February 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAMID ABDUL-SHABAZZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-01-0037-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2008
Before Judges Coburn, Fuentes and Grall.
The jury found defendant, Hamid Abdul-Shabazz, guilty of first degree armed robbery, N.J.S.A. 2C:15-1 (Count 1); third degree aggravated assault (as a lesser included offense of attempted murder), N.J.S.A. 2C:12-1(b)(7) (Count 2); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count 3); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count 4). The jury found defendant not guilty of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count 5). After receiving those verdicts, the judge submitted Count 6 to the same jury in the appropriate manner. Count 6 charged second degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The jury found defendant guilty.
The judge merged the second, third and fourth counts into the first count, for which defendant received a prison term of eighteen years with the parole ineligibility term required by the No Early Release Act. On the sixth count defendant received a concurrent sentence of imprisonment for eight years with parole ineligibility for five years. The jury also found the co-defendant, Anthony Cantey, guilty of second degree robbery and hindering apprehension.
On May 3, 2003, at approximately 4:40 a.m., defendant was released from a Passaic jail, and around 5:00 a.m., defendant's girlfriend, Tia Plummer, and her mother picked defendant up at the jail and took him to their home. They had previously provided a cousin with $3,000 for payment of fines on defendant's behalf. Although $1,000 of the money was defendant's, the rest came from Tia and her mother. According to Tia and her mother, defendant slept in their house until around noon. As shall be seen, that alibi testimony was belied by the victim's testimony, to which we now turn.
On May 3, 2003, at about 7:30 a.m., the victim, Joseph Robinson left his house to go to Passaic County Community College, where he was enrolled as a student. While walking on Summer Street in Patterson, he saw two people nearby. He later identified them as defendant and Cantey. Cantey hit Robinson in the shoulder. Robinson turned and found defendant facing him. A struggle ensued during which the victim was slapped while his assailants tried to pull things from his pockets and take his backpack. Robinson tried to run, but defendant caught him and struck him in the face. Cantey then left; after which, defendant pointed a handgun at Robinson, threatened him, laughed, and then left.
A police officer arrived on the scene at about 7:45 a.m. and noticed that Robinson, who was upset and exited, had reddened skin near his left eye. Robinson described the event and provided descriptions of his assailants. At that time, he referred to defendant as Hispanic.
In mid-May, Robinson saw Cantey on the street and called the police. Shortly after the police arrived, Robinson saw Cantey riding a bike and pointed him out to the police, who effected an arrest.
In early June, Robinson saw defendant on the street, called the police and told them that defendant had just entered a particular building on Summer Street. The police entered the building, found defendant, and brought him outside, where Robinson made a positive identification of defendant as one of his two attackers. When questioned, defendant told the police that he could not have committed the crime because he was in jail when it was committed.
Defendant offers the following arguments for reversal of his convictions:
THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH STATED THAT THE APPELLANT HAD A MOTIVE TO COMMIT THE CRIME AND HIS COMMENTS REGARDING THE PRESENCE OF CASH IN THE HOUSEHOLD OF SHABAZZ'S GIRLFRIEND, DENIED HIM OF HIS STATE AND CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.
THE COURT'S NON-SPECIFIC JURY CHARGE AS TO THE ISSUE OF IDENTIFICATION WAS IMPROPER AND CONSTITUTES PLAIN ERROR.
THE FAILURE TO HOLD A WADE HEARING OF THE VICTIM'S OUT OF COURT IDENTIFICATIONS CONSTITUTED PLAIN ERROR AND MUST LEAD TO A REVERSAL OF DEFENDANT'S CONVICTIONS.
THE STATE'S FAILURE TO SUPPLY THE GRAND JURY WITH INSTRUCTION AND GUIDANCE AS TO THE ISSUE OF CROSS-RACIAL IDENTIFICATION AMOUNTED TO PROSECUTORIAL MISCONDUCT OF CONSTITUTIONAL PROPORTION; THE COURT MUST THEREFORE, AS A REMEDY TO THIS VIOLATION, REVERSE THE DEFENDANT'S CONVICTION AND DISMISS ALL CHARGES WITH PREJUDICE.
THE ADMISSION OF EVIDENCE OF THE PAYMENT OF SHABAZZ'S FINE, WHEN COMBINED WITH THE PROSECUTOR'S COMMENTS REGARDING SHABAZZ'S MOTIVE FOR ROBBERY, TO-WIT: TO PAY BACK THE MONEY USED TO PAY THE FINE TO SECURE HIS RELEASE, CONSTITUTED PLAIN ERROR WHICH DEPRIVED HIM OF A FAIR TRIAL.
THE VERDICT AGAINST SHABAZZ WAS AGAINST THE WEIGHT OF THE CONSTITUTIONALLY-RELEVANT EVIDENCE; AS A RESULT, THE DEFENDANT IS ENTITLED TO A NEW TRIAL.
THE TRIAL JUDGE'S INSTRUCTION ON ACCOMPLICE LIABILITY WAS ERRONEOUS AND CONSTITUTED PLAIN ERROR; SINCE IT WAS CAPABLE OF PRODUCING AN UNJUST RESULT, DEFENDANT SHABAZZ'S CONVICTION MUST BE REVERSED.
DEFENDANT SHABAZZ'S VERDICT MUST BE VACATED AND REMANDED FOR A NEW TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT SHABAZZ WAS ENTITLED TO A JUDGMENT OF ACQUITTAL WITH RESPECT TO THE CHARGE OF ARMED ROBBERY.
THE SEVERAL ERRORS COMPLAINED OF IN POINTS I TO VII OF DEFENDANT'S BRIEF CONSTITUTES CUMULATIVE ERROR SUCH THAT THE DEFENDANT'S CONVICTION BEYOND A REASONABLE DOUBT WAS BASED UPON THE EXISTENCE OF THOSE ERRORS AND NOT EVIDENCE.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). Nevertheless, we add the following comments. In his first point, defendant contends that the prosecutor committed error by asserting that defendant's motive for the robbery was to get money to repay his girlfriend and her mother for his fines. The prosecutor's argument was in direct response to defense counsel's summation, which included the statement that defendant did not "need to go and commit a robbery." This point was not raised below, and the cases now cited by defendant provide no support for the claim of error. Assuming the prosecutor's remarks were erroneous, we are satisfied that they were not clearly capable of producing an unjust result, R. 2:10-2, since the overarching issue in this case was identification, not motive, and the prosecutor did not argue that defendant robbed because he had no other source of income.
The identification charge, which included specific instructions on cross-racial identification*fn1 , was sufficient under State v. Green, 86 N.J. 281, 293 (1981), and State v. Cromedy, 158 N.J. 112, 132 (1999). This point was not raised below. We perceive no error, and certainly no plain error.
We affirm the denial of a Wade*fn2 hearing substantially for the reasons expressed by the trial judge, while noting that there was obviously no evidence of police suggestiveness since it was the victim who called the police to arrest the perpetrators after he had seen each of them in the street subsequent to the robbery.
There is no legal basis for defendant's claim that the prosecutor was obliged to give a Cromedy cross-racial identification charge to the grand jury.
As to defendant's fifth point, we note that the cases he cites, State v. Terrell, 359 N.J. Super. 241 (App. Div.), certif. denied, 177 N.J. 577 (2003), and State v. Mathis, 47 N.J. 455 (1966), provide inadequate support for his claim. In those cases, reversals occurred because the prosecutor argued that the defendant's lack of employment and consequent lack of money provided the motive for theft. Here the prosecutor did not attempt to prove or argue that defendant was unemployed or needed money; rather, the argument, to which there was no objection, was simply that defendant committed the robbery to repay the debt, not that he had no other source of funds.
On defendant's sixth point, his claim that he was entitled to a new trial because the verdict was against the weight of the evidence, we affirm substantially for the reasons expressed by the trial judge in his oral opinion of August 25, 2006.
The judge's charge on accomplice liability, to which there was no objection, fully complied the model jury charge and with our decision in State v. Bielkiewcz, 267 N.J. Super. 520 (App. Div. 1993). Consequently, defendant's seventh point is rejected.
Defendant's eighth point concerns a claim of ineffective assistance of counsel. He argues that the errors earlier addressed demonstrate his attorney's deficiencies. Since we are satisfied that there were no reversible errors, this claim must fail.
In his ninth point, defendant argues that he was entitled to a judgment of acquittal on the charge of armed robbery. Defendant did not move for this relief during trial. Had he done so, the judge would have had to deny the motion. On a motion to acquit, the test is simply whether there is evidence sufficient to warrant a conviction, giving the State the benefit of all its favorable testimony and favorable inferences. State v. Reyes, 50 N.J. 454, 458-59 (1967). Here, the evidence given by the victim was that defendant and the co-defendant were physically accosting him while reaching into his pockets and trying to take his backpack. Then, defendant produced a handgun, which he pointed at the victim while threatening his life. That evidence fully supported the verdict of armed robbery as to defendant.
Defendant's last point is that cumulative errors justified his motion for a new trial. Since we do not believe that there were any errors, we obviously must reject this argument.