STATE OF NEW JERSEY VS. HAKIM R. NELSON (15-11-1363, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 23, 2020
• Docket: A-0684-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0684-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKIM R. NELSON, a/k/a DARNELL KNIGHT and RAUSHAWN NELSON,

Defendant-Appellant.

Submitted June 4, 2020 – Decided July 23, 2020

Before Judges Alvarez and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-11- 1363.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen William Kirsch, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Daniel A. Finkelstein, Deputy Attorney General, of counsel and on the brief). PER CURIAM

Tried by a jury, defendant Hakim R. Nelson was convicted of all twelve

counts in an indictment. As to Ahmad Musleh: third-degree impersonation/theft

of identity, N.J.S.A. 2C:21-17(a) (count one); fourth-degree trafficking in

personal identifying information, N.J.S.A. 2C:21-17.3(a) (count two); third-

degree theft by deception, N.J.S.A. 2C:20-4 (counts three and four); and second-

and third-degree computer theft, N.J.S.A. 2C:20-25(c) (counts five and six). As

to Alberto Parache: third-degree impersonation/theft of identity, N.J.S.A.

2C:21-17(a) (count seven); fourth-degree trafficking in personal identifying

information, N.J.S.A. 2C:21-17.3(a) (count eight); third- and fourth-degree theft

by deception, N.J.S.A. 2C:20-4 (counts nine and ten); third-degree attempted

theft by deception, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4 (count eleven); and

second-degree computer theft, N.J.S.A. 2C:20-25(c) (count twelve). 1 After

appropriate mergers, the judge sentenced defendant on September 7, 2018, to

the following concurrent terms: five years on count one, eighteen months on

count two, ten years on count five subject to five years parole ineligibility, and

1 Defendant's co-defendant, Lincoln Balfour, a bank employee, was charged in the two remaining counts of the indictment with second-degree computer theft, N.J.S.A. 2C:20-25(e) (count thirteen); and second-degree access and disclosure, N.J.S.A. 2C:20-31(b) (count fourteen). A-0684-18T1 2 five years on count six. The judge imposed the sentences for the crimes

committed against the second victim consecutively to count five, although all

were concurrent to each other. They were: on count seven, imprisonment of

five years; on counts eight and ten, eighteen-month terms; on count twelve, eight

years subject to parole ineligibility of four years. Thus, defendant's aggregate

sentence was eighteen years imprisonment with the corresponding terms of

parole ineligibility. For the reasons that follow, we affirm.

Defendant impersonated Musleh and Parache on the phone gaining access

to their TD Bank accounts and stealing approximately $26,000 from the two

victims. During the trial, two sets of recorded phone calls made to TD Bank

were played for the jury. One set dated from September 2014 and consisted of

the suspect claiming to be the victims. The other set was defendant's calls

accessing his own bank accounts. The latter was introduced to compare

defendant's voice to that of the thief.

Piscataway Police Department Sergeant Daniel Kapsch and Musleh

testified that the impersonator's voice was defendant's. The recordings are the

focus of defendant's appeal.

Pretrial, the court conducted a Rule 104 hearing regarding the

admissibility of Kapsch’s testimony identifying defendant as the speaker.

A-0684-18T1 3 During that hearing, Kapsch said he interacted with defendant beginning in

December 2004, when he responded to a call about a verbal dispute. Kapsch

encountered defendant again when he arrested and processed him in July 2005,

August 2005, and March 2006. He interacted with defendant a number of times

while on routine patrol and was acquainted with defendant's father.

Kapsch testified he listened to the phone calls between the person

impersonating Musleh and Parache after obtaining documents from TD Bank's

investigation that had "developed defendant as a suspect." Although it had been

nine years since the last contact, he identified defendant's voice because it was

so distinctive.

During his investigation, Kapsch spoke with defendant on the phone. The

fraudulent calls originated from that same number. Having heard defendant's

voice again, Kapsch was one hundred percent certain defendant was the person

who called TD Bank, pretending to be the real account owner.

In his oral decision regarding the admissibility of Kapsch's identification,

the judge found Kapsch credible and forthcoming. Kapsch's opinion was

"rationally based on his perception, the perception made when he interacted with

the defendant and what he heard on the audiotape." Additionally, the testimony

would assist the jury in ascertaining the identity of the caller to TD Bank.

A-0684-18T1 4 When the hearing was conducted, the State had not informed defendant

that it would also play taped calls he allegedly made directly to TD Bank as a

way to identify the impersonator's voice. Defendant at that point was also

unaware Musleh would identify defendant's voice on the recordings.

During the trial, defendant questioned why Kapsch's testimony was even

necessary if the jury was going to have the opportunity to hear the voice of a

person identifying himself as defendant dealing with his TD Bank account.

Initially, the judge did not rule on the issue, as the argument shifted to whether

defense counsel had been provided copies of the tapes of defendant's phone

calls. When counsel raised the issue a second time at the end of the day, the

judge instructed counsel to provide additional research on the question, and

informed the attorneys he would revisit the matter after that.

On the next day of trial, the State filed a motion in limine requesting a 104

hearing on Musleh's testimony. Defense counsel again objected that Kapsch

should not be allowed to identify defendant when the jury could make their own

finding based on comparisons of the two sets of phone calls. Counsel and the

judge engaged in a colloquy during which defense counsel stated defendant

would not stipulate that it was his voice on the recordings made to the bank

regarding his own account. The judge ruled that the jury could hear Kapsch's

A-0684-18T1 5 identification, in addition to the tapes allegedly of defendant's voice regarding

his own account.

During the 104 hearing, Musleh testified he recognized defendant's voice

because he shopped at his supermarket approximately once a month over the last

five years. The judge ruled that Kapsch and Musleh could both "testify that they

recognize the voice on the audio recordings captured by TD bank wherein the

defendant purportedly is impersonating [the victims]."

When Musleh testified before the jury, he identified defendant as the

caller who impersonated him based on his acquaintance over the years. Kapsch

also testified, explaining he knew defendant from the community, and identified

his voice as the impersonator. During the course of the State's presentation, the

prosecutor played several clips, asking Musleh and Kapsch after each if they

could confirm the voice was defendant's.

The jury also heard the testimony of a senior investigator at TD Bank.

After Parache reported the fraudulent transactions on his account, the

investigator requested certain documents "[t]o see if there was any internal link

to the fraud." When asked if she developed any suspects as a result, she stated

"[t]he internal was Lincoln Balfour which then led to Hakim Nelson."

A-0684-18T1 6 In his closing charge to the jury, the judge instructed on counts eleven and

twelve, attempted theft by deception and computer criminal activity, stemming

from defendant's last failed attempts to withdraw money from the victims'

accounts. The attempts were unsuccessful because the transactions were

blocked by the bank.

The judge further instructed:

The statute upon which this count of the indictment is based, states in pertinent part, a person is guilty of computer criminal activity, if the person purposely or knowingly, and without authorization, or in excess of authorization, accesses or attempts to access any data, data base, computer, computer storage medium, computer program, computer software, computer equipment, computer system, or computer network for the purpose of executing a scheme to defraud, or to obtain services, property, personal identifying information, or money, from the owner of a computer or any third party.

In order to convict defendant of computer criminal activity, the State must prove the following elements beyond a reasonable doubt. One, that defendant purposely or knowingly accessed or attempted to access any data, database, computer, computer storage or medium, computer program, computer software, computer equipment, computer system, or computer network.

That defendant did not have authorization or acted in excess of authorization. And that defendant acted with purpose to execute a scheme to defraud, or to obtain services, property, personal identifying

A-0684-18T1 7 information, or money, from the owner of a computer or any third party.

The first element that the State must prove beyond a reasonable doubt is that the defendant purposely or knowingly accessed or attempted to access any data, database, computer, computer storage medium, computer program, computer software, computer equipment, computer system, or computer network.

....

The second element the State must prove beyond a reasonable doubt is that the defendant did not have authorization or acted in excess of authorization.

The third element that the State has to prove beyond a reasonable doubt is that the defendant acted with purpose to execute his scheme to defraud or to obtain services, property, personal identifying information, or money from the owner of a computer or any third party.

At sentencing, based on defendant's substantial criminal history, which

included six prior indictable offenses, the judge found aggravating factors three,

six, and nine. No mitigating factors were found.

Defendant raises the following points on appeal:

POINT I

SIMILAR TO THE BASIS FOR REVERSAL IN STATE V. LAZO, THE TRIAL JUDGE

A-0684-18T1 8 IMPROPERLY ADMITTED, OVER DEFENSE OBJECTION, LAY OPINION TESTIMONY OF A POLICE OFFICER AND OF ANOTHER WITNESS THAT DEFENDANT'S VOICE WAS THE ONE HEARD ON RECORDINGS.

POINT II

IN VIOLATION OF THE CONFRONTATION AND HEARSAY DOCTRINES OF STATE V. BRANCH AND OTHER CASES, THE STATE IMPROPERLY INTRODUCED TESTIMONY THAT INVESTIGATORS DISCOVERED SECRET INFORMATION REGARDING THE CODEFENDANT'S STATUS AS THE "INTERNAL LINK" TO THE FRAUDS INSIDE TD BANK, AND THAT THEN THE CODEFENDANT, WHO DID NOT TESTIFY AT TRIAL, IMPLICATED DEFENDANT TO INVESTIGATORS.

POINT III

THE JURY WAS INCORRECTLY INSTRUCTED THAT ATTEMPTING TO ILLEGALLY ACCESS COMPUTER INFORMATION CONTRARY TO N.J.S.A. 2C:20-25C CAN BE COMMITTED WITH A PURPOSEFUL OR KNOWING STATE OF MIND WHEN ONLY A PURPOSEFUL STATE OF MIND SUFFICES FOR A CRIMINAL ATTEMPT.

POINT IV

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

A-0684-18T1 9 I.

"In reviewing a trial court's evidential ruling, an appellate court is limited

to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.

6, 12 (2008).

Defendant contends first that Kapsch and Musleh's testimony was

impermissible lay opinion testimony. The argument has no merit. Lay opinion

testimony is admissible if it "(a) is rationally based on the perception of the

witness and (b) will assist in understanding the witness' testimony or in

determining a fact in issue." N.J.R.E. 701. A lay witness's perception "rests on

the acquisition of knowledge through use of one's sense of touch, taste, sight,

smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011). The second

requirement "is limited to testimony that will assist the trier of fact either by

helping to explain the witness's testimony or by shedding light on the

determination of a disputed factual issue." Id. at 458.

Defendant relies heavily on State v. Lazo, 209 N.J. 9 (2012), in making

his argument. In that case, the New Jersey Supreme Court held that a police

officer's opinion that he selected the particular photograph of the defendant for

a photo lineup, because it resembled a composite sketch created based on the

victim's description, was inadmissible under Rule 701. Id. at 24.

A-0684-18T1 10 The Court considered federal cases in fashioning a standard for the

admissibility of identification lay testimony in New Jersey. This included a

Ninth Circuit case that held that "lay witness testimony is permissible where the

witness has had sufficient contact with the defendant to achieve a level of

familiarity that renders the lay opinion helpful." Id. at 22 (quotations omitted)

(quoting United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)). Whether

an opinion was "helpful" depends on a variety of factors including the witness's

familiarity with defendant's appearance, whether defendant disguised himself,

and whether the witness knew defendant over time and in a variety of

circumstances. Ibid. (quoting Beck, 418 F.3d at 1015); see also State v.

Carbone, 180 N.J. Super. 95, 97-100 (Law Div. 1981). Other factors include

whether additional, non-law enforcement witnesses could testify to defendant's

identification and whether defendant's appearance had changed prior to trial.

Lazo, 209 N.J. at 23.

There were a number of reasons the Lazo Court found the detective's

testimony inadmissible. A key distinction between those facts and these is that

the Lazo detective's testimony was not based on his prior personal familiarity

with defendant, stemmed entirely from the victim's description, and did nothing

more than bolster the victim's account. Id. at 24.

A-0684-18T1 11 In this case, however, both Kapsch and Musleh had a solid familiarity with

the distinctive sound of defendant's voice arising from their contacts with him

over multiple years. The testimony would assist the jury in determining a

disputed issue of fact, namely, the identity of the caller who made the illegal

transfers. Thus, the requirements of Rule 701 are met.

This jury had to assess whether, based on Kapsch and Musleh's testimony,

the voice they ultimately identified as belonging to defendant was his. Their

role was to make an independent judgment regarding, first, whether the

identification made by those witnesses, based on their perceptions over time,

was justified. But the jury was free to reject the identifications made by the

witnesses.

Nothing in Rule 701 prohibits the admission of lay testimony under these

circumstances. It was understandable that as a matter of strategy defense

counsel did not stipulate that his was the voice that purported to be directing

activity in his own account. The judge therefore did not abuse his discretion in

admitting the lay opinion testimony. It met the second requirement of N.J.R.E.

701—it assisted the jury in determining a fact in issue.

A-0684-18T1 12 II.

Defendant contends that the TD Bank investigator violated the

proscription against the introduction of the confession of a non-testifying co-

defendant. See State v. Gentry, 439 N.J. Super. 57, 72 (App. Div. 2015). It is

well-established that a co-defendant's inculpating out-of-court statement is

inadmissible as a violation of the rule against hearsay and a defendant's

constitutional right to confront witnesses. Id. at 72-73. Those rules did not

apply here.

The challenged testimony did not refer to anything that Balfour may have

said. Rather, the investigator only stated that as a result of her investigation,

she was led to defendant. Thus, the argument has no merit.

Defendant also contends that the admission violated State v. Bankston, 63

N.J. 263, 271 (1973) and State v. Branch, 182 N.J. 338, 349 (2005). The TD

Bank investigator was not a police officer, however, and her passing reference

to Balfour did not create an "inescapable inference" that the police received

information from an unknown source implicating defendant in the crime.

Bankston, 63 N.J. at 271. It is just as plausible that the jury would speculate

that the investigator was led to defendant through bank records, which were an

element of the State's case against defendant. The bank records indicated that

A-0684-18T1 13 defendant used stolen funds, for example, to pay the Cablevision bill for his

home and to purchase an automobile. After the victims' accounts were blocked,

he attempted to transfer $10,000 to two individuals who lived "a couple of

houses away" from him. This claim has no merit.

III.

We review jury instructions for plain error when no objections are raised

at trial. State v. Singleton, 211 N.J. 157, 182 (2012). Generally, a plain error is

one that is "clearly capable of producing an unjust result." R. 2:10-2. With jury

instructions, "plain error requires demonstration of 'legal impropriety in the

charge prejudicially affecting the substantial rights of the defendant and

sufficiently grievous to justify notice by the reviewing court and to convince the

court that of itself the error possessed a clear capacity to bring about an unjust

result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54

N.J. 526, 538 (1969)).

Defendant contends that the trial court erred as to counts eleven and

twelve by charging the jury that "a person is guilty of computer criminal activity,

if the person purposely or knowingly . . . accesses or attempts to access any data

. . . for the purpose of executing a scheme to defraud . . . ." He claims the verdict

sheet repeated the error, and that the error violates the well-established principle

A-0684-18T1 14 that a purposeful state of mind is required for criminal attempt. See State v.

Rhett, 127 N.J. 3, 7 (1992).

The computer criminal activity statute states "[a] person is guilty of

computer criminal activity if the person purposely or knowingly . . . [a]ccesses

or attempts to access any data, . . . ." N.J.S.A. 2C:20-25(c) (emphasis added).

The model jury charge restates the entire statute and informs the jury the State

must prove beyond a reasonable doubt that defendant “accessed or attempted to

access data” and that they did so "purposely or knowingly." Model Jury Charge

(Criminal), "Computer Criminal Activity – Access to Defraud" (approved June

11, 2018). Because the judge here followed the model jury charge verbatim,

there is no plain error. Mogull v. CB Commercial Real Estate Grp., 162 N.J.

449, 466 (2000) (“It is difficult to find that a charge that follows the

Model Charge so closely constitutes plain error.”). The lack of specificity that

the criminal attempt required a purposeful state of mind, given the nature of the

crime, did not have the capacity to bring about an unjust result. Thus, this

argument also lacks merit.

IV.

"An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

A-0684-18T1 15 (2018). A reviewing court's authority to overturn a trial court's sentence is

limited to a "clear error of judgment or a sentence that ‘shocks the judicial

conscience.'" State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v.

Roth, 95 N.J. 334, 363-65 (1984)). Specifically, a trial court is "clearly

mistaken" in its sentencing where the sentencing guidelines were not followed

or applied, the aggravating and mitigating factors are not based on sufficient

evidence in the record, or the application of the guidelines in the particular case

is so unreasonable as to shock the judicial conscience. State v. Jarbath, 114 N.J.

394, 401 (1989).

Defendant contends the judge did not consider two mitigating factors, one

and two, in sentencing him, thus making his sentence improper. Factor one is

that "defendant's conduct neither caused nor threatened serious harm," and

factor two is that the "defendant did not contemplate his conduct would cause

or threaten serious harm." N.J.S.A. 2C:44-1(b)(1) and (2). The amount of

money at issue defeats that argument. The judge found defendant's crimes had

"a profound effect on [the victims'] lives." Thus, the judge's failure to find

mitigating factors was not an abuse of discretion.

Affirmed.

A-0684-18T1 16