees, shall establish and enter into an inter-agency agreement as necessary for the purposes of subsection a. of this section.

     c.     The Commissioners of [Human Services] Health and Children and Families, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt, notwithstanding any provision of P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, immediately upon filing with the Office of Administrative Law, such rules and regulations as the Commissioners deem necessary to effectuate the purposes of section 159 of P.L.2012, c.16 (C.30:4C-4.5), which shall be effective for a period not to exceed 12 months following the effective date of P.L.2012, c.16 (C.52:27D-43.9a et al.).  The regulations shall thereafter be amended, adopted, or readopted by the commissioners in accordance with the provisions of P.L.1968, c.410 (C.52:14B-1 et seq.).

     d.    Whenever any current law, rule, regulation, or order pertaining to the treatment of alcoholism and substance abuse for persons under 21 years of age refers to the Division of Mental Health and Addiction Services in the Department of [Human Services] Health, the same shall mean and refer to the Division of Children's System of Care in the Department of Children and Families, except where the Division of Mental Health and Addiction Services continues to exclusively provide, manage, and coordinate programs and services consistent with this section.

(cf: P.L.2012, c.16, s.159)

 

     10.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would designate the drug court program as the "special probation recovery court program" in the statutes.

     Under the drug court program, in lieu of incarceration a person may be sentenced to an intensive, five-year program of inpatient or outpatient substance abuse treatment, supervision, monitoring, and rehabilitation if the person's conviction is for a non-violent crime and the person is found to be dependent on drugs or alcohol and would benefit from treatment.

     The courts have described the drug court program as "a critical balance of authority, supervision, support and encouragement." In the view of the sponsor, the term "special probation recovery court program" more accurately describes the purposes and goals of the program, since the person's recovery is an essential component. The program is not focused on "drugs" as such, but instead consists of a comprehensive program of treatment and rehabilitation services.

     In the statutes, the program is set out in N.J.S.A.2C:35-14 et al. and is called "special probation." In accordance with the structure and goals of the program, this bill would change its statutory name to the "special probation recovery court program."

     In addition, the bill makes technical changes to the statutes' references to the Division of Mental Health and Addiction Services. The statutes refer to the division as being "in the Department of Human Services." However, the division was moved to the Department of Health pursuant to Reorganization Plan No. 001-2017. This bill corrects the statutory references accordingly, to refer to the Division of Mental Health and Addiction Services in the Department of Health.

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