December 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAHIM LUCAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 05-01-0073.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Weissbard and Baxter.
Defendant Sahim Lucas appeals his conviction of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and his resulting State Prison sentence of five years with two-and-a-half years of parole ineligibility. We affirm.
Because defendant contends that the trial court erroneously denied his motion to suppress, we set forth the essential facts as they were found by the motion judge in his oral opinion of January 27, 2006. On October 30, 2004, at approximately 4:30 a.m., defendant was ejected from the Trump Plaza Casino due to disorderly conduct. At about 6:00 a.m. that same morning, defendant, having reentered the Casino, was again confronted by security personnel due to another episode of disorderly behavior. After security guards told defendant that if he did not leave the police would be called, defendant left voluntarily. It was not clear whether he was escorted out of the Casino. Casino policy was that, once ejected a patron could not re-enter the Casino unless the ejection order was rescinded by the vice-president of security operations. However, there was no evidence that defendant was advised of that policy.
Sometime later that morning one of the security officers involved in defendant's 6:00 a.m. ejection encountered defendant again in the adjacent Trump Plaza bus transportation center where defendant was in a seat, sleeping. Because the transportation center was part of the Casino property, the officer decided to call the Atlantic City Police for assistance in removing defendant. At approximately 7:15 a.m. Officer Donnell responded. She found defendant slumped over on a chair surrounded by several Trump security officers. The interaction between Officer Donnell and defendant was recorded on a surveillance tape introduced in evidence and reviewed by the motion judge at the hearing. The facts found by the judge were as follows:
Officer Donnell carefully approached defendant with her flashlight and attempted numerous times, at least two or three from my view of the tape, to rouse him by touching him on the arm and explaining to him that he must leave the property. Officer Donnell gave the defendant the opportunity to end the episode voluntarily and without arrest and incident, urging him to leave the property and avoid arrest. His judgment potentially impaired by the consumption of several potent alcoholic beverages, defendant in response picked up his head and opened his eyes, shook his head and refused to leave by continuing to sit there. He expressed his refusal in explicit and vulgar words to Officer Donnell. It was clear that the defendant was not going to leave Trump voluntarily even after being evicted twice already. Finally, Officer Donnell took hold of the defendant's right shoulder and attempted to stand him up and escort him out. As she did this, the defendant pulled his arms away and struck Officer Donnell in the mouth as he attempted to move away. This prompted Office Donnell to immediately deploy her OC canister and spray him with two short bursts. A struggle ensued and after a brief period of resistance with the assistance of Officer M. Murray and Trump security officer Krachtus, the defendant was arrested for his assault upon a police officer.
After defendant's arrest, the judge found the following:
Defendant was patted down curb side before being placed in a patrol - - and forcibly taken into custody. He was then patted down curb side before being placed into a patrol car for the safety of himself and the officers. No contraband was found on the defendant during the pat-down. Once in custody defendant was transported by Officer Murray's patrol car to the Public Safety Building. Upon arrival he was subjected to post-arrest procedures prior to admission to the Atlantic County Justice Facility. During the course of these procedures, Officer Donnell told defendant to remove the laces from his shoes, a standard safety measure. Defendant refused to do this, but rather decided to remove his shoes and socks entirely. While it's not completely clear from the record what the -- how they came off, it appears the defendant removed them. Whether they flew or blew or otherwise came off, the defendant was the - - the actor and the agent of their removal. When he did this, a plastic bag hidden in defendant's shoe or sock fell to the floor. Officer Donnell seized the plastic bag that contained 31 smaller bags which contained a white rock-like substance in the defendant's sock that in Officer Donnell's experience was consistent with CDS, that is cocaine.
While defendant provided a different version of the facts, the judge's findings are supported by credible evidence on the record, and we are bound by them. State v. Locurto, 157 N.J. 463, 474 (1999).
Defendant was indicted for the following offenses: third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (counts one and two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count three); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count four); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (count five). After a five-day jury trial in March 2006, defendant was found not guilty on counts one, two and three. As stated above, he was convicted on count four. The jury could not reach a verdict on count five, which was ultimately dismissed.
Defendant argues that the seizure of the cocaine during his jailhouse search was the fruit of his unlawful arrest by Officer Donnell. We disagree.
At the outset, it is clear that Officer Donnell's interaction with defendant, in which she ultimately laid hands on him in order to remove him from the premises, constituted a seizure for constitutional purposes. The State does not contend otherwise. All parties agree that such a seizure must be justified by probable cause. The State argues that the officer had a reasonable basis to believe that defendant was a defiant trespasser, based on his earlier ejection from the Trump Casino. N.J.S.A. 2C:18-36. We are inclined to disagree. The record does not support a conclusion that Trump personnel ever informed defendant that he could not be anywhere on Trump property outside the Casino. Specifically, it is doubtful whether defendant ever understood that the transportation center, where one would go to depart from the area, was forbidden territory. In any event, we have no need to definitively resolve that issue. For purposes of the discussion which follows, we may assume defendant was unconstitutionally seized.
The finding that defendant struck Office Donnell as she attempted to rouse him and get him to move is well-supported by the record. It does not matter that defendant may have been intoxicated or in the process of coming out of an intoxicated state. Officer Donnell had probable cause to arrest defendant for assault and resisting arrest. Defendant's action in providing probable cause to believe he had committed these offenses served to break the chain between the arguably unconstitutional seizure and his arrest and ensuing search. We conclude that the rationale of State v. Williams, 192 N.J. 1 (2007) and State v. Crawley, 187 N.J. 440, cert. denied, ____ U.S. ____, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006), are dispositive on this issue. We are unpersuaded by defendant's attempt to distinguish those cases nor does it undermine our analysis that defendant was acquitted at trial of the very charges that justified his arrest. Williams, supra, 192 N.J. at 10 n.5. Accordingly, we conclude that the motion to suppress was properly denied.
Defendant argues that his sentence was excessive. As noted, defendant was convicted only of possession of CDS. Nevertheless, the judge imposed the maximum term for a third-degree offense and the maximum period of parole ineligibility. Defendant argues that the judge sentenced him for the conduct of which he was acquitted, rather than for the sole charge of which he was convicted. Indeed, and ironically, the only mitigating factor found by the judge, defendant's "voluntary and excessive intoxication," relates to the assault/resisting arrest charges, not to the possession of CDS.
Nevertheless, the judge provided a detailed written Statement of Reasons for the sentence imposed in which he justified his findings that aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1a(3),(6),(9), "clearly, convincingly and substantially outweigh the single, weak Mitigating factor," thereby providing a basis for imposition of a maximum term and a maximum period of parole ineligibility. See N.J.S.A. 2C: 43-6b and State v. Natale, 184 N.J. 458, 487 (2005). Our scope of review of sentencing determinations is quite limited. Id. at 488-89. Our review is not based on whether we would have imposed the same sentence, id. at 489. Here, while the sentence at first blush might seem excessive, the judge adequately explained his rationale, which was supported by the record.
Defendant's prior record and the amount of CDS involved were significant and appropriate considerations. Despite some misgivings, we are constrained to affirm the sentence. However, we take this opportunity to again remind trial judges that "[p]eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace." State v. Kruse, 105 N.J. 354, 359 (1987) (quoting State v. Martelli, 201 N.J. Super. 378, 382-83 (App. Div. 1985)).
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