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a2418-08.opn.html
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. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE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, 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
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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
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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 wvWare/wvWare version 1.0.3
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