STATE OF NEW JERSEY v. LEONID KRUPOVLYANSKIY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0659-05T10659-05T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LEONID KRUPOVLYANSKIY,

Defendant-Respondent.

_______________________________________________________________

 

Submitted June 5, 2006 - Decided July 17, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. 04-12-1583.

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for appellant (Melanie G. Smith, Assistant Prosecutor, on the brief).

DiLorenzo & Rush, attorney for respondent (Kenneth R. Rush, on the brief).

PER CURIAM

Plaintiff, the State of New Jersey (State), appeals from the Law Division's August 30, 2005 order denying the State's motion for reconsideration of the Law Division's May 10, 2005 order memorializing Judge Ahto's May 10, 2005 written decision admitting defendant, Leonid Krupovlyanskiy into the Pre-trial Intervention Program (PTI) over the objection of the State. On March 12, 2004, defendant was arrested for allegedly promoting prostitution, as proscribed by N.J.S.A. 2C:34-1b(2), a fourth-degree offense. On March 12, 2004, an undercover task force officer from the Morris County Prosecutor's office placed a telephone call to a New York-advertised telephone number from an escort website entitled "theeroticeview.com." An appointment was made for "Carmella," later identified as Wendy Muniz, to travel to the Hilton Hotel in Rockaway.

Approximately an hour thereafter, officers observed a vehicle driven by defendant pull up to the hotel. Muniz went up to the hotel room, introduced herself as "Carmella," and had the undercover officer sign a user agreement, which stated he was not a police officer. Muniz informed the undercover officer her fee to engage in sexual intercourse with him would be $220, $20 of which would go to her driver. After receiving the money, Muniz made a telephone call stating she was okay, entered the bathroom and emerged in a g-string. Thereafter she was arrested for engaging in prostitution, contrary to N.J.S.A. 2C:34-1b(1), a disorderly persons offense.

A motor vehicle stop was then initiated on defendant, who was advised that the woman he had dropped off was arrested for prostitution. Defendant stated he did not know Muniz was a prostitute but believed that the woman he drove merely provided "companionship," explaining that she had men sign "user agreements" wherein the customers were told they were not to engage in sexual activity with the escorts. After defendant consented to a search of his vehicle, police found a box of condoms, a user agreement and $425 in cash. After being taken to Rockaway Township Police Headquarters, defendant told the police that he was born in Russia, he was now a United States citizen, he was married, and his wife was expecting a child. He explained he had been out of work and took the job driving escorts to make money and that he got paid a commission depending upon how far he drove his own car to an appointment. He explained he got the job from "a guy named Eddie," who he met in a Manhattan bar, but did not know his last name. He was interviewed over the telephone and had to provide his personal vehicle documentation to the escort service. He stated he worked three to four times per week for twelve hour shifts, and the women he drove stayed at each location for approximately one hour. Defendant denied knowing the women were engaging in prostitution.

On April 27, 2004, defendant attended a pre-indictment conference and was advised by the prosecutor that the State would be withholding consent to his admission into PTI because he had been charged with a "quality of life offense." Notwithstanding the State's position, defendant applied for PTI on April 27, 2004, and on April 30, 2004, he was recommended for admission by the PTI program director under certain supervisory conditions. The director's recommendation noted that defendant had no known criminal history, that he and his wife were expecting their first child, and that he was enrolled in real estate school after having lost his job as a computer programmer.

Eight months later, in December 2004, defendant was charged in Morris County Indictment No. 04-12-01583-I with one count of fourth-degree promoting prostitution contrary to N.J.S.A. 2C:34-1b(2). On January 20, 2005, an initial conference was held before Judge Ahto at which the State offered a probation sentence in return for a guilty plea. Defendant advised the court of his application for PTI and of the director's recommendation of his admission into the program. The State verbally noted its objection to his admission.

On February 4, 2005, defendant mailed a copy of the PTI director's recommendation for admission into the PTI program to the State. By letter dated March 10, 2005, the State advised defendant that it had determined to withhold consent to his admission into PTI.

On March 23, 2005, defendant appealed the State's decision to withhold consent contending that the State failed to apply any of the PTI guidelines set forth in Rule 3:28 or the seventeen statutory criteria contained in N.J.S.A. 2C:43-12e(1) to -12(e)17. Defendant claimed that the State made no effort to examine and apply any of defendant's personal facts to either the guidelines or statutory criteria and that its denial based on the nature of the offense rose to a per se prohibition against individuals charged with crimes involving prostitution.

On March 26, 2005, the State responded, contending that defendant was not an appropriate candidate for PTI because there was no rehabilitative service the program could provide because defendant was engaged in an unlawful practice for income, society as a whole was the victim of defendant's crime, the business of promoting prostitution is organized criminal activity, and defendant was an integral part of a bigger criminal enterprise that crossed state borders. The State asserted that defendant's conduct constituted a pattern of anti-social activity and his organized criminal activity outweighed other positive factors that may warrant his admission into PTI.

On May 10, 2005, Judge Ahto, in a well-reasoned written opinion, granted defendant's appeal of the State's denial of his admission into PTI. The judge reviewed the heavy burden placed on defendant to clearly establish that the prosecutor's refusal to sanction admission was a patent and gross abuse of discretion, in that the refusal resulted from a failure to consider all relevant factors and was based on irrelevant or inappropriate factors or constituted a clear error of judgment. The judge found that the State's rejection was impermissibly focused on the nature of the offense, it did not focus on defendant as an individual, and the purposes, goals and considerations for admission into PTI enumerated in N.J.S.A. 2C:43-12 and Rule 3:28 would be thwarted if defendant were not admitted. After applying the PTI guidelines to the facts present in defendant's case, the judge concluded

the State's rejection of this defendant for admission into PTI focuses on the nature of the offense and its albeit commendable quality of life initiative. The focus is not on the defendant individually, however, including his amenability to rehabilitation and the progress and achievements he has accomplished. This is contrary to this Court's understanding of the Supreme Court's holding in State v. Baynes, [ 148 N.J. 434 (1997)] . . . .

The court determined that the rejection was instead based on a per se rule prohibiting defendants charged with crimes involving prostitution from admission into PTI.

The State moved for reconsideration on the basis that the judge relied on irrelevant factors and failed to state the facts he relied upon in arriving at his decision to admit defendant into PTI. In his August 30, 2005 oral decision, the judge denied the State's application for reconsideration, noting that his decision was grounded in the appropriate case law and application of that law and the PTI guidelines to defendant.

On December 22, 2005, Judge Ahto entered an order for entry into the PTI program which provided in pertinent part,

ORDERED that Defendant Leonid Krupovlyanskiy . . . is hereby considered to be enrolled in the PTI program effective as of May 10, 2005 subject to the following conditions:

(1) Twelve Month (12) PTI Supervision Program enrollment;

(2) Payment of $75.00 SSCP fine;

(3) Payment of $50.00 VCCB fine;

(4) Payment of $30.00 for Safe Neighborhood Services Fund assessment;

(5) Payment $30.00 for Law Enforcement Officers Training and Equipment Fund penalty; and

(6) Random Urine Monitoring; and it is

FURTHER ORDERED that upon satisfaction of the aforementioned conditions defendant Leonid Krupovlyanskiy shall have successfully completed the PTI program and shall be discharged from same[.]

The State raises the following arguments for our consideration:

THE COURT FAILED TO RECOGNIZE THAT A PRESUMPTION AGAINST ADMISSION EXISTED IN SUCH A CRIME WHEREIN THE CRIME WAS A PART OF ORGANIZED CRIMINAL ACTIVITY OR WAS A PART OF A CONTINUING CRIMINAL BUSINESS.

THE PROSECUTOR DID NOT MAKE A CLEAR ERROR IN JUDGMENT IN REJECTING THIS APPLICATION.

THE COURT RELIED UPON IRRELEVANT MATERIALS IN COMING TO ITS DECISION TO OVERRIDE THE STATE'S DECISION NOT TO CONSENT TO DEFENDANT'S ADMISSION INTO PTI.

We have considered these contentions in light of the record and applicable principles of law, and we reject them. We affirm substantially for the reasons set forth in Judge Ahto's comprehensive and well-reasoned written opinion dated May 10, 2005. See R. 2:11-3(e)(2).

Affirmed.

 

(continued)

(continued)

8

A-0659-05T1

July 17, 2006