STATE OF NEW JERSEY VS. CONRAD P. LEVULIS, JR. (17-07-0949, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1126-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CONRAD P. LEVULIS, JR.,
Defendant-Appellant.
____________________________
Submitted December 17, 2019 – Decided January 15, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 17-07-
0949.
Joseph E. Krakora, Public Defender, attorney for
appellant (Elizabeth Cheryl Jarit, Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Conrad P. Levulis, Jr. appeals from an October 3, 2018 order
denying his application to compel his admission into the pre-trial intervention
(PTI) program over the prosecutor's objection. We affirm because the Law
Division correctly determined that the prosecutor's decision was not a patent and
gross abuse of discretion.
In 2017, defendant was indicted on one count of third-degree possession
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). The
charge arose out of events that occurred on June 1, 2017. Middletown police
responded to a report of a fight at a residence. Defendant was not involved in
the fight, but officers observed him entering a room and putting his hands inside
a portable closet. After refusing the officers' order to back out of a corner, one
of the officers removed defendant. In plain view, the officers observed five wax
folds of suspected heroin, and an open prescription bottle partially prot ruding
from a mattress. The bottle had defendant's name on it and contained ten wax
folds of suspected heroin. Defendant was arrested.
Thereafter, defendant applied for PTI. The PTI director was against
defendant's admission to PTI and the prosecutor also rejected the application.
The prosecutor based his rejection of defendant's PTI application on three
factors: (1) defendant's lack of motivation to correct his criminal behavior ,
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N.J.S.A. 2C:43-12(e)(3); (2) a pattern of anti-social behavior and lengthy
criminal record, N.J.S.A. 2C:43-12(e)(8); and (3) the need for supervisory
treatment, N.J.S.A. 2C:43-12(e)(14).
Defendant appealed to the Law Division, and the trial court denied his
application to compel his admission to the PTI program. The judge found that
the prosecutor considered all the relevant factors in rejecting defendant's
application. Further, the judge concluded that the rejection was not a patent and
gross abuse of discretion, and was not arbitrary, capricious, or unreasonable.
Following the rejection of his PTI application, defendant pled guilty to an
amended charge of third-degree conspiracy to possess a CDS. Defendant was
then sentenced to one year of probation, fines and penalties, and was required to
undergo substance abuse testing, counseling, and treatment.
On this appeal, defendant argues:
THE COURT ERRED BY FAILING TO FIND THAT
THE PROSECUTOR'S REJECTION OF MR.
LEVULIS'S PTI APPLICATION CONSTITUTES A
PATENT AND GROSS ABUSE OF DISCRETION.
We are not persuaded by this argument.
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. Nwobu, 139 N.J. 236, 240 (1995).
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The goal of PTI is to allow, in appropriate situations, defendants 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, 348 (2014).
PTI is governed by statute and court rule. See N.J.S.A. 2C:43-12 to -22;
R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28
(2020). Deciding whether to permit diversion to PTI "is a quintessentially
prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996).
"Prosecutorial discretion in this context is critical for two reasons. First,
because it is the fundamental responsibility of the prosecutor to decide whom to
prosecute, and second, because it is a primary purpose of PTI to augment, not
diminish, a prosecutor's options." Nwobu, 139 N.J. at 246 (quoting State v.
Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors
are granted broad discretion to determine if a defendant should be diverted" to
PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing
Wallace, 146 N.J. at 582); see also State v. Negran, 178 N.J. 73, 82 (2003)
(stating that courts must "allow prosecutors wide latitude").
"Thus, the scope of review is severely limited." Negran, 178 N.J. at 82
(citing Nwobu, 139 N.J. at 246). Reviewing courts must accord the prosecutor
"extreme deference." Nwobu, 139 N.J. at 246 (quoting Kraft, 265 N.J. Super.
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at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("[G]reat deference should
be given to the prosecutor's determination not to consent to diversion."). 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." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd,
193 N.J. 507 (2008).
"[I]nterference by reviewing courts is reserved for those cases where
needed 'to check [] the "most egregious examples of injustice and unfairness."'"
State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (second alteration in
original) (quoting Negran, 178 N.J. at 82). We apply the same standard of
review as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App.
Div. 2015).
Defendant argues that the rejection of his PTI application by the
prosecutor constituted a patent and gross abuse of discretion for three reasons.
First, defendant contends that the prosecutor relied on past infractions dating
back more than ten years which bear no relation to his current CDS charge.
Defendant's more recent offenses include two disorderly persons offenses and
three municipal court violations.
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In rejecting defendant's PTI application, the prosecutor considered that
many of defendant's charges were for minor offenses but gave due weight to the
"sheer number of them." The record establishes, however, that defendant had
seven separate offenses in Connecticut between 1993 and 1997, and five
separate offenses in this state between 2011 and 2017, which are unabated.
Defendant also argues that the prosecutor failed to justify how the value
of supervisory treatment would not be outweighed by the public need for
prosecution. Such consideration is quintessentially committed to the discretion
of the prosecutor in whether or not to allow a particular defendant into the PTI
program. Defendant is forty-nine years old, reported using heroin weekly since
2016, and struggles with homelessness. After his arrest for the present offense,
he failed to attend three behavioral health appointments within a two-week span
of time. Accordingly, defendant has not demonstrated that the prosecutor
abused his discretion in rejecting defendant from PTI.
Finally, defendant contends that the prosecutor failed to consider relevant
mitigating factors, which included defendant's remote criminal history,
possession of a small amount of heroin for personal use in the present offense,
lack of violence, and amenability to rehabilitation. Our review of the complete
record satisfies us that the prosecutor considered the mitigating factors but found
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them unpersuasive. Consequently, defendant has not shown that the prosecutor
abused his discretion in weighing the mitigating factors.
We are satisfied that the prosecutor appropriately exercised his discretion,
and there is nothing in the record that would demonstrate a patent and gross
abuse of discretion.
Affirmed.
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