STATE OF NEW JERSEY v. WADIM SAKIEWICZ

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WADIM SAKIEWICZ,

Defendant-Appellant.

______________________________________

October 4, 2016

 

Submitted May 9, 2016 Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 31-11-13.

Dolan & Dolan, attorneys for appellant (David H. Dumbroff, on the brief).

Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUTER, J.S.C. (temporarily assigned).

Defendant Wadim Sakiewicz appeals his convictions for defiant trespass, disorderly conduct and resisting arrest following a de novo review of the municipal court record in the Law Division. We affirm.

I.

On July 4, 2011, defendant was observed rollerblading "aggressively" along the 400-yard boardwalk of the Lake Mohawk Country Club in Sparta where he was a member. The boardwalk was crowded with several hundred people for the holiday. A sign posted warned boardwalk users that roller skates, dogs and bicycles were prohibited.

The Club's director of food and beverage, who saw defendant rollerblading, asked defendant to stop because he was "endangering people around him." Defendant refused and "took off like a flash." When two Sparta Township police officers on routine patrol at the boardwalk were alerted to, and then observed, defendant rollerblading through the dining area where people were having dinner, the officers asked defendant to leave the boardwalk or stop rollerblading. Defendant refused because he was a Club member. He became "belligerent" with the officers, who then arrested defendant for defiant trespass, N.J.S.A. 2C:18-3(b)(2), and disorderly conduct, N.J.S.A 2C:33-2(a)(2). He resisted and subsequently was charged with resisting arrest, N.J.S.A. 2C:29-2(a)(1).

The municipal court case was not tried until October 1, 2013, due in part to defendant seeking legal representation. On the scheduled trial date, defendant requested the appointment of counsel. He complained about not being "fit" for trial, referencing both a divorce action with his wife and a tort action, but did not provide any information about a medical condition. When it became clear the municipal case would proceed, defendant refused to stay or participate in the case, saying he had an appointment with a mental health professional. The case was tried without defendant present, whereupon he was convicted on all charges. On November 12, 2013, with defendant present in court, he was sentenced to a total of sixty days of incarceration.

Defendant's appeal was heard de novo in the Law Division on April 25, 2014. Defendant represented himself even though two prior adjournments had been granted to allow defendant to order transcripts and to obtain counsel. The judge declined a further adjournment. Finding no irregularity in the procedures, the judge concluded that all the charges against defendant were proven beyond a reasonable doubt. The judge noted defendant probably had "mental health challenges secondary to depression," that he was "manipulative," "disingenuous," and that his "thinking was highly delusional" because he had a "martyr complex of some type." In sentencing defendant, the court found no mitigating factors but did find aggravating factors, including the need to deter defendant's conduct and the risk of re-offending. The judge reduced the length of defendant's sentence to forty days.

On appeal, defendant raises the following issues

POINT I. THE COURTS FAILED TO APPOINT AN ATTORNEY FOR DEFENDANT WHO DISPLAYED MENTAL HEALTH ISSUES WHICH WOULD HAVE IMPEDED HIS ABILITY TO UNDERSTAND AND APPRECIATE THE JUDICIAL PROCESS.

POINT II. THE MUNICIPAL COURT OF BYRAM ABUSED ITS DISCRETION.

POINT III. THE STATE'S UNREASONABLE SEIZURE OF THE DEFENDANT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

II.

After reviewing the transcripts and the governing law, we conclude defendant has provided us no reason to disturb the factual findings or legal conclusions therein.

We comment briefly on the standard that informs our analysis. On appeal, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2), the Law Division makes independent findings of fact and conclusions of law de novo, based on the record from the municipal court. See State v. States, 44 N.J. 285, 293 (1965). On appeal, we determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011).

The judge properly concluded there was proof beyond a reasonable doubt that defendant committed the offenses. There was ample evidence defendant committed defiant trespass, N.J.S.A. 2C:18-3(b)(2),1 because he was given notice he was not permitted on the boardwalk with rollerblades and persisted with knowledge it was prohibited. His purposeful conduct in a crowded area recklessly created a hazard which satisfied the offense of disorderly conduct, N.J.S.A. 2C:33-2(a)(2).2 The record supports that defendant resisted arrest. See N.J.S.A. 2C:29-2(a)(1).3

We reject defendant's argument that the case should have been adjourned so that counsel could be appointed. The decision whether to adjourn a case for a party to obtain counsel is left to the sound discretion of the court. State v. Hayes, 205 N.J. 522, 537 (2011) (holding in a criminal case that denial of a motion for adjournment is not subject to reversal "unless it appears from the record that the defendant suffered manifest wrong or injury").

There was no manifest wrong or injury here. The record amply supported the court's finding that "there was a desire by the defendant to delay and obstruct the process." Two years was adequate time to find counsel. In fact, within one month of sentencing, defendant obtained counsel who filed an application on his behalf requesting a stay.

There was no error in the trial court's decision not to order a mental health examination or appoint counsel. "[I]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Indiana v. Edwards, 554 U.S. 164, 170, 128 S. Ct. 2379, 2383, 171 L. Ed. 2d 345, 352 (2008) (internal citations omitted). However, the defendant must be mentally ill and not "merely difficult to handle or disruptive." State v. McNeil, 405 N.J. Super. 39, 53 (App. Div. 2009). "Evidence that a defendant may be suffering from mental illness does not necessarily raise a bona fide doubt as to his competence to stand trial." State v. Cecil, 260 N.J. Super. 475, 485 (App. Div. 1992) (internal citations omitted). Rather the test of competence to stand trial is "whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960). See N.J.S.A. 2C:4-4(b) (codifies test for competency).

No bona fide doubt was raised about defendant's mental competence or his lack of need for appointed counsel. He provided no medical information about a mental health condition. He understood the proceedings because at the trial de novo, he expressed that he knew the judge was expecting him to say he regretted his actions. He also asked the court that he be sentenced to "time served." He demonstrated competence to defend himself. At the trial de novo, defendant knew he wanted to call three witnesses, was prepared to say that he had not been instructed to take off his roller blades on the day in question, and contended the witness for the Club had not been "designate[d]" to testify for the Club. Although there was some discussion by the judge of depression, delusions and a "martyr complex," the judge did not make findings of mental illness, nor was there any support for such in this record.

We reject defendant's remaining arguments as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


1 "A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by . . . [p]osting in a manner prescribed by law or reasonably likely to come to the attention of intruders." N.J.S.A. 2C:18-3(b)(2).

2 "A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." N.J.S.A. 2C:33-2(a)(2).

3 "[A] person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1).