OF NEW JERSEY STATE OF NEW JERSEY v. MILDRED A. RUZICH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4669-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MILDRED A. RUZICH,

Defendant-Appellant.

___________________________________

September 15, 2010

Submitted August 31, 2010 - Decided

Before Judges Simonelli and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-0205.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

BruceJ. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mildred Ruzich appeals the denial of her application into the Pre-Trial Intervention (PTI) program. We affirm.

I.

The following relevant facts are taken from the record.

Based on information from a confidential informant that Ruzich was selling prescription pills from a safe in her mini-van, a Woodbridge Township police detective conducted a surveillance of her home in the Fords section of Woodbridge. During the surveillance, codefendant Brian D. Erickson came to the front door of Ruzich's house and spoke with her. After the conversation, she went to her mini-van with cash and returned with some pills. After Erickson drove away, the police stopped him and seized the pills. He told the police that he had purchased them from Ruzich for thirty-five dollars.

The police applied for and received a search warrant for Ruzich's house and the mini-van. As the police were executing the search warrant on November 9, 2007, codefendant Russell R. Borawski came to the house. Borawski told police that he and his girlfriend had come to Ruzich's house in order to purchase Oxycodone. He also told police that he had been purchasing Oxycodone from her for the past six months. His girlfriend told police she had been buying drugs from Ruzich for the past year. Borawski was also arrested.

The police uncovered numerous medications during the search, including nine Oxycodone pills, eighty-two Endocet pills, fifty-eight IBU 800 milligram Motrin pills, five Lidoderm patches, twenty-five Carisprodols, eight Demerol pills, ninety-four Alprazolam pills, and $269 in cash.

On January 31, 2008, Ruzich was charged with third-degree unlawful possession of a controlled dangerous substance (CDS), Oxycodone, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(5) (count two); and third-degree distribution, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(5) (count three). Following indictment, Ruzich applied for admission into the PTI program.

On March 12, 2008, staff at the Middlesex County Criminal Division recommended rejection of her application for PTI. The report attached to the staff letter described the factual background set out above. The report gave the following reasons for recommending that Ruzich be rejected from PTI:

[Defendant] has many health conditions, is under the care of psychiatrist, a pain doctor and a general physician, and is prescribed medications. She has had many hardships in her lifetime and many over-whelming personal problems.

[Defendant] obviously obtained prescription medication in excess of what she needed to take and sold the drugs for personal profit.

[Defendant] denies involvement of drug sales, stating she gave co-[defendant] Erickson drugs after he hurt himself while working at her house. She may be minimizing her involvement in sales. Based on the co-[defendant's] account of the length of time [defendant] was selling drugs, it is felt that the short term supervision provided by the PTI program is not enough of a deterrent for this [defendant]. The [defendant] is rejected from PTI and should be handled via traditional means.

By letter dated March 25, 2008, the Middlesex County Prosecutor's Office informed defense counsel that the prosecutor would not consent to Ruzich's admission to PTI. In addition to agreeing with the reasons expressed by the Criminal Division staff, the prosecutor added the following:

1. The nature of the offense and the facts of the case prohibit enrollment into PTI program. (Police observed defendant make sales to co-defendants and the police received information that the defendant was selling CDS from her motor vehicle). Admission into PTI would depreciate the seriousness of the defendant's behavior.

2. There is a serious need to protect society from this type of crime behavior.

3. This is not a victimless crime.

4. The defendant has two prior conviction adult arrests which [took place] in 1969.

5. This case should be prosecuted in the traditional manner.

Ruzich appealed to the Law Division. Judge James F. Mulvihill heard argument on May 21, 2008, and then delivered an oral opinion in which he reviewed in some detail the factors favoring Ruzich's admission to PTI and those favoring the prosecutor's position. Although he expressed the view that he would "probably" have placed Ruzich in PTI had he been the prosecutor, Judge Mulvihill determined that she "failed to establish by clear and convincing evidence that the prosecutor's decision to reject [her] was a patent, gross abuse of discretion." Consequently, he "reluctantly" denied the appeal.

This appeal followed.

II.

Ruzich raises the following issue before us.

POINT I: BECAUSE IT CONTAINED NO INDIVIDUALIZED EVALUATION, THE REJECTION OF DEFENDANT'S APPLICATION FOR ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM WAS A PATENT AND GROSS ABUSE OF DISCRETION AND MUST BE REVERSED.

A.

Judicial review of decisions to reject applications for PTI is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 2003), serving to "check only the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). To set aside a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constituted "a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008); State v. Dalglish, 86 N.J. 503, 509 (1981). "[A] party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a 'clear error in judgment.'" Nwobu, supra, 139 N.J. at 247 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). A rejected applicant may also satisfy this heavy burden by showing that the prosecutor's error "will clearly subvert the goals underlying Pretrial Intervention." Bender, supra, 80 N.J. at 93.

B.

Although we agree with Ruzich that the specific reasons set forth in the prosecutor's letter are largely cursory, she ignores the fact that the letter incorporates by reference the more specific reasons articulated in the Criminal Division's negative recommendation. In denying Ruzich's appeal, Judge Mulvihill carefully analyzed the appropriate criteria in light of the staff recommendation. Although he might have reached a different conclusion de novo, he correctly recognized the fundamental principle that the decision whether to divert a defendant from the criminal process lies within the discretion of the prosecutor and not the judge. Nwobu, supra, 139 N.J. at 246. His conclusion that the prosecutor's decision in this case was not "a patent and gross abuse of discretion," Watkins, supra, 193 N.J. at 520, was fully supported by the record.