STATE OF NEW JERSEY v. EDDIE L. LEVINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2418-08T42418-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE L. LEVINE, a/k/a

EDWARD LEVINE,

Defendant-Appellant.

_________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-07-1300.

Galantucci & Patuto, attorneys for appellant (Philip DeVencentes, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On the morning of January 27, 2007, a police officer in Mahwah found defendant Eddie L. Levine in possession of cocaine and drug paraphernalia in a hotel parking lot. Following the rejection of his application to the pretrial intervention program ("PTI") and the denial of his motion to suppress the evidence obtained by the police, defendant pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The guilty plea was pursuant to a negotiated plea agreement, in which the State agreed to recommend a non-custodial sentence. The trial court accordingly sentenced defendant to four years of probation, plus various appropriate fines and penalties.

Defendant now appeals, raising two issues for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BY MISTAKENLY CONCLUDING THAT OFFICER FASULO CONDUCTED A "FIELD INQUIRY[.]" FACTS REVEAL THAT THE OFFICER CONDUCTED AN INVESTIGATIVE STOP "WITHOUT THE REQUISITE REASONABLE SUSPICION OF CRIMINAL ACTIVITY[.]

POINT II

DEFENDANT'S DENIAL OF ADMISSION INTO THE PRETRIAL INTERVENTION (PTI) PROGRAM WAS BASED UPON IRRELEVANT AND INAPPROPRIATE FACTORS AND NOT BASED UPON A CONSIDERATION OF ALL RELEVANT FACTORS AMOUNTING TO A CLEAR ERROR IN JUDGMENT EVIDENCING AN ABUSE OF DISCRETION[.]

Because neither of defendant's arguments is persuasive, we affirm his conviction.

I.

We first address the suppression issue. The sole witness who testified at the suppression hearing was Mahwah Police Officer Christopher Fasulo. The record indicates that, on the morning in question, Officer Fasulo observed defendant's Mercedes parked in the lot of a Sheraton hotel at about 1:30 a.m. At that hour the bar and nightclub on the hotel premises were still open. The Mercedes was parked at an angle that made it difficult for other cars to get around it.

Officer Fasulo observed defendant leaning into the Mercedes with the driver's door open. The officer drew nearer, mindful that there had been a rash of car burglaries recently in the area. The officer activated the lights on his patrol car and also illuminated the interior of the Mercedes with a flashlight. As he approached the vehicle, the officer saw a glass stem on the passenger seat. He knew from his training and experience that such an object was commonly used to ingest crack cocaine. He also saw an insert to a pen, which, according to Fasulo, can be used "as a push for [a] crack pipe." There was also an open container of beer on the car's passenger seat.

Fasulo noticed defendant holding an additional glass stem and a plastic bag in his left hand, items which defendant then tried to conceal. The plastic bag contained six individually wrapped bags of material, which was later confirmed to be crack cocaine.

The officer seized the plastic bag and the glass stems, and placed defendant under arrest. Defendant became belligerent, and challenged the officer's authority to arrest him. He claimed that the cocaine was not for him but rather for a girl with whom he planned to have sex in the hotel. Defendant tried to convince the officer to refrain from charging him because of his alleged status as a former police officer in New York City. He also allegedly threatened to commit suicide.

The trial court upheld the officer's seizure of the contraband, notwithstanding the absence of a search warrant. We agree that the officer's actions were constitutionally valid. Once Officer Fasulo saw the Mercedes parked at a peculiar angle, impeding traffic, with its door open and a person standing next to it, he was justified in approaching the car and undertaking a field inquiry. State v. Pineiro, 181 N.J. 13, 20 (2004) (characterizing a field inquiry as a minimally intrusive police encounter). The officer's initial approach was also authorized as a community caretaking function, particularly given the reports of recent car burglaries in the area. State v. Bogan, 200 N.J. 61, 73-77 (2009) (reaffirming the community caretaking doctrine as an exception to the warrant requirement).

In his analysis of the search and seizure issues, the trial judge accepted the officer's testimony that he observed the glass stem and pen insert within the Mercedes in plain view from outside of the car. State v. Johnson, 171 N.J. 192, 207 (2002) (recognizing the plain view exception to the warrant requirement). A police officer's use of a flashlight to illuminate a car interior is allowable under the plain view doctrine. State v. Nishina, 175 N.J. 502, 517-18 (2003).

Almost immediately after Officer Fasulo spotted the drug paraphernalia in the car, he then observed defendant holding the plastic bag and the other glass stem, and attempting to conceal them from the officer in a coat pocket. The totality of the circumstances provided the officer with a reasonable suspicion of criminal activity, so as to allow defendant to be constitutionally stopped and frisked. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); State v. Rodriquez, 172 N.J. 117, 126-27 (2002). Once the contraband was found, the circumstances were sufficient to furnish probable cause to arrest defendant and to seize the illegal items.

In sum, the search and seizure in this case was constitutionally permissible, and none of the cases cited by defendant compel a different result.

II.

We turn to the rejection of defendant's PTI application. In reviewing that rejection, we note that our scope of review is extremely circumscribed.

Given "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). That deference to the prosecutor has been described as "'enhanced' or 'extra' in nature." Ibid. (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). Consequently, judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). As the Court noted in Negran, judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); see also State v. DeMarco, 107 N.J. 562, 566 (1987). "A defendant attempting to overcome a prosecutorial veto [of PTI admission] 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' before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246).

In the present case, defendant's PTI application was not only rejected by the prosecutor but also by the PTI program director in the Criminal Division. The record reflects that after the instant arrest on January 21, 2007, defendant was again charged with wrongdoing after an incident on March 19, 2007 at the local high school. In that ensuing incident, defendant reportedly drove his Mercedes over a curb and into a trash can. He then got out of the car, walked into the school shouting, broke a window, and then got back into his car and drove off all while children were reportedly present. This incident led to defendant being charged with several disorderly persons offenses in the municipal court. Defendant then entered into a plea agreement placing the municipal charges in abeyance for a year, on specified conditions. A month later, he was indicted on the present drug offense.

The prosecutor mainly rejected defendant's PTI application because of his belligerent and inappropriate conduct at the time of his arrest on the drug offenses, and also because of his ensuing misconduct two months later at the high school. Either reason suffices to support the conclusion of the prosecutor and the program director that defendant was not a suitable candidate for PTI. See N.J.S.A. 2C:43-12e(1), (2), (7), (8), (9), (14) and (17). The trial judge fairly considered defendant's request for leniency, including representations that he has successfully operated a private security firm for many years and has been active in coaching local student athletes. Given the record as a whole, we discern no reason to interfere with the trial judge's assessment that "both the [p]rosecutor and the PTI director were correct in denying the [defendant's] admission into PTI."

Affirmed.

 

Defendant places special reliance upon an unpublished opinion of this court, in which we suppressed evidence that had been taken from a defendant in a parked car because the police officer who seized the evidence did not have a reasonable articulable suspicion that the defendant had been engaging in criminal activity. The opinion, which has no precedential value, see Rule 1:36-3, does not alter our analysis because the facts here are distinguishable. In particular, the officer in the unpublished case had no basis to suspect criminal activity when he parked his patrol car only a few feet behind the defendant's vehicle, effectively pinning it next to a retaining wall. There also was no effort by the State in that case to justify the officer's actions based upon legitimate community caretaking functions.

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A-2418-08T4

December 16, 2009