STATE OF NEW JERSEY v. ELIZABETH A. POWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6299-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIZABETH A. POWELL,

Defendant-Appellant.

________________________________

November 2, 2011

Submitted July 19, 2011 - Decided

Before Judges Sapp-Peterson and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-12-1227.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Paul D. Colangelo, Senior Assistant Prosecutor, and Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Elizabeth A. Powell, appeals from the denial of her application for admission into the Pre-Trial Intervention (PTI) Program. We affirm.

Defendant began employment as a pharmacy clerk at a local CVS in Franklin Township in December 2006. Sometime in early 2007, she began stealing prescription pills from the pharmacy. Following an investigation prompted by a suspicious prescription, defendant was interviewed and admitted that she had been taking medications from stock, which in turn required her to order more medications in order to conceal her actions. In a seven-count indictment, defendant was charged with theft and narcotics-related offenses. She applied for admission into the PTI Program. The Criminal Division Manager for Vicinage XV rejected the application, explaining that under the PTI Guidelines, "defendants charged with acts which constitute participation in a continuing activity or business (as evidenced by the material contained in the [P]rosecutor's file) should ordinarily be denied admission into [the PTI] Program in the absence of compelling facts and materials provided by the defendant, justifying admission into the Program." The Prosecutor agreed with the Criminal Division Manager's reasons for rejecting the application and refusing consent.

Defendant appealed the denial to the trial court. The trial court reversed, finding that "Guideline 3(i)(2) requires that [defendant's] actions be 'part of a continuing criminal business or enterprise[,]' which is not the case here." The court remanded to the Prosecutor with direction that defendant's application be reconsidered "without considering Guideline 3(i)(2)."

Upon reconsideration, the Prosecutor once again rejected defendant's application, filing a letter brief with the court in which the State indicated that it considered the appropriate statutory factors for determining admission into PTI as set forth in N.J.S.A. 2C:43-12(e)(1) to (17). In particular, the Prosecutor considered "the extent to which [defendant's] crime constitutes part of a continuing pattern of anti-social behavior[,]" N.J.S.A. 2C:43-12(e)(8), and "whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program[,] N.J.S.A. 2C:43-12(e)(17).

In that regard, the Prosecutor noted that "[n]ot only are [defendant's] continued crimes themselves instances of repeated anti-social behavior, her crimes enabled others to commit crimes, namely all of her buyers who had no business and no legal privilege to utilize the defendant as the pharmacist she obviously aspires to be." The Prosecutor reiterated the trial court's standard of review and argued "the State's continued objection is [not] a patent and gross abuse of discretion." The trial court agreed, concluding that the State did not abuse its discretion in characterizing defendant's action in stealing from her employer and, in turn, selling medications without a license, as anti-social behavior within N.J.S.A. 2C:43-12(e)(8).

We review a trial judge's decision upholding the denial of PTI for an abuse of discretion. State v. Nwobu, 139 N.J. 236, 246-47 (1995). To that end, we recognize that the initial decision to accept or reject a defendant's PTI application is committed to the sound discretion of the Prosecutor. State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977). A prosecutor's refusal to consent to the diversion of a particular defendant is afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). Consequently, the scope of a trial court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89-90 (1979).

In short, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:

Ordinarily, an abuse of discretion will be manifest if defendant can show 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[Bender, supra, 80 N.J. at 93 (citation omitted).]

Measured in accordance with these principles, we are satisfied the trial judge properly found the Prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion. The Prosecutor was not precluded from considering whether the nature of defendant's criminal offense reflected a continuing pattern of anti-social behavior. N.J.S.A. 2C:43-12(e)(8) specifically authorizes a prosecutor to consider "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior." Consideration of this factor did not require a finding that defendant was engaged in a continuous course of criminal enterprise in selling Schedule I or Schedule II controlled dangerous substances for which a presumption against admission into PTI would apply. See Pressler and Verniero, Current N.J. Court Rules, guideline 3i on R. 3:28 (2011). As the Prosecutor noted in its opposition letter to the court, defendant's ongoing theft of medications for resale to others reflected repeated instances of anti-social behavior, which enabled others to engage in criminal activities as purchasers of the pills she was stealing and selling.

Affirmed.