May 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, 05-11-2393.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2008
Before Judges Coburn and Fuentes.
A Monmouth County Grand Jury charged defendant with possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); possession of heroin within a thousand feet of a school with intent to distribute, N.J.S.A. 2C:35-7 (count three); possession of heroin within 500 feet of a public housing facility with an intent to distribute, N.J.S.A. 2C:35-7.1 (count four); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five); possession of cocaine with intent to distribute, N.J.S.A. 2c:35-5b(3) (count six); possession of cocaine within a thousand feet of a school with intent to distribute, N.J.S.A. 2C:35-7 (count seven); and possession of cocaine within 500 feet of a public housing facility with intent to distribute, N.J.S.A. 2C:35-7.1 (count eight).
Before trial the prosecutor dismissed counts four and eight, and defendant was found guilty on the remaining counts.
Defendant was sentenced in the aggregate to a five-year term of imprisonment with three years of parole ineligibility. Defendant appeals and we affirm.
On July 23, 2005, a team of officers, executing a search warrant, entered defendant's home. Defendant responded to the entry by getting up from a seat at the table, and trying to leave the kitchen, he made a throwing motion with his hand and something fell on the floor in the closet. Defendant stopped, raised his hands over his head, and was handcuffed. Sergeant Jason Roebeck observed those events.
Roebeck left the kitchen to secure other parts of the house, including the upstairs, then returned to the kitchen. Another officer, Todd Coleman, entered the kitchen. Roebeck told Coleman what he had seen in the kitchen, checked the closet for whatever had fallen on the ground, and observed small plastic baggies containing what looked like crack-cocaine, and white residue.
At this time, there were a number of other people in the house. The officers brought them into the living room.
Coleman read defendant and the others their Miranda rights, generally, and not to anyone one person in particular. Defendant then said that all the drugs were his and did not belong to anyone else in the house.
A jar was found on the table where defendant had been seated when the officers entered the house; inside the jar was one tile containing twenty-one individual decks of heroin. There were also twenty decks of heroine wrapped in two bundles of ten decks, each stamped in red letters "heroin addict". Coleman collected three ziplock bags containing a white powder that was later found to be cocaine, also at the table where defendant was seated. Coleman also took a black cellular phone, a clear plastic bag with a white powder cutting agent, a digital scale, a baggie with the "Apple" logo containing fifty two smaller ziplock baggies, a Radio Shack digital scanner, and a piece of paper defining police "10-codes". Coleman also recovered thirty-one small ziplock bags of crack cocaine from the closet. He also collected loose cocaine off the floor of the closet, and placed it into a plastic bag.
Another officer searched defendant and found $1,301 in cash on his person, and an additional $57.71 was seized from the table.
At trial, some of the other people who were in the house testified for defendant. They said that before the police arrived at the house defendant was in the bathroom, having felt sick that day. One of them, Lawrence Thomas, Jr., testified that the items and controlled substances on the kitchen table were his. These included the police scanner and digital scale, which he used to weigh drugs and make larger quantities into smaller ones; further, he asked to speak to an officer to tell him that the drugs were his. Other defense witnesses confirmed the testimony. Subsequent to the incident, Roebuck wrote a report on the incident which did not include defendant's statement that the drugs were his; further, Roebuck denied threatening to arrest everyone and claimed that defendant simply blurted out the incriminating statement.
In support of his appeal, defendant offers the following arguments:
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL (NOT RAISED BELOW).
THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT.
THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE WITNESSES WOULD BE ADMISSIBLE IF THEY TESTIFIED.
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). Nevertheless, we add the following comments.
Since defendant did not move for a new trial on the ground that the verdict was against the weight of the evidence, his claim for that relief is not cognizable on appeal. R. 2:10-1. In any case, as is evident from our statement of facts, the claim has no merit whatsoever.
The jury specifically found that defendant was guilty as a principle on each offense. Consequently, defendant's criticisms of the accomplice charge are moot. Moreover, given the testimony of defendant's son, who claimed that the drugs were his, and defendant's conduct after the police arrived, the accomplice charge was quite appropriate since there was a rational basis for so charging. State v. Hakim, 205 N.J. Super. 385, 388-89 (App. Div. 1985).
Prior convictions of a witness are generally admissible for impeachment purposes at trial, subject to the trial court's discretion to exclude them for remoteness. State v. Sands, 76 N.J. 127, 144 (1978). The trial court permitted evidence of prior convictions by defendant's son, Lawrence Thomas, Jr., and Teri Laws, who was also in the house when the arrest occurred. The most recent convictions were no older than ten years, and we affirm the admission of the convictions substantially for the reasons stated by the trial judge.
Defendant's claim that his sentence was unduly excessive is entirely without merit. The trial judge correctly considered and applied the statutory factors and case law in reaching his conclusion that the maximum term of five years imprisonment with three years of parole ineligibility was appropriate for this defendant whose record included eleven prior convictions.
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