Opinion
DOCKET NO. A-2831-12T1
07-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUCIUS THOMAS, a/k/a POODO LUCIOUS THOMAS, LUCIAS THOMAS and LUCUS THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-12-2190.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
A Grand Jury indicted defendant Lucius Thomas charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a) (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count four); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count five); third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count seven); second-degree possession of cocaine with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count eight); second-degree possession of heroin with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count nine); and fourth-degree possession of narcotic paraphernalia, N.J.S.A. 2C:36-3 (count ten).
A jury acquitted defendant of all drug charges and found defendant guilty of the lesser-included offense of fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). The court imposed a sentence of eighteen months imprisonment.
At trial, the State presented four witnesses. Defendant did not present any witnesses and did not testify. According to the State's proofs, on August 18, 2011, James Thomas went to the Jersey City Police Department to complain about defendant, his nephew, who lived with him. He told the police they had a fight in the apartment that day, and he wanted his nephew to return his phone and keys and get out of the apartment. He further told police he believed there were drugs in the apartment, and during the fight, defendant threatened that "if there was something wrong with his coke, that there would be problems" between him and defendant.
At 7:30 p.m. that evening, Jersey City Police Officers Melissa Sanchez and her partner Jermaine Truesdale were dispatched to Thomas's apartment. The apartment is on the first floor of a four-story, multi-family dwelling. Sanchez testified when they arrived, Thomas was very upset and informed them that he suspected the presence of drugs in the apartment. Thomas signed a consent to search form allowing police to search his residence. Thomas explained only he and defendant lived in the apartment.
He directed Officer Sanchez to a closet where both he and defendant kept their belongings. Officer Sanchez searched a black jacket and discovered two black bags in a pocket. One bag contained seven glass vials of cocaine. The other bag contained white rice, six bundles of heroin, fifty-four red plastic baggies used for packaging narcotics, and drug paraphernalia. The officers also found a wallet in the pocket containing defendant's New Jersey driver's license, and other identification with defendant's picture. Once the drugs were found, the officers notified their superiors, who authorized the Bureau of Criminal Investigation (BCI) to respond to photograph the drugs.
While waiting for BCI to arrive, the officers stood at the front entrance to the building. Soon defendant returned to the apartment building on his bicycle. As he carried his bicycle into the building, the officers engaged defendant in conversation. Defendant told them his name and stated that he lived in the building. The officers asked him to come inside so they could speak with him, but they did not tell him why. As Officer Truesdale brought out his handcuffs and reached out to grab defendant, defendant threw down his bicycle and turned to run from the building. Officer Truesdale grabbed defendant's sweater, but he slipped out of it and turned to run. Officer Truesdale told defendant to stop, but he fled. The officers gave chase, broadcasting defendant's direction of flight. A separate Jersey City Police Unit arrested defendant on Grant Avenue.
While being processed after the arrest, defendant advised police he had outstanding traffic warrants.
Defendant appeals the judgment of conviction presenting only the following argument for our consideration:
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT KNEW HE WAS UNDER ARREST HIS CONVICTION FOR RESISTING ARREST BY FLIGHT MUST BE REVERSED. (Not Raised Below)
We infer from defendant's brief that the essence of his argument is that the verdict is against the weight of the evidence. Assuming that is so, we note defendant failed to move for a new trial before the trial court on this charge. Generally, we will not consider an argument that a jury verdict is against the weight of the evidence unless a motion for a new trial was made before the trial court. State v. Scherzer, 301 N.J. Super. 363, 407 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997). Rule 2:10-1 provides in pertinent part: "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for new trial on that ground was made in the trial court."
At the close of the State's case, defendant moved for judgment of acquittal only as to the CDS charges. R. 3:18-1.
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We adhere to this rule unless, in the interest of justice, we choose to do otherwise. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 2:10-1 (2013) (citing State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993)). The interest of justice compels our intervention when we are convinced, under the plain error standard, that there has been an error or omission at the trial level that was "clearly capable of producing an unjust result." See R. 2:10-2; see also Pressler & Verniero, supra, comment 3 on R. 2:10-1 (2013) (citing State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) for the proposition that Rule 2:10-1 is subject to the plain error analysis). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues that the State failed to prove that he knew or had reason to know that he was under arrest. Consequently, he argues, he did not purposely run to resist arrest. This contention is essentially a challenge to the jury's credibility determinations.
The jury heard the testimony of the witnesses and of counsels' closing arguments, and considered the physical evidence. Moreover, the judge instructed the jury on the law and their duties as fact finders without objection. We presume the jury understood and followed the court's instructions. See State v. Winder, 200 N.J. 231, 256 (2009). In their deliberations, the jury was free to reject defendant's argument and to accept the testimony of the State's witnesses in this regard. Its credibility determination on this issue is entitled to our deference. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969); see also State v. Feaster, 156 N.J. 1, 81 (1998); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Conway, 193 N.J. Super. 133, 151 (App. Div.), certif. denied, 97 N.J. 650 (1984). It is clear the jury accepted defendant's arguments with respect to the drug offenses, as he was acquitted of the more serious third-degree drug charges. The jury, however, evidently credited the testimony of the officers and convicted defendant of fourth-degree resisting arrest by flight, as a lesser-included offense of third-degree resisting arrest. We discern no basis, in the interest of justice, to disturb that result.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION