On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Graves and J. N. Harris.
Defendant Donald Naeem Bails appeals from a conviction for fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a), arguing a myriad of trial errors. After a review of the record and applicable law, we affirm the conviction and sentence imposed.
The following facts are derived from the trial record. On August 14, 2007, at approximately 12:14 a.m., Mohammad Ibrahim parked his car on Stevens Avenue in Jersey City and began walking in the direction of Westside Avenue. Ibrahim was heading to his cousin's house on McAdoo Avenue where he was then residing. As he was walking, Ibrahim observed two men walking on Westside Avenue towards McAdoo Avenue. The men changed course and began walking towards Ibrahim on Stevens Avenue, following him as he crossed to the other side of the street. As the two men approached Ibrahim, defendant struck Ibrahim in the shoulder and grabbed his waist to restrain him. The second man, later identified as Dawon Simmons, asked Ibrahim if he had any money on his person. Ibrahim replied, "No," at which point Simmons asked for a dollar and grabbed at Ibrahim's front pockets. Ibrahim struggled to break free and eventually was able to do so. He ran towards his relatives' house, calling out for help in Arabic. Defendant and Simmons followed Ibrahim until Ibrahim turned left and proceeded to his cousin's house at the corner of Westside Avenue and McAdoo Avenue.
Ibrahim's cousin, Ahmad Abdallah, and his cousin's friend were standing in the fenced-in yard when Ibrahim approached. After Ibrahim explained what had just happened, Abdallah suggested -- rather than calling the police -- that they go for a ride in to "take a look at them." Three or four minutes later, near the corner of Stevens Avenue and Sterling Avenue, Ibrahim spotted the two men again. Abdallah began questioning them from the vehicle, asking, "[w]hat [were] you trying to do to my cousin?" Defendant, standing with one hand behind his back, replied, "I'll show you what I'm going to [do to] your son [sic]. I'll rob him."
Fearing that defendant might be holding a gun behind his back, Ibrahim
and Abdallah immediately fled to the McAdoo Avenue address where they
contacted the police from a cell phone. According to Ibrahim, a Jersey
City plain clothes police officer, Sergeant William Logan, arrived at
the house in an unmarked car within two minutes. Ibrahim gave Logan a
physical description of the two men, which was immediately relayed
over the police radio. One male was described as "wearing a black
do-rag, white t-shirt, and . . . athletic-type blue shorts." The
second male was described as "a little bit bigger, had a
white do-rag, black t-shirt, and blue-jean shorts."*fn1
As Logan pulled away from the house, he received word that
police officers had apprehended two suspects fitting the description.
Logan then returned to the McAdoo Avenue house, and informed Ibrahim
that he would be taken to view two possible suspects for
Meanwhile, uniformed Jersey City police officers Rodney Collington and Travis Evans had stopped and searched two men that fit the radioed description and were holding them at a location on McAdoo Avenue (approximately one block from Abdallah's house) until Logan arrived. Shortly thereafter, Simmons was escorted into a lit area of the avenue for viewing. Ibrahim, who was seated in the backseat of Logan's unmarked vehicle, stated that he was "a hundred-percent sure" that Simmons was "the smaller guy," one of the individuals who had attempted to rob him. After receiving a nod from police officer Joseph Cossolini, indicating that Simmons had been identified as one of the actors, Collington walked Simmons back to a patrol car.
Then, as Cossolini began to escort defendant into the viewing area in the middle of the avenue, defendant cursed at him and swung at his head, striking Cossolini in the shoulder and neck. Cossolini then "tried to take [defendant] to the ground," at which point what Cossolini described as a "wrestling match" ensued. With defendant "screaming [and] cursing," telling Cossolini, "I'm going to fuck you up," defendant then attempted to bite Cossolini's right thigh during the scuffle. Cossolini thereupon elbowed defendant in the face in order to subdue him. Defendant was eventually handcuffed with the assistance of two or three additional police officers and was transported to the South District precinct for processing.
As a result of the tussle, Ibrahim did not make an identification of defendant on the avenue. Instead, Ibrahim was driven to the South District precinct where he identified defendant as the second man who tried to rob him.
In addition to preparing a routine police report, Cossolini filed a supplementary investigative report detailing the manner in which he used force to subdue defendant, as well as a so-called use-of-force report. However, the use-of-force report could not be located at the time of trial. Cossolini testified that after completing the use-of-force report that evening, he "put it with all [his] paperwork and gave it to the sergeant to review it. Copies are made, put in different boxes to, you know, to be disseminated to the department, and that's the last [Cossolini] saw of it."
During the five-day jury trial, the State presented several witnesses including Ibrahim, Abdallah, Logan, Collington, Cossolini, and Detective Richardo Orellano. Defendant did not testify. The jury could not reach unanimity on count one (first-degree robbery), but it convicted defendant on the remaining counts. A mistrial as to that charge was declared by the court.
At sentencing, the trial judge merged the charge of resisting arrest with the aggravated assault charge, and sentenced defendant to three years imprisonment. This appeal ensued.
Defendant presents the following points for our consideration:
POINT I: THE STATE'S FAILURE TO PRODUCE POLICE REPORTS VIOLATED BRADY AND REQUIRES REMAND FOR A FULL EVIDENTIARY HEARING BASED ON PLAIN ERROR (NOT RAISED BELOW).
POINT II: IT WAS PLAIN ERROR TO CONDUCT THE TRIAL WHEN THE PROSECUTION AND POLICE DEPARTMENT WITHHELD BRADY MATERIAL THAT DENIED MR. BAILS DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).
POINT III: A NEW TRIAL IS REQUIRED BASED ON NEWLY DISCOVERED POLICE REPORTS WITHHELD IN VIOLATION OF MR. BAILS' RIGHT TO DUE PROCESS, FAIR TRIAL AND ...