On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 05-09-01185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 12, 2006
Before Judges Kestin and Graves.
Defendant, Robert Gutowski, was indicted for third-degree theft of controlled dangerous substances while employed as a pharmacist at a drug store. His conduct was discovered through the use of surveillance cameras. Defendant admitted that he had stolen the pills for his personal use on a continuous basis from January 2003 to June 2005, as charged in the indictment. He underwent drug rehabilitation for his addiction and applied for admission to the Middlesex County Pretrial Intervention (PTI) program. The Middlesex County Prosecutor rejected the application, and Judge Mulvihill, on review, declined to overturn that determination.
Defendant appeals, raising the following issues:
POINT I THE LOWER COURT ERRED IN DENYING ROBERT GUTOWSKI'S APPEAL OF HIS PRETRIAL INTERVENTION PROGRAM REJECTION BECAUSE THE PROSECUTOR'S DENIAL OF HIS APPLICATION SUBVERTED THE GOALS OF THE PTI PROGRAM AND CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION REQUIRING REVERSAL.
A. THE PTI DECISION MUST BE REVERSED BECAUSE IT IS NOT BASED ON A CONSIDERATION OF ALL RELEVANT FACTORS.
B. THE PTI REJECTION MUST BE REVERSED BECAUSE IT IS BASED UPON CONSIDERATION OF INAPPROPRIATE FACTORS.
C. THE PTI REJECTION MUST BE REVERSED BECAUSE IT AMOUNTED TO A CLEAR ERROR IN JUDGMENT.
Our analysis of the record, in the light of the written and oral arguments advanced by the parties and prevailing legal standards, discloses that the reasons for decision stated by Judge Mulvihill in his oral opinion reflect a fitting and proper application of the criteria contained in the "Guidelines for Operation of Pretrial Intervention in New Jersey," approved by the Supreme Court for implementation, see R. 3:28, as well as of the standards for applying those guidelines as established in case law for reviewing and passing upon a prosecutorial decision of this type.
Judge Mulvihill weighed the application of the guidelines in the light of the governing cases, and gave special consideration to the result and rationale in a case with similar facts, State v. Bender, 80 N.J. 84 (1979). His assessment of the pertinent factors, with the enhanced deference he was required to give to the Prosecutor's decision, see, e.g., State v. Nwobu, 139 N.J. 236, 246 (1995); State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993), required a conclusion that there had been no "patent gross abuse of discretion on the part of the prosecutor" and that, therefore the court could not overrule the Prosecutor's decision. He regarded the result in Bender as distinguishable because the defendant there had "surrendered [his pharmacist's] license to never ever become a pharmacist again and put the public at risk[,]" and that this defendant "is [not] willing to do that[.]"
Discerning no significant error in Judge Mulvihill's resolution of the matter for the ...