NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4795-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABDUL S. AZIZ,
Defendant-Appellant. _________________________
Submitted November 10, 2020 – Decided November 24, 2020
Before Judges Yannotti, Haas, and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-12-1201.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A Union County grand jury charged defendant Abdul Aziz with first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count three).
Prior to trial, defendant filed a number of motions, including a request to
suppress statements he made to the police during an interview. After the
Supreme Court granted defendant's motion for leave to appeal the Law
Division's February 24, 2014 decision denying defendant's suppression motion
and remanded the matter to this court, we rendered a decision suppressing
defendant's statement. State v. Aziz, No. A-0931-14 (App. Div. Apr. 1, 2016)
(slip op. at 1, 12).
Following a multi-day trial, the jury convicted defendant of all three
counts of the indictment. The judge sentenced defendant to fifty years in prison
on count one, subject to an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and five years of
parole supervision upon his release. The judge sentenced defendant to
concurrent seven-year terms on counts two and three, subject to forty-two
A-4795-17T3 2 months of parole ineligibility on each count. The judge merged count three into
count one. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY THE MORE THAN SIX-YEAR DELAY BETWEEN HIS ARREST AND TRIAL SUCH THAT THE INDICTMENT MUST BE DISMISSED. (Not Raised Below).
POINT II
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ABOUT THE SPECIFIC PURPOSE FOR WHICH IT COULD CONSIDER DEFENDANT'S HOSTILE TEXT MESSAGES. (Not Raised Below).
POINT III
THE PROSECUTOR'S COMMENTS DURING HER OPENING AND CLOSING DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE SHE RELIED ON FACTS NOT IN EVIDENCE AND INFLAMED THE JURY. U.S. Const. amend. XIV; N.J. Const. art. 1, ¶[¶]1, 10 (Not Raised Below).
POINT IV
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF THE GARAGE UNDER THE PLAIN VIEW EXCEPTION BECAUSE DISCOVERY OF
A-4795-17T3 3 DEFENDANT'S CAR WAS NOT "INADVERTENT." SEE STATE V. BRUZZESE, 94 N.J. 210, 236-[]38 (1983).
POINT V
THIS COURT SHOULD REMAND FOR RESENTENCING BECAUSE THE COURT ERRED IN BASING AGGRAVATING FACTORS ON A PRIOR CRIME THAT WAS DISMISSED AND ON AN UNSUPPORTED FINDING THAT DEFENDANT LACKED REMORSE.
POINT VI
THE JUDGMENT OF CONVICTION SHOULD BE CORRECTED TO REMOVE THE FINES ON THE MERGED COUNT.
After reviewing the record in light of the contentions advanced on appeal,
we affirm defendant's convictions and sentence, but remand to correct the
Judgment of Conviction to remove the fines the judge imposed on count three.
I.
On July 11, 2011, Ramona Jackson was killed by a gunshot wound to the
head and hand. The State's medical examiner determined that the gun was fired
at close range.
At the time of her murder, Jackson was engaged to Sincere Johnson, who
lived across the street from her. However, she had previously dated defendant
and, when defendant moved back to the area earlier in the year, they rekindled
A-4795-17T3 4 that dating relationship. During the investigation that followed Jackson's
murder, the State was able to recover numerous text messages defendant had
sent to both Jackson and Johnson expressing his anger and jealousy over the
couple's ongoing relationship.
In the late afternoon of July 11, 2011, defendant and Jackson went to a
boathouse in Elizabeth, where they used the paddleboats together for about thirty
minutes. Surveillance footage from three nearby businesses captured a dark
colored Ford Explorer, which was consistent with the car defendant owned,
leaving the area, heading along a street toward a dead-end, and then disappearing
down an access road at 7:04 p.m. The footage showed an individual in the front
passenger seat of the car as it entered the access road. When the car was next
seen about three and a half minutes later returning from the access road, the
passenger was no longer in the front passenger seat.
At approximately 8:30 p.m., defendant entered the Elizabeth police station
and told the officer at the front desk that there was a warrant for his arrest. After
the officer ran a check of defendant's name, he told defendant there were no
warrants for his arrest and defendant left the station.
A-4795-17T3 5 About five or ten minutes later, defendant returned to the station and again
told the officer there was a warrant for his arrest. When the officer repeated
there were no warrants, defendant left the station.
Jackson's body was found at 7:30 a.m. the next morning on the access road
where the Ford Explorer had been seen on the security footage. The body was
near a manhole cover.
After identifying defendant as a suspect, the police conducted surveillance
of his apartment, but defendant never returned there. On July 15, 2011, the
police obtained a search warrant for defendant's home and found an empty safe
underneath defendant's bed.
The police learned that defendant rented one-half of a two-car garage at
his apartment complex, which he shared with another tenant. The garage had
separate entrances, but there was no barrier between the two spaces. The owner
of the other space gave the police permission to enter her half of the garage and,
when they did so, the officers were able to see defendant's Ford Explorer in the
adjoining parking spot. The police then obtained a warrant to enter and search
defendant's portion of the garage and his car. The police found a fresh scuff
mark on the right passenger tire, which was consistent with the car having struck
the manhole cover near Jackson's body.
A-4795-17T3 6 On July 16, 2011, defendant again returned to the police station and stated
he believed the police were looking for him. By this time, a warrant had been
issued for defendant's arrest, and the police took him into custody. Defendant
was wearing a shirt that had a similar design to the shirt seen on the boathouse
surveillance footage. The police also found that defendant had worked from
February 2011 to May 2011 at a company located a short distance from where
Jackson's body was found.
II.
In Point I, defendant argues for the first time on appeal that the six -year
gap between the date of his arrest and his conviction violated his right to a
speedy trial. We disagree.
The Sixth Amendment to the United States Constitution and Article I of
the New Jersey Constitution guarantee criminal defendants the right to a speedy
trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶¶ 1, 10. This right attaches at
the time of defendant’s arrest. State v. Tsetsekas, 411 N.J. Super. 1, 8 (App.
Div. 2009).
In assessing a defendant's claim of a speedy trial violation, the court must
balance the following factors: 1) the length of the delay; 2) the reasons for the
delay; 3) whether and how defendant asserted his speedy-trial right; and 4) the
A-4795-17T3 7 prejudice to defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530
(1971); State v. Townsend, 186 N.J. 473, 487 (2006). These factors are assessed
and balanced in light of competing interests: on one side, the "societal right to
have the accused tried and punished" and on the other, a defendant's right to be
prosecuted "fairly and not oppressively." State v. Dunns, 266 N.J. Super. 349,
380 (App. Div. 1993) (quoting State v. Farmer, 48 N.J. 145, 175 (1966)). We
weigh the State's deliberate delay more heavily in favor of dismissal of the
prosecution than delay attributable to the State's negligence or the court
procedures and calendars. Barker, 407 U.S. at 531. Conversely, delay caused
by a defendant's failure to invoke his right to a speedy trial, and the absence of
actual prejudice and evidence of an advantage or benefit gained by the delay
weigh in favor of the denial of the defendant's claim. State v. Misurella, 421
N.J. Super. 538, 545-46 (App. Div. 2011).
After applying the Barker factors, we are satisfied that defendant's right
to a speedy trial was not violated. Defendant was arrested on July 16, 2011, and
his trial did not begin until December 5, 2017, a gap of over six years. This
factor therefore weighs in favor of defendant.
However, under the second Barker factor, the record demonstrates that
most of this delay was attributable to defendant's motion practice, which
A-4795-17T3 8 included a lengthy interlocutory appeal to this court and the Supreme Court
successfully challenging the denial of his motion to suppress his statements to
the police. In addition, defendant filed numerous other motions during the six -
year period, including eight different motions on July 10, 2017. Once the trial
court resolved these final applications, defendant's trial commenced. Defendant
also changed his attorney several times, which added to the delay and allowed
him to file additional pro se motions.
Significantly, defendant never raised his right to a speedy trial before the
trial court and, therefore, the third Barker factor weighs heavily against him.
Turning to the fourth factor, defendant has also failed to present any specific
evidence that he was prejudiced by the delay.
In sum, we conclude there was no violation of defendant's right to a speedy
trial. This was a complex prosecution of a first-degree murder charge.
Defendant did not assert his right to a speedy trial at any time, and suffered no
detectable prejudice by the admittedly uncommon delay. Under these
circumstances, the delay by itself does not warrant reversal. Barker, 407 U.S.
at 477.
A-4795-17T3 9 III.
For the first time on appeal, defendant contends the trial judge erred by
failing to instruct the jury on the limited use of defendant's text messages to
Jackson and Johnson in which he expressed his anger and jealousy over their
relationship. Because the judge did not specifically inform the jury that it could
only consider the messages as proof of defendant's motive as permitted by
N.J.R.E. 404(b), defendant asserts that his convictions must be reversed. Again,
we disagree.
The judge granted the State's pre-trial motion to admit the text messages.
In his November 3, 2017 written decision, the judge explained that the messages
were admissible under N.J.R.E. 404(b) to prove defendant's motive. Defendant
does not challenge this ruling on appeal.
When the State introduced this evidence at trial, however, the judge did
not give the jury a limiting instruction that it could only consider the messages
as evidence of defendant's motive. The judge also did not give the jury a limiting
instruction on this subject in his final charge.
However, it is well established that if a trial court admits evidence of other
crimes or bad acts under N.J.R.E. 404(b), it "must provide a limiting instruction
that 'inform[s] the jury of the purposes for which it may, and for which it may
A-4795-17T3 10 not, consider the evidence of [the] defendant's uncharged misconduct, both when
the evidence is first presented and again as part of the final jury charge.'" State
v. Garrison, 228 N.J. 182, 200 (2017) (first alteration in original) (quoting State
v. Rose, 206 N.J. 141, 161 (2011)). Here, we agree that the judge's failure to
provide a limiting instruction after the evidence was presented and as part of the
final charge was a mistake.
However, the inquiry does not end there. We must next consider whether
this mistake constitutes plain error requiring the reversal of defendant's
convictions. When, as here, a defendant fails to object at trial, we review for
plain error and "disregard any alleged error 'unless it is of such a nature as to
have been clearly capable of producing an unjust result.'" State v. Funderburg,
225 N.J. 66, 79 (2016) (quoting R. 2:10-2). The error must have been "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. McGuire, 419 N.J. Super. 88, 106-
07 (App. Div. 2011) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)).
"In addition, any finding of plain error depends on an evaluation of the
overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289
(2006). "Convictions after a fair trial, based on strong evidence proving guilt
beyond a reasonable doubt, should not be reversed because of a technical or
A-4795-17T3 11 evidentiary error that cannot have truly prejudiced the defendant or affected the
end result." State v. W.B., 205 N.J. 588, 614 (2011).
Applying these standards, we are satisfied that the judge's mistake was
clearly incapable of producing an unjust result. The text messages contained
foul language and showed defendant was angry that Jackson was having a
relationship with another man. But, contrary to defendant's contention, the
messages did not indicate defendant was predisposed to commit a crime.
Moreover, the State presented substantial, if not overwhelming, evidence
that defendant killed the victim. The police obtained surveillance video of
defendant and the victim at the boathouse. Defendant's car was also captured
on surveillance footage entering an access road near where defendant used to
work with a passenger, and leaving a few minutes later without one. Defendant's
tire had a scrape consistent with having struck a manhole cover found near the
victim's body. Defendant twice tried to turn himself in to the police on the night
of the murder and finally did so the day after the police searched his apartment,
garage, and car.
Given this strong evidence of defendant's guilt, we conclude that any error
resulting from the judge's failure to give a limiting instruction was harmless
under the circumstances of this case.
A-4795-17T3 12 IV.
Defendant next argues for the first time on appeal that the prosecutor made
comments during her summation that were not based upon the trial evidence.
This argument lacks merit.
Defendant asserts that the prosecutor improperly read from a letter
defendant sent to Jackson that was not introduced in evidence. Defendant also
alleges that the record did not support the prosecutor's statements that defendant
knew he lost Jackson's phone at the murder scene, had time to hide the gun and
change clothes before going to the police station, and terrorized the victim "in
her final moments." In this regard, defendant argues that the prosecutor
"inflamed" the jurors by asking them whether they thought Jackson attempted
to shield herself with her hand when defendant shot her. Defendant also
complains that the prosecutor stated the trial was a search for the truth. Defense
counsel did not object to any of these remarks.
Prosecutorial misconduct is not a basis for reversal unless the conduct
"was so egregious that it deprived [the] defendant of a fair trial." State v.
DiFrisco, 137 N.J. 434, 474 (1994). Considerable leeway is afforded to
prosecutors in presenting their arguments at trial "as long as their comments are
reasonably related to the scope of the evidence presented." State v. Frost, 158
A-4795-17T3 13 N.J. 76, 82 (1999). Thus, "[i]t is not improper for the prosecution to suggest
that the defense's presentation was imbalanced and incomplete." State v.
Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014) (quoting State v.
Timmendequas, 161 N.J. 515, 593 (1999)). However, "'[a] prosecutor is not
permitted to cast unjustified aspersions' on defense counsel or the defense."
Frost, 158 N.J. at 86 (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App.
Div. 1991)).
To determine if the alleged misconduct was sufficiently egregious to
warrant reversal, the appellate court "must consider 'whether defense counsel
made a timely and proper objection, whether the remark was withdrawn
promptly, and whether the court ordered the remarks stricken from the record
and instructed the jury to disregard them.'" Patterson, 435 N.J. Super. at 508
(quoting State v. Wakefield, 190 N.J. 397, 438 (2007)). As a general rule, a
remark will not be considered prejudicial if no objection was made. State v.
R.B., 183 N.J. 308, 333 (2005) (quoting Frost, 158 N.J. at 83). "The failure to
object suggests that defense counsel did not believe the remarks were prejudicial
at the time they were made. The failure to object also deprives the court of an
opportunity to take curative action." Ibid. (quoting Frost, 158 N.J. at 84).
A-4795-17T3 14 Applying these standards, we are satisfied that none of the prosecutor's
comments deprived defendant of a fair trial. Contrary to defendant's assertion,
defendant's letter was read to the jury by Sergeant Anastasio Anastasatos.
Therefore, it was entirely proper for the prosecutor to refer to it in her
summation.
The prosecutor's remarks about defendant losing the victim's phone and
having time to hide the gun and change his clothes were fair comment on the
evidence presented and in no way denied defendant's right to a fair trial.
Similarly, because Jackson was shot from very close range in the hand and her
head, the prosecutor's comment that she may have been cowering and trying to
shield herself when she was shot was squarely based on the record evidence.
Finally, defense counsel made the following statement to the jury during
his summation: "Now, there's often couching of things with a search for the
truth, and the truth here is the State has failed to meet its burden." In responding
to this comment during her closing argument, the prosecutor stated, "[t]he
defendant wants you to believe that this is about a lack of proof or search for
doubt, and I submit to you that's not why we're here. This trial is about a search
for the truth." Given "the context in which they were given," the prosecutor's
remark "did no more than balance the scales." State v. Munoz, 340 N.J. Super.
A-4795-17T3 15 204, 216 (App. Div. 2001). In addition, immediately after making this comment,
the prosecutor emphasized that "every piece of evidence . . . will prove that this
defendant is guilty beyond a reasonable doubt – any reasonable doubt . . . . "
Therefore, this comment was also not capable of producing an unjust result.
Defendant next argues in Point IV that the trial judge erred by denying his
motion to suppress the results of the warrantless search of his garage because
the police did not "inadvertently" discover defendant's car in the garage and, as
a result, the search could not be justified under the plain view exception to the
warrant requirement. This argument also lacks merit.
As the trial judge found in his September 25, 2017 written decision
denying defendant's suppression motion, defendant rented one-half of a two-car
garage. "Each bay of the garage had its own overhead door. There was no
interior wall dividing the garage space. Accordingly, if one were to access one
of the bays, the contents of the other would be plainly visible."
Before entering the garage, the police obtained the written consent of the
tenant who owned the other half of the structure. Based upon this valid consent,
the police were not required to obtain a warrant before entering the tenant's side
of the garage. State v. Lamb , 218 N.J. 300, 315 (2014) (making clear that both
A-4795-17T3 16 "[f]ederal and New Jersey courts recognize the consent to search exception to
the warrant requirement") (citations omitted).
As the judge stated in denying defendant's motion to suppress,
[T]he individual who consented to the search had legal access to the shared garage. She had full right and authority to allow the police into her portion of the garage. Defendant's portion was plainly visible from her portion. The inherent lack of privacy in this arrangement was readily apparent to [d]efendant. In addition, the officers did not exceed the scope of the consent to search as there is no evidence, or even argument, that they entered [d]efendant's space prior to the warrant for same being issued.
On appeal, defendant does not dispute that the police properly entered the
garage with the consent of the other tenant. However, he now argues that the
results of the search should have been suppressed because the plain view
exception to the warrant requirement did not apply because the discovery of
defendant's car was not inadvertent. Initially, we note that because the search
was valid under the consent exception to the warrant requirement, the State did
not have to also demonstrate that the plain view exception applied.
Nevertheless, we will briefly address the issue.
The plain view exception to the warrant requirement has three elements:
(1) "the police officer must be lawfully in the viewing area"; (2) "the officer has to discover the evidence 'inadvertently,' meaning that he did not know in
A-4795-17T3 17 advance where evidence was located nor intend beforehand to seize it"; and (3) "it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." [1]
[State v. Reininger, 430 N.J. Super. 517, 535-36, (App. Div. 2013) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).]
Defendant concedes that prongs one and three of the plain view exception
were satisfied because the police entered the garage with the permission of the
other tenant, and it was immediately apparent that defendant's car, which had
been seen on the surveillance video, was evidence of a crime. However,
defendant argues that the officers expected to find defendant's car in the garage
and, therefore, the "inadvertent discovery" prong of the test was not met. We
disagree.
The record reflects that the police had defendant's apartment under
surveillance, and he was not home. They did not know defendant's whereabouts
or whether he was using his car. Under those circumstances, the officers were
clearly not certain that the car would be in defendant's garage. Therefore, t heir
discovery of the car was "inadvertent" under the then-governing case law.
1 On November 15, 2016, our Supreme Court held prospectively "that an inadvertent discovery of contraband or evidence of a crime is no longer a predicate for a plain-view seizure." State v. Gonzales, 227 N.J. 77, 82 (2016). A-4795-17T3 18 VI.
In Point V, defendant argues that his sentence was excessive because the
trial judge improperly applied the aggravating factors. Again, we disagree.
Trial judges have broad sentencing discretion as long as the sentence is
based on competent credible evidence and fits within the statutory framework.
State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider
"any relevant aggravating and mitigating factors" that "are called to the court's
attention" and "explain how they arrived at a particular sentence." State v. Case,
220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297
(2010)). "Appellate review of sentencing is deferential," and we therefore avoid
substituting our judgment for the judgment of the trial court. Id. at 65.
We are satisfied the judge made findings of fact concerning aggravating
factors that were based on competent and reasonably credible evidence in the
record, and applied the correct sentencing guidelines enunciated in the Code.
Accordingly, we discern no basis to second-guess the sentence.
VII.
Finally, defendant correctly contends in Point VI that the judge should not
have imposed monetary fines upon him for count three because that count
A-4795-17T3 19 merged into the first-degree murder conviction under count one. 2 Therefore, we
remand for the entry of an amended Judgment of Conviction removing these
fines.
VIII.
In sum, we affirm defendant's convictions. However, we remand to the
trial court for the entry of an amended Judgment of Conviction removing the
fines imposed for count three. We otherwise affirm defendant's sentence. We
do not retain jurisdiction.
2 The State agrees that these fines should not have been assessed. A-4795-17T3 20