STATE OF NEW JERSEY v. LUCMAN DAZILME

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5681-04T45681-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUCMAN DAZILME,

Defendant-Appellant.

 

Submitted July 26, 2006 - Decided August 18, 2006

Before Judge Wecker and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0417-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Lucman Dazilme appeals from his conviction and sentence, following a jury trial, for third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1). More specifically, he challenges the judge's denial of his motion to suppress evidence, he argues that the State failed to prove the chain of custody of the bag of cocaine offered into evidence at trial, and he contends that his sentence to a term of incarceration in excess of the formerly-recognized presumptive term violates his constitutional rights. We reject defendant's arguments concerning the motion to suppress and the chain of custody and therefore we affirm his conviction, but we find merit in his argument relating to the term of incarceration and we remand for resentencing.

Defendant's first argument on appeal challenges the judge's denial of his motion to suppress as follows:

POINT ONE

BECAUSE THE POLICE OFFICER DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT, THE SEIZURE OF EVIDENCE PURSUANT TO THAT ARREST WAS ILLEGAL; HENCE, THE MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED.

The following facts are relevant to this issue. On September 14, 2002, Elizabeth police officer James DiOrio was driving in an unmarked police car with his partner, Sergeant Robert Keily. As they were driving on Anna Street, DiOrio saw defendant, whom he recognized, sitting on the front porch of an apartment building. DiOrio believed, having verified the information when he saw defendant in Jefferson Park a week earlier, that there was a restraining order, issued pursuant to the Drug Offender Restraining Order Act ("DORA"), N.J.S.A. 2C:35-5.7, that prohibited defendant from being within 200 feet of that park. He also believed that the porch where defendant was sitting was within 200 feet of the park, which he testified was "directly adjacent . . . [a]cross the street" from the apartment building.

DiOrio drove the unmarked car and parked it where it was out of sight of the porch on which defendant was sitting. He and his partner, both wearing plain clothes and police badges, walked back toward the building where defendant was seated. According to DiOrio, when they were about fifteen feet away from defendant, he looked up and "looked directly at" DiOrio. Defendant immediately stood and began walking toward the front door of the apartment. DiOrio ran to defendant, reached out and grabbed his coat to stop him. According to DiOrio, defendant then dropped a small yellow bag from his hand. DiOrio pointed out the bag to his partner who picked it up. Subsequent tests revealed that it contained cocaine.

In addressing the issues raised during the hearing on the motion to suppress, the judge first noted that a valid DORA order was in existence at the time of defendant's arrest. He found that DiOrio knew defendant, knew that there had been a DORA order entered, knew that it was in effect one week earlier when he saw defendant in the park and verified it, and knew that the porch was across the street from the park and within the order's prohibited area. The judge concluded that these facts gave the officer probable cause to approach defendant and to arrest him for violating the DORA. He denied the suppression motion based on these findings and conclusions.

On appeal, defendant argues that because the officer did not ascertain that the order was still in effect prior to approaching defendant, he lacked probable cause to arrest him. In addition, he asserts that there was insufficient proof that the apartment is within 200 feet of the park for purposes of supporting the finding of probable cause. We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm and add only the following observations.

The judge's factual findings, which are based on substantial credible evidence in the record, are entitled to our deference. See State v. Locurto, 157 N.J. 463, 472 (1999); State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993). The facts known to the officer, including defendant's identity, the existence of a DORA order, the validity of which he had verified a week earlier, the location of the park and its distance from the porch where defendant was sitting are sufficient to constitute "a well-grounded suspicion that a crime has been or is being committed." State v. Moore, 181 N.J. 40, 45 (2004)(citation omitted); State v. Pineiro, 181 N.J. 13, 21 (2004); State v. Wilson, 178 N.J. 7, 13 (2003); State v. Sullivan, 169 N.J. 204, 210-11 (2001). We reject defendant's suggestion that the officer was required to re-verify the continued existence of the DORA order or to specifically measure the distance between the park identified in that order and the porch of the apartment building across the street from the park where defendant was sitting.

Defendant's second argument on appeal, not raised during the trial, relates to the admissibility of the yellow bag that the officer testified defendant had dropped and was recovered at the scene. Defendant's specific argument on appeal is as follows:

POINT TWO

BECAUSE THE STATE FAILED TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED COCAINE RECOVERED BY THE POLICE, ITS ERRONEOUS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND A REVERSAL OF HIS CONVICTION IS REQUIRED. U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. ART. 1, 1 AND 12. (Not Raised Below).

The following facts are relevant to our consideration of this issue. At trial, DiOrio identified the yellow bag, testifying that its appearance was altered only by blue tape placed on it by the laboratory that conducted the analysis of the contents. He further testified that he had placed the yellow bag into an evidence bag following defendant's arrest, identifying the bag by case number, date and by the names of the officers involved in the arrest. He also testified that the evidence bag containing the yellow bag was locked thereafter in the property locker at police headquarters. Sergeant Keily's testimony at trial was consistent with DiOrio's recollection of the relevant events.

On appeal, defendant asserts that in the absence of proof about who physically put the bag into the evidence locker, who transported it to the laboratory for analysis, who brought it to the courtroom, and who had access to the locker and the laboratory facilities, the bag, as well as the laboratory evidence identifying its contents, was inadmissible. We analyze this argument, as we must, in accordance with the plain error rule, in light of defendant's failure to raise it during his trial. See R. 2:10-2. Applying that standard, our analysis of the facts and the applicable decisions addressing chain of custody, compels us to conclude that this argument is without merit. See R. 2:11-3(e)(2).

Decisions concerning whether the State has sufficiently demonstrated the chain of custody fall within the trial court's discretion and will not be overturned except for a clear mistake in the judge's exercise of that discretion. State v. Di Carlo, 67 N.J. 321, 329 (1975); State v. Binns, 222 N.J. Super. 583, 594 (App. Div.), certif. denied, 111 N.J. 624 (1988); State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). The standard that governs the trial judge's decision about admissibility is whether the judge "finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." State v. Brunson, 132 N.J. 377, 393-94 (1993)(quoting Brown, supra, 99 N.J. Super. at 28); In the Matter of Lalama, 343 N.J. Super. 560, 565-66 (App. Div. 2001).

Chain of custody must be established to insure that the item is connected to the case, and thus constitutes relevant evidence, and in order to avoid any inference that there has been a substitution or tampering. Brown, supra, 99 N.J. Super. at 27. It is not necessary for the party introducing evidence "to negate every possibility of substitution or change in condition," ibid., particularly where the custodian of the evidence has been an agency of the State. Brunson, supra, 132 N.J. at 393; Binns, supra, 222 N.J. Super. at 593. As the Supreme Court has noted, "[f]urthermore, a defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." State v. Morton, 155 N.J. 383, 446 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In light of these clear precedents, we find no basis on which to afford defendant relief. Rather, the arguments that he raises on appeal fall within the realm of attempts to require the State "to negate every conceivable possibility" that there was a change in or a substitution of the evidence.

Finally, defendant challenges the sentence that was imposed upon him. He contends as follows:

POINT THREE

BECAUSE DEFENDANT'S SENTENCE WAS ABOVE THE PRESUMPTIVE SENTENCE, THE MATTER MUST BE REMANDED TO PERMIT RE-SENTENCING PURSUANT TO STATE v. NATALE, 184 N.J. 458 (2005).

We note that defendant was found guilty of a third-degree offense. The sentencing judge first found that three aggravating factors, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), the extent of his prior criminal history, N.J.S.A. 2C:44-1a(6), and the need to deter, N.J.S.A. 2C:44-1a(9), were present and that there were no mitigating factors. He then weighed the aggravating and mitigating factors and concluded that a term of five years, with a sixteen-month parole disqualifier, was appropriate together with applicable fines and fees. He also concluded that the sentence should be served consecutively to a previously imposed sentence defendant was then serving.

On appeal, defendant argues that by imposing a sentence in excess of the formerly recognized presumptive term and in relying on factors other than the fact of his prior convictions, the judge violated his constitutional rights, entitling him to a remand. See State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005). The State argues that a sentencing court's reliance on the three aggravating factors utilized in sentencing this defendant is sufficient to withstand constitutional muster and that defendant is not entitled to a remand. See Abdullah, supra, 184 N.J. at 506 n.2.

In its most recent decisions addressing the question of sentencing, the Court has clarified that, even where a sentencing judge, prior to Natale, supra, has relied only on aggravating factors 3, 6 and 9, in imposing a sentence in excess of the formerly recognized presumptive term, a defendant is entitled to a remand for reconsideration of the sentence notwithstanding the language of the Abdullah footnote. See State v. Thomas, A-43-05 (Aug. 2, 2006)(slip op. at 23). Our analysis of this most recent guidance compels us to conclude, therefore, that defendant is entitled to a remand for reconsideration of his sentence.

We note, however, that although defendant's sentence also included a period of parole disqualification and was imposed as a consecutive sentence, the Court has not found that either violates a defendant's constitutional rights and neither aspect of this sentence, therefore, would support a remand. See Abdullah, supra, 184 N.J. at 508-12. We further note that on remand, the court may, consistent with Abdullah, impose a period of parole disqualification and may impose a consecutive sentence if otherwise permitted. Id. at 512-14.

We therefore affirm defendant's conviction but remand solely for reconsideration of the sentence imposed on him in light of the dictates of Natale, Abdullah and Thomas.

 

(continued)

(continued)

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A-5681-04T4

 

August 18, 2006