Prosecutors who let otherwise prison-bound defendants into the state’s drug court program do not waive the right to seek expanded sentences if they are later booted for violating probation, an appeals court says.

The precedential opinion in the consolidated cases of State v. Bishop, A-0048-11, and State v. Torres, A-1399-11, could impact thousands of enrollees in drug court — an alternative to prison for drug- or alcohol-addicted defendants who are charged with nonviolent offenses and have no history of violent crime.

Under the five-year program, they are assessed, referred to treatment and closely monitored through frequent and random testing and repeated court appearances.

Darryl Bishop and Wilberto Torres, who both pleaded guilty to possession with intent to distribute heroin within 1,000 feet of a school and had prior drug convictions that would have enabled the prosecutor to seek an extended prison term.

As part of their plea deals, the prosecutor agreed to sentence Bishop and Torres to special probation and send them to Drug Court.

The plea agreements contained an "alternate sentence" of seven years in prison with no parole for 42 months.

Both men violated the special probation and neither argued that it should not have been revoked as a result. But on resentencing, they opposed the prosecution’s request for imposition of the alternative sentences.

Middlesex County Superior Court Judge Lorraine Pullen found the same three aggravating factors existing at the time of original sentencing — prior record, risk of another offense and the need to deter — were still present and were not offset by mitigating factors.

She sentenced Bishop to the seven years and 42 months parole ineligibility sought by the prosecutor and Torres to seven years, with 36 months ineligibility, six months less than requested.

Both men argued on appeal they should have been sentenced at most to four years with no parole ineligibility.

The argument on appeal was that the sentences imposed violated the principles set forth in Supreme Court decisions between 1989 and 1992 that found limits on resentencing after revocation of probation and recognized the waiver concept.

The Appellate Division affirmed, finding that different rules apply to resentencing depending on which type of probation is revoked.

Regular probation under N.J.S.A. 2C:43-2b(2) is meant for minor offenders who would not necessarily be sent to prison. Special probation under N.J.S.A. 2C:35-14, added in 1999, was intended for those whose crimes would garner them prison time and who were not eligible for regular probation.

As the Appellate Division pointed out, the regular probation statute says that when a court revokes probation, "it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted."

The special probation statute allows the resentencing judge to 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 appeals court read that language as reflecting legislative intent to provide a separate resentencing regime for special probation, one that "constitutes a marked departure from the regular probation standard and provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation."

The difference between the two standards "comports with the fundamental difference in admission criteria to special probation as opposed to regular probation," the court said.

Judges Joseph Lisa, Marie Simonelli and Ellen Koblitz noted that when the Legislature added the special probation standard, it did not change the one for regular probation, indicating it meant them to be different.

Assistant Deputy Public Defender John Douard says Bishop and Torres were entitled to a more substantive hearing on revocation but declines further comment.

The Middlesex County Prosecutor’s Office did not respond to the decision by press time.

The attorney general and the Association of Criminal Defense Lawyers of New Jersey submitted amicus briefs at the panel’s invitation.

The attorney general’s spokesman, Peter Aseltine, says "We’re pleased that the court properly construed the relevant statutes in the way that maximizes the incentives for otherwise prison-bound defendants to succeed in Drug Court’s special probation program, as opposed to creating incentives for them to fail out."

Jeffrey Mandel, of PinilisHalpern in Morristown, who wrote the ACDL-NJ brief, says, "the decision affects a lot of people who try to fight the drug demon through the strictures of Drug Courts but lose that fight and face resentencing when their special probation is revoked."

Court statistics as of Feb. 4, show more than 13,000 defendants admitted to Drug Court since 2002, with 4,887 currently enrolled. Almost 57 percent of those in the program have remained in, without dropping out or having probation revoked. •