State v. RC & WD, ? N.J. ?, 2010 N.J. LEXIS 694 (July 21, 2010) – Appellate Division order directing plenary hearings for defendants rejected for Drug Court affirmed in part, reversed in part.
“We hold that a plenary hearing is not necessary, but that, similar to our Pretrial Intervention protocol and our sentencing procedures, an informal hearing is sufficient for the Drug Court to give full and fair consideration to a defendant’s application to the Drug Court program. However, because we cannot fully determine whether the trial court applied the correct legal standard for admission to the Drug Court under the so-called ‘second track’ of the requirements, we remand in each case for further proceedings…. Our basic disagreement with the need for a plenary hearing is the recognition that to determine whether to approve an application for admission to the Drug Court program is essentially a sentencing decision…. An informal hearing before the Drug Court judge is sufficient. Importantly, in weighing the aggravating and mitigating factors relevant to the sentencing decision, our courts traditionally rely on information that was previously submitted by court staff and by the parties, as well as the arguments of counsel. See R. 3:21-2; R. 3:21-4(g). Although it is not expected that there will be testimony, counsel will have an opportunity to argue before the trial judge and make a record. Further, the judge may receive comments from other interested persons, but this is done in an informal fashion without the necessity of a plenary hearing…. In our view, if a plenary hearing were required with testimony and cross-examination of the team members, it might well have a negative affect and upset the balance created by the collaborative team approach. Consistent with the team approach, defense counsel, as a member of the Drug Court team, is actively involved throughout the team’s deliberative and information sharing process and is able to challenge any opinion or assertion of fact offered by a team member…. In short, we conclude that a plenary hearing in which one or more team members would testify is not required at the hearing on a Drug Court appeal. Although Drug Court judges have the discretion to permit witnesses to testify when a genuine issue of material fact needs to be resolved, an informal hearing is sufficient for the court to give full and fair consideration to the applicant’s appeal.”