SENTENCE UPHELD IN PROFILING CASE

Defendant Has Right To Top State Court Review

Calvin and Ricky Lee did not submit quietly when state troopers
stopped their pickup truck in 1995.

According to court records, Ricky, the driver, fled on foot while
Calvin struggled with a state trooper -- at one point grabbing for
the trooper's gun before fleeing into darkened woods where he was
captured after a search involving dogs and a helicopter. State
troopers found 11 ounces of cocaine and 18 ounces of marijuana in the truck.

Yesterday, in a 2-1 decision, a state appeals court upheld a ruling
that said it made no difference whether the Lees, who are
African-American, were the victims of "racial profiling," the illegal
practice of stopping drivers because of their skin color.

The majority said Calvin's actions -- resisting arrest and assaulting
a trooper -- erased any illegality that might have tainted the
initial stop. It upheld his 55-year prison sentence for possessing
illegal drugs with intent to distribute.

The dissenting judge, Jose Fuentes, said racial profiling is such "a
profound and flagrant attack on justice itself" that -- if it
occurred -- it cannot be overlooked.

Fuentes' dissent gives Calvin Lee an automatic right to have the New
Jersey Supreme Court review his case. Susan Brody, his assistant
deputy public defender, said, "We're going to appeal."

It will be the first time the high court considers whether racial
profiling can be ignored because of the actions of the defendant.

According to court records, State Troopers Steven Parisi and Lisa
Mayer were patrolling Route 80 in West Paterson in their marked car
shortly after midnight on May 22, 1995. Parisi wrote in his report
the truck was doing 38 mph in a 55-mph zone and darting across lanes.
Thinking the driver was drunk or fatigued, he later testified, Parisi
activated the overhead lights but the truck drove another mile before
pulling over.

When Ricky Lee could not produce registration papers or say who owned
the truck, Parisi began to suspect it was stolen and ordered the Lees
to place their hands on the dashboard, according to court records.
Parisi called for backup, the two brothers fled, and the struggle
with Calvin Lee ensued.

Parisi discovered the illegal drugs while searching the truck for
weapons, according to court records. It was later determined the
truck belonged to the Lees's aunt.

The brothers were tried separately in 1996, convicted and sentenced
to lengthy prison terms. Three years later, in April 1999,
then-Attorney General Peter Verniero admitted that racial profiling
by State Police was "real, not imagined" and announced a plan to eradicate it.

That admission touched off attempts by many inmates to overturn their
convictions. Calvin Lee's lawyers filed a motion in 2001 to obtain
Parisi's arrest records, hoping to show he had a history of racial
profiling. Like all such motions, it was assigned to Judge Walter
Barisonek in Union County, who denied it.

Barisonek ruled the Lee brothers knew they were under arrest and did
not "have a right to just walk away."

"Whether or not the arrest is illegal or unlawful is of no
consequence," Barisonek said. "The acts of the defendants outweigh in
my mind any discriminatory act that may have started the incident."

Upholding that ruling yesterday, Appellate Division Judge Howard
Kestin wrote, "No good public purpose is served by ignoring or
rewarding such anti-social acts" as resisting arrest. He was joined
by Appellate Division Judge Edwin Alley.

Dissenting, Fuentes wrote: "It cannot be over-emphasized that racial
profiling connotes a segregationist mentality, harkening to a time
when this type of malevolent stereotyping was not only considered
acceptable, but legitimate. Short of actual physical violence, it's
difficult for me to imagine a more serious and flagrant abuse of the
state's police power."