Opinion
DOCKET NO. A-4461-10T3
02-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT A. MILLER, JR., Defendant-Appellant.
Lee J. Hughes, attorney for appellant. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-05-0202.
Lee J. Hughes, attorney for appellant.
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant, Robert A. Miller, a pharmacist, appeals from the August 3, 2010 order affirming the rejection of his application for admission into the Pre-Trial Intervention Program (PTI) and, at sentencing on April 1, 2011, the denial, on the record, of his application for reconsideration of the court's earlier decision. We affirm.
The facts are not disputed. Defendant, on five occasions while performing duties as a pharmacist, dispensed OxyContin in excess of the amount prescribed by a customer's physician. He explained that the customer had misplaced her pills and he made up the shortfall, subsequently subtracting from her next prescription the amount of pills he initially advanced to the customer. He submitted an application for admission to PTI. In correspondence dated May 18, 2010, the Salem County Superior Court Criminal Division Case Management Office notified defendant that his application for admission into PTI had been rejected because he had been charged with "the sale or dispensing for Schedule I or Schedule II narcotics." The Prosecutor would not consent to defendant's entry into PTI, and defendant appealed to the Superior Court.
In its June 28, 2010 letter brief to the court opposing defendant's motion to compel entry into PTI, the Prosecutor denied there was a policy to summarily reject PTI applications involving distribution of Schedule I or II narcotics, but indicated there were numerous aggravating factors influencing the decision to reject defendant's application.
First, the Prosecutor noted that defendant's actions did not reflect one transaction but at least three known instances where the customer had been given the pills without the requisite prescription and that defendant acknowledged this conduct on his part had been ongoing for at least three months. Pharmacy technicians had observed suspicious behavior by defendant, including personally filling the customer's prescriptions, something he rarely did for any other customer, his constant counting of the OxyContin pills, which the technicians found to be abnormal, as well as leaving the pharmacy with the customer and sitting in the car with her. It was also suspected that defendant manipulated pharmacy records and, on at least one occasion, forged a prescription. From these facts, the Prosecutor contended defendant's actions did not "implicate a single transaction in which a heartfelt pharmacist wanted to help a suffering customer." The Prosecutor explained that he viewed defendant's conduct as a "profound deviation from ethical standards[.]"
Judge Timothy G. Farrell, after conducting oral argument, denied the appeal, finding that the Prosecutor "went through the required analysis and reviewed the various factors to be considered." The judge concluded defendant failed to establish, by clear and convincing evidence, that the rejection of his application was arbitrary or capricious.
Defendant pled not guilty to the charges and a two-day jury trial was conducted on February 8 and 9, 2011. The jury acquitted defendant of theft but found him guilty of the drug distribution charge. Prior to sentencing, defendant filed a series of motions, including a motion seeking reconsideration of the court's order denying his admission into PTI.
In a letter brief submitted in support of the motion, defense counsel noted defendant's acquittal of the theft charge, the fact that no money had been transferred, the absence of any "clandestine monetary and/or other relationship with the alleged 'buyer[,]'" and the absence of a "[six-]month long period of illegal clandestine behavior." Defense counsel urged that "[i]nstead . . . there was a pharmacist advancing prescription medicine between fillings of the same prescription medication. If this is not a case for PTI[,] then PTI should not exist." The court denied reconsideration, finding the drug distribution conviction to be the more serious offense and noting that "the facts that were important to me in affirming the State's denial of PTI are the facts upon which the guilty verdict on [the drug distribution charge] were based." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I
A POLICY OF DENIAL OF PTI FOR A [THIRD-]DEGREE CRIME IS INAPPROPRIATE UNDER RULE 3:28 AND THE SPECIFIC GUIDELINES ATTACHED THERETO AND SHOULD HAVE RESULTED IN THE
GRANTING OF THE MOTION TO COMPEL. THE STATE'S EFFORTS TO JUSTIFY THEIR ACTIONS AFTER THE FACT SHOULD NOT HAVE IN ANY WAY BEEN ALLOWED TO ALTER THE INITIAL ARBITRARY DECISION.
POINT II
THE REPRESENTATIONS MADE BY THE STATE AT THE TIME OF THE INITIAL MOTION TO COMPEL ENTRY TO PTI AS TO A SIX[-]MONTH PERIOD OF ILLEGAL AND CLANDESTINE BEHAVIOR RESULTING IN MONETARY LOSS TO THE PHARMACY WHICH EMPLOYED THE APPELLANT AS WELL AS NUMEROUS AND CLANDESTINE ILLEGAL ACTS WAS INACCURATE AT THE TIME IT WAS MADE AND WAS LATER PROVED TO BE INACCURATE BY AN ACQUITTAL OF THOSE CHARGES BY A JURY.
At the outset, our review is guided by the well-settled principle that prosecutors are permitted "wide [discretion] in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State V. DeMarco, 107 N.J. 562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). As a result, the scope of our review "is severely limited . . . . [and] serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)) (citations omitted). "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.
"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). In order for a defendant to overturn the prosecutor's denial of his admission, he must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Ibid. (emphasis omitted) (citations and quotations omitted). An abuse of prosecutorial discretion is established where a defendant demonstrates "that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). "[S]uch an abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Ibid. Applying these standards to the case at hand, we conclude that defendant's arguments are without merit.
Defendant contends the Salem County Prosecutor's Office maintains a policy of summarily refusing to join in an application seeking admission into PTI if an individual is charged with a Schedule I or II narcotic offense. The record demonstrates that it was the PTI program director who rejected defendant's application, citing Guideline 3(i) of Rule 3:28, which establishes a rebuttable presumption for rejection from the program for individuals charged with narcotics offenses involving Schedule I or II controlled dangerous substances. Pressler & Verniero, Current N.J. Court Rules, comment on Guideline 3(i) to R. 3:28 (2013). There is no requirement that the Prosecutor join in a defendant's appeal of such a determination. Once defendant filed his appeal, the State was not precluded from responding to that appeal. While we agree that the initial rejection merely checked off the nature of the offense, i.e., "the sale or dispensing for Schedule I or Schedule II narcotics," and did not consider the individual criteria set forth in N.J.S.A. 2C:43-12(e), we do not find this omission fatal in light of the detailed explanation provided by the Prosecutor that followed.
Defendant was charged with an offense for which there is a presumption that he would not be admitted to PTI. He was afforded the opportunity to present "any facts or materials demonstrating [his] amenability to the rehabilitative process, showing compelling reasons justifying . . . admission[,] and establishing that a decision against enrollment would be arbitrary and unreasonable." Pressler & Verniero, Current N.J. Court Rules, comment on Guideline 2 to R. 3:28 (2013). "[T]o establish compelling reasons for admission into PTI, . . . . [such] a defendant must demonstrate something extraordinary or unusual, something 'idiosyncratic,' in his or her background." Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 118 N.J. 1 (1990)). "When . . . the prosecutor refuses to join affirmatively in the filing of an application or later refuses to consent to enrollment, such refusal should create a rebuttable presumption against enrollment." Pressler and Verniero, Current N.J. Court Rules, comment on Guideline 3(i) to R. 3:28 (2013).
Defendant's reliance upon State v. Baynes, 148 N.J. 434, 445-48 (1997), and State v. Caliguiri, 158 N.J. 28, 43-44 (1999), to contend that there was a categorical rejection of his application into PTI based upon the nature of the offense is misplaced. In both Baynes and Caliguiri, the Prosecutor admittedly had adopted a per se rule rejecting PTI applications from defendants charged with certain drug offenses. See Baynes, supra, 148 N.J. at 451 (holding prosecutor's per se rule rejecting applicants for possessory narcotics offenses in a school zone was an abuse of discretion); see also Caliguiri, supra, 158 N.J. at 32 (holding that per se exclusion of defendants charged with violations of N.J.S.A. 2C:35-7 was an abuse of discretion). That simply is not the case here.
Here, the Prosecutor's letter brief in opposition to defendant's appeal of his rejection by the program director provided an individualized evaluation of defendant's application in light of the statutory considerations. See State v. Watkins, 193 N.J. 507, 520 (2008). In short, we find no basis to conclude that defendant "clearly and convincingly establish[ed] that the prosecutor's decision constitute[d] a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (citations and quotations omitted).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION