STATE OF NEW JERSEY v. CHRISTINE CHANSKY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2101-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTINE CHANSKY,
Defendant-Appellant.
___________________________
Submitted March 1, 2018 – Decided April 11, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Accusation No. 16-
07-0546.
Triarsi, Betancourt, Wukovits & Dugan, LLC,
attorneys for appellant (Howard P. Lesnik, on
the brief).
Ann M. Luvera, Acting Union County Prosecutor,
attorney for respondent (Paul J. Wiegartener,
Jr., Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from a January 3, 2017 judgment of
conviction for third-degree practicing medicine without a license,
and a sentence of three years' probation. In particular, defendant
challenges the December 16, 2016 trial court order, rejecting her
appeal of the prosecutor's decision denying her application for
admission into the Pretrial Intervention (PTI) program. On appeal,
defendant makes the following argument:
THE STATE'S DENIAL OF [DEFENDANT] FROM PTI WAS
A PATENT AND GROSS ABUSE OF DISCRETION AND
REQUIRES THIS COURT TO REVERSE AND REMAND THIS
MATTER WITH CLEAR INSTRUCTIONS TO THE
PROSECUTOR'S OFFICE FOR RECONSIDERATION.
A) THE STATE'S RELIANCE ON UNFAIR,
IRRELEVANT AND INAPPROPRIATE
FACTORS - SUCH AS THE DEFENDANT'S
OCCUPATION AS A MEDICAL
PROFESSIONAL - RESULTED IN AN UNJUST
REJECTION FROM THE PTI PROGRAM AND
MUST BE REVERSED.
B) THERE [SIC] A PATENT AND GROSS
ABUSE OF DISCRETION BY THE
PROSECUTOR, AND THE PROSECUTOR'S
DECISION COMPLETELY SUBVERTS THE
GOALS UNDERLYING THE PTI PROGRAM;
WHERE A TRUE EVALUATION OF THE
CRITERIA WOULD REVEAL THAT THE
DEFENDANT IS AN IDEAL CANDIDATE FOR
THE PROGRAM.
Having considered the argument and applicable law, we affirm.
We discern the following facts from the record. Defendant
has a Juris Doctorate degree and was licensed to practice medicine
in New York and Delaware. As early as 1998, defendant became
addicted to Vicodin and attended a substance abuse treatment
program in 1999. However, despite years of substance abuse
2 A-2101-16T1
treatment, defendant admitted relapsing in 2013. In October 2014,
defendant admitted to the New York State Department of Health,
Office of Professional Medical Conduct, that she had diverted some
of her mother's prescription medications for her own personal use.
Specifically, from October 2012 to September 2014, defendant
diverted forty-one prescriptions for Zolpidem (generic for
Ambien), a schedule IV controlled substance, Lorazepam (generic
for Ativan), a schedule IV controlled substance, and Hydrocodone
(an opioid pain medication), a schedule III controlled substance.1
Based in part on this conduct, defendant's medical license was
suspended in New York effective May 12, 2015,2 and her prescription
writing privileges for controlled substances were suspended by the
Drug Enforcement Administration (DEA) on September 1, 2015.
After relapsing in 2013, defendant attended Narcotics
Anonymous and Alcoholics Anonymous meetings. While in treatment,
1
Hydrocodone has since been re-classified as a Schedule II
controlled substance due, in part, to its potential for abuse.
See Schedules of Controlled Substances,
21 C.F.R. 1308.12 (2015);
N.J.S.A. 24:21-4.
2
Defendant's license to practice medicine in Delaware was also
suspended. However, defendant disputed the circumstances leading
to the suspension. The State alleged her license was suspended
in Delaware based on allegations that she self-prescribed
narcotics and cared for patients while under the influence of
narcotics. However, defendant claimed she voluntarily surrendered
her license in Delaware. The trial court did "not consider[]
anything that may or may not have occurred" with regard to her
Delaware license.
3 A-2101-16T1
she befriended a fellow addict, A.R., and eventually began an
"intimate" relationship with him. Although defendant never
treated A.R. as a patient, she wrote numerous prescriptions for
controlled substances for him using her New York State prescription
pad. According to A.R., he would pick up the prescriptions at
defendant's home in New Jersey, fill them at a New Jersey pharmacy
using his prescription plan, and then split the pills with
defendant. Defendant admitted writing prescriptions for A.R.
while her medical license was suspended, but claimed that A.R.
threatened to report her if she did not write the prescriptions.
On February 12, 2016, A.R.'s wife reported defendant to the
police and provided three empty prescription bottles to
corroborate her claim. The prescription bottles showed that on
April 3, July 27, and August 27, 2015, defendant prescribed for
A.R. Zolpidem, Hydrocodone-Acetaminophen (generic for Vicodin),
and Diazepam (generic for Valium), respectively. Further
investigation revealed that between May 12 and September 1, 2015,
defendant issued twenty-seven fraudulent prescriptions using the
names of various friends and family members. The prescriptions,
totaling 1300 pills, were for Tramadol (generic for Ultram), a
schedule IV controlled substance, Alprazolam (generic for Xanax),
a schedule IV controlled substance, and Zolpidem. After her DEA
license was suspended on September 1, 2015, defendant issued an
4 A-2101-16T1
additional nine prescriptions between September 1 and October 12,
2015, ostensibly for her mother, but which defendant diverted for
her own personal use. Those prescriptions, totaling 510 pills,
were for Alprazolam and Zolpidem, were written on defendant's New
York prescription pad, and were filled at New Jersey pharmacies.
As a result, on April 20, 2016, defendant was charged by
complaint-summons with three counts of third-degree distribution
of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-5(b)(4),
one count of third-degree obtaining CDS by fraud,
N.J.S.A. 2C:35-
13, and one count of third-degree practicing medicine without a
license,
N.J.S.A. 2C:21-20(d). Thereafter, defendant applied for
admission into the PTI program. The PTI Director recommended
defendant's admission, but the prosecutor disagreed and overruled
the PTI Director's recommendation. On July 25, 2016, defendant
entered a negotiated guilty plea to a one-count accusation charging
her with third-degree practicing medicine without a license.
Pursuant to the plea agreement, the trial court delayed sentencing
to allow defendant to appeal her rejection from the PTI program.
Following a remand by the court for reconsideration, to which
defendant consented, the State maintained its rejection of
defendant's admission and submitted a detailed statement of
reasons, concluding that the factors and guidelines it relied upon
5 A-2101-16T1
"outweigh[ed] any [f]actors or [g]uidelines that may be in
defendant's favor. . . ."
In the statement, the prosecutor acknowledged that defendant,
then forty-seven years old, was "a highly educated woman" with "no
prior criminal history," "no history of violence, no history of
being involved in organized crime and . . . no codefendants." The
prosecutor acknowledged further that defendant "expressed remorse"
and "admitted [her] complicity[,]" albeit with a "self-serving
explanation as to what transpired in this matter." Nevertheless,
noting that defendant "minimize[d] her role and central
involvement in this fraudulent prescription scheme," the
prosecutor rejected her application initially relying on
"Guideline 3(i)(4) of [Rule] 3:28[,]" providing "that if the crime
charged involves a breach of the public trust, the defendant's
application should generally be rejected."
The prosecutor explained that after defendant's New York and
DEA licenses were suspended, she issued additional fraudulent
prescriptions "for 510 pills." According to the prosecutor, "[b]y
passing such prescriptions, defendant held herself out, at least
to the pharmacies filling the prescriptions as authorized to pass
a New York prescription blank and prescribe a controlled dangerous
substance." Relying on State v. Mahoney,
376 N.J. Super. 63, 94-
98 (App. Div. 2005), aff'd in part, rev'd in part on other grounds,
6 A-2101-16T1
188 N.J. 359, 362 (2006), for support, the prosecutor determined
that "defendant's crimes constitute[d] a breach of the public
trust . . . ." Further, according to the prosecutor, defendant
"failed to provide compelling reasons to . . . overcome the
presumption" against admission, despite defendant's reports that
"she has been attending NA/AA meetings, . . . does volunteer work
to help feed the homeless[,]" and "has been drug free for two
years[,]" a claim the prosecutor disputed.
In rejecting defendant's application, the prosecutor relied
on the following additional factors: the nature of the offense,
N.J.S.A. 2C:43-12(e)(1) (factor one); the facts of the case,
N.J.S.A. 2C:43-12(e)(2) (factor two); the needs and interests of
the victim and society,
N.J.S.A. 2C:43-12(e)(7) (factor seven);
the extent to which defendant's criminal conduct constitutes part
of a continuing pattern of anti-social behavior,
N.J.S.A. 2C:43-
12(e)(8) (factor eight); whether or not the crimes are of such a
nature that the value of supervisory treatment is outweighed by
the public need for prosecution,
N.J.S.A. 2C:43-12(e)(14) (factor
fourteen); 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) (factor seventeen).
7 A-2101-16T1
In connection with factors one and two, the prosecutor
explained that "the nature and facts" of the case were "too serious
to allow defendant to avoid the criminal penalties of her actions"
because her "conduct was not isolated[,]" was done for her own
personal benefit, and "was done in violation of" State and federal
orders prohibiting her from practicing medicine or writing
prescriptions. As to factor seven, the prosecutor distinguished
State v. Bender,
80 N.J. 84 (1979), and noted that "the needs of
society are only met if defendant faces the criminal consequences
of her actions" which made pharmacies "part of [her] criminal
scheme" and caused them to "unwittingly . . . plac[e] dangerous
controlled substances into the public."
With regard to factor eight, the prosecutor reasoned that
defendant's continuous criminal conduct "in multiple states" was
undeterred by numerous opportunities "to address her addiction .
. . over the last thirteen years . . . ." The prosecutor determined
that "[t]here [was] no reason and no empirical track record to
demonstrate PTI diversion [would] change defendant's behavior[,]"
given the fact that "[she] has been unable to address her addictive
behavior through meaningful and lasting self-reform[,]" despite
"having her livelihood at stake[.]" Moreover, the prosecutor
noted that by virtue of defendant's claim that she had been drug
free for the last two years, defendant could not "argue that an
8 A-2101-16T1
existence of personal problems or character traits related to her
crimes weigh[ed] in her favor for entry into PTI ([f]actor five)."
As to factors fourteen and seventeen the prosecutor explained that
defendant's crimes were "of such a nature that the value of
supervisory treatment was outweighed by the public need for
prosecution" and "the harm done to society by abandoning
prosecution . . . outweigh[ed] the benefits to society from
channeling defendant into a diversionary . . . program."
After oral argument, in an oral decision rendered on December
16, 2016, the court determined that defendant failed to "clearly
and convincingly establish[]" that the prosecutor's rejection of
her PTI application constituted "a patent and gross abuse of
discretion." Initially, the court agreed with defendant that the
prosecutor's reliance on Guideline 3(i)(4) was misplaced because
"defendant's alleged actions [did] not constitute a breach of the
public trust . . . ." The court distinguished the cases cited by
the prosecutor in which reliance on Guideline 3(i)(4) was upheld
and concluded that defendant "was neither a public employee, nor
did she have a fiduciary duty to the public . . . that was breached
in this particular case." The court found that "[t]he connection
to the public argued by the [p]rosecutor [was] far too attenuated
. . . ."
9 A-2101-16T1
Nevertheless, the court determined the prosecutor's "reliance
[on Guideline 3(i)(4)] was not clearly erroneous" because although
defendant's conduct of "holding herself out as a licensed medical
professional" did "not amount to a breach of the public trust in
the legal sense[,]" the conduct constituted a breach of the
public's trust "in the non-legal sense, . . . mainly the trust of
pharmacists . . . ." Further, the court concluded that, "[d]espite
[]defendant's argument that the [prosecutor] rejected her without
consideration of the relevant factors, this [c]ourt [found] to the
contrary." The court determined that "after reviewing the entire
file," including numerous character references, the prosecutor
"weighed and considered all relevant Guidelines and factors" and
properly relied on factors (1), (2), (7), (8), (14), and (17) of
N.J.S.A. 2C:43-12(e) to reject defendant's application into PTI.
The court entered a memorializing order and this appeal followed.
First, some basic principles inform our decision. "PTI is a
'diversionary program through which certain offenders are able to
avoid criminal prosecution by receiving early rehabilitative
services expected to deter future criminal behavior.'" State v.
Roseman,
221 N.J. 611, 621 (2015) (quoting State v. Nwobu,
139 N.J. 236, 240 (1995)). The PTI program is governed by
N.J.S.A.
2C:43-12 to 22, Rule 3:28, and the Guidelines for Operation of
Pretrial Intervention in New Jersey, reprinted after Rule 3:28 in
10 A-2101-16T1
Pressler & Verniero, Current N.J. Court Rules (2018). The goal
of PTI is to allow defendants in appropriate situations to avoid
the potential stigma of a conviction and the State to avoid "the
full criminal justice mechanism of a trial." State v. Bell,
217 N.J. 336, 347-48 (2014). "Eligibility for PTI is broad enough to
include all defendants who demonstrate sufficient effort to effect
necessary behavioral change and show that future criminal behavior
will not occur." Roseman,
221 N.J. at 622 (quoting Pressler &
Verniero, Current N.J. Court Rules, Guideline 2 on R. 3:28 (2018)).
Deciding whether to permit a defendant to divert to PTI "is
a quintessentially prosecutorial function[,]" State v. Wallace,
146 N.J. 576, 582 (1996), for which a prosecutor is given "broad
discretion[.]" State v. K.S.,
220 N.J. 190, 199 (2015). It
involves the consideration of a non-exhaustive list of seventeen
statutory factors, enumerated in
N.J.S.A. 2C:43-12(e), in order
to "make an individualized assessment of the defendant considering
his or her 'amenability to correction and potential responsiveness
to rehabilitation.'" Roseman,
221 N.J. at 621-22 (quoting State
v. Watkins,
193 N.J. 507, 520 (2008)). "These factors include
'the details of the case, defendant's motives, age, past criminal
record, standing in the community, and employment performance[.]'"
Id. at 621 (alteration in original) (quoting Watkins,
193 N.J. at
520). The Supreme Court's Guidelines accompanying Rule 3:28 work
11 A-2101-16T1
in harmony with the seventeen individual factors listed in
N.J.S.A.
2C:43-12(e).
That said, the scope of our review of a PTI rejection is
severely limited and designed to address "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)). "In order to overturn a prosecutor's rejection, a
defendant must 'clearly and convincingly establish that the
prosecutor's decision constitutes a patent and gross abuse of
discretion,'" meaning that the decision "has gone so wide of the
mark sought to be accomplished by PTI that fundamental fairness
and justice require judicial intervention." Watkins,
193 N.J. at
520 (first quoting State v. Watkins,
390 N.J. Super. 302, 305-06
(App. Div. 2007); then quoting Wallace,
146 N.J. at 582-83). An
abuse of discretion has occurred where it can be proven "that the
[PTI] denial '(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. Lee,
437 N.J. Super. 555, 563 (App.
Div. 2014) (quoting Bender,
80 N.J. at 93). "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
12 A-2101-16T1
Intervention." Roseman,
221 N.J. at 625 (quoting Bender,
80 N.J.
at 93). "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 [or her] admission into PTI." State v.
Kraft,
265 N.J. Super. 106, 112 (App. Div. 1993).
Applying these principles, we discern no patent or gross
abuse of discretion in the prosecutor's denial of defendant's PTI
application. Thus, there is no basis to disturb the trial court's
decision sustaining the prosecutor's denial. Although defendant
certainly has a number of mitigating factors in her favor, the
reasons for the prosecutor's denial were premised on consideration
of relevant factors, several of which weighed against her
admission. Defendant renews her contention that the prosecutor
based his rejection on a fundamental misunderstanding of what
qualifies as a breach of public trust under Guideline 3(i)(4). We
agree with the trial court that the prosecutor's reliance on
Guideline 3(i)(4) was misplaced; nevertheless, defendant failed
to clearly and convincingly establish that the prosecutor's
decision went so wide of the mark sought to be accomplished by PTI
that fundamental fairness and justice require judicial
intervention.
13 A-2101-16T1
Like the trial court, we reject defendant's contention that
relevant factors required pursuant to
N.J.S.A. 2C:43-12 and Rule
3:28 were not considered. "Absent evidence to the contrary, it
is [to be] presumed that the prosecutor considered all relevant
factors before rendering a decision." State v. Dalglish,
86 N.J.
503, 509 (1981). Equally unavailing is defendant's argument that
the prosecutor "targeted []defendant because she was a doctor, and
then did little more than parrot[] the statutory language rejecting
[]defendant without any substantive analysis[,]" resulting in an
unduly harsh punishment of "a highly-educated woman . . . ." "[A]
court's scrutiny of a prosecutor's denial of consent is normally
limited to the reasons given by the prosecutor for his [or her]
action." Kraft,
265 N.J. Super. at 112. Here, the prosecutor
appropriately referred to the State's version of the facts where
those facts were relevant to the applicable PTI factors, and the
prosecutor's statement of reasons clearly evince a substantive
analysis of valid considerations.
Likewise, we reject defendant's contention that the
prosecutor engaged in impermissible "double counting of factors"
and failed to consider "the compelling factors or character
references" submitted in mitigation. "The facts certainly can be
discussed more than once within a PTI denial letter, insofar as
they may bear on the discrete criteria for eligibility." Lee, 437
14 A-2101-16T
1 N.J. Super. at 570. While the prosecutor rejected some aspects
of defendant's account in his analysis, "[a] prosecutor is
certainly free to disbelieve statements presented by defense
witnesses and to instead credit the anticipated contrary testimony
of the State's witnesses." Id. at 567-68. Moreover, while
reasonable minds might differ as to whether defendant is a suitable
candidate for admission into the program, as the trial court noted,
the court's "role . . . when considering an appeal of this sort"
is "limited" and the "[c]ourt does not have the authority . . .
to substitute its own discretion for that of the [p]rosecutor even
where the [p]rosecutor's decision is one which the . . . [c]ourt
disagrees with or finds to be harsh." See State v. DeMarco,
107 N.J. 562, 566-67 (1987).
Affirmed.
15 A-2101-16T1
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