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State of New Jersey v. Donald Naeem Bails


October 19, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1583.

Per curiam.


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 identification.

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:








We find none of these arguments persuasive and have no basis to reverse the conviction and sentence.


With the exception of point seven's challenge to the propriety of his sentence, all of defendant's arguments have been raised for the first time on appeal. Accordingly, we review these newly-minted contentions under the lens of plain error as articulated in Rule 2:10-2. Pursuant to this standard, we will not reverse on the basis of such error unless we find it was "clearly capable of producing an unjust result." Ibid. The possibility of producing an unjust result "must be real, one 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. Macon, 57 N.J. 325, 336 (1971). Moreover, our assessment 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). Additionally, the absence of an objection at the time the alleged error occurred may suggest that counsel did not consider such error to be significant in the context of the trial. Macon, supra, 57 N.J. at 333.


In his first and second points, defendant argues that the State's failure to produce Cossolini's use-of-force report violated his due process rights under Brady*fn2 and Rule 3:13-3(c)(5) and (8). In particular, defendant contends that the prosecution's failure to produce the use-of-force report prejudiced his case by impeding his ability to cross-examine the officers involved in his arrest and by weakening his claim of self-defense.*fn3 He further asserts that it is irrelevant under Brady that defense counsel failed to request the use of force report at trial since Brady applies even when no formal request has been made. See State v. Nelson, 330 N.J. Super. 206, 212 (App. Div. 2000). Defendant asks that we remand for an evidentiary hearing to determine whether the use-of-force report contained material evidence favorable to the defense. We disagree.

Under Brady, the State is required to disclose evidence favorable to the defense, Brady v. Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963), and which "tend[s] to raise a reasonable doubt about defendant's guilt." State v. Marshall, 123 N.J. 1, 107 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Whether the suppression, loss, or destruction of evidence amounts to a violation of due process depends on whether 1) the evidence was suppressed, 2) the evidence was favorable to the accused and 3) the evidence was material. State v. Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009). Moreover, where "the defense has made no request, or only a general one, for the undisclosed material" at trial, as here, "the defense must show that 'the omitted evidence creates a reasonable doubt that did not otherwise exist.'" State v. Carter, 85 N.J. 300, 312 (1981) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342, 355 (1976)). Furthermore, "[w]hen the evidence withheld is no longer available . . . a defendant may show that the evidence had 'an exculpatory value that was apparent before [it] was destroyed' and that 'the defendant would be unable to obtain comparable evidence by other reasonably available means.'" Mustaro, supra, 411 N.J. Super. at 102 (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984)). The critical issue becomes "whether in the absence of the undisclosed evidence did the defendant receive a fair trial which is understood as a trial resulting in a verdict worthy of confidence." State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000); see also State v. E.W., 413 N.J. Super. 70, 81 (App. Div. 2010) (holding that evidence is "material" if "there was a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different").

In light of Cossolini's testimony at trial, which was consistent with his police report, there was more than ample evidence to convict defendant. See Carter, supra, 85 N.J. at 313 ("[A] conviction need not be vacated under the Brady rule if the undisclosed information is merely cumulative or repetitious as to the purpose for which it could have been used."). Cossolini testified that defendant swung at him and that in an ensuing struggle, defendant tried to bite him, at which point Cossolini elbowed defendant in the face to subdue him. This revelation was made at trial and there is no evidence that the missing use-of-force report, completed by Cossolini himself, told a different story. Additionally, defense counsel was provided with Cossolini's supplemental report in which he detailed the assault, including the fact that he "elbowed Bails in the face" when defendant tried to bite him. Defendant has demonstrated no prejudice in not having the cumulative use-of-force report available for cross-examination of Cossolini.

There is also no evidence to show that the prosecution failed to disclose evidence in its possession or that the useof-force report was destroyed in bad faith. See Mustaro, supra, 411 N.J. Super. at 105. Cossolini testified to the contents of the report at trial, what he did with the report after he completed it, and the steps he took to look for it prior to trial. His best guess was that it was lost somewhere in transit between the South District precinct and Erie Street Police Headquarters. Other than rank speculation, defendant offers no evidence to the contrary. We conclude that defendant's due process rights were not violated in this case.


Defendant's third point contends that the use-of-force report is a species of newly discovered evidence, and perforce, he is entitled to a new trial. In general, "[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171, 187 (2004). For newly discovered evidence to warrant a new trial, it must be "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999) (citing Carter, supra, 85 N.J. at 314), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964; see also Ways, supra, 180 N.J. at 188 (newly discovered evidence must be material and "of sufficient weight that it would probably alter the outcome of the verdict in a new trial").

Defendant does not satisfy any of the three elements necessary for a newly discovered evidence analysis. Consequently, the newly discovered evidence rule does not apply. All parties were fully aware of the existence of the use-of-force report at trial. Cossolini testified openly about writing the report and the subsequent efforts he made to locate it prior to trial. Plainly, such evidence was not "discovered since the trial" and therefore not subject to the rule. More significantly, defendant was given a full opportunity during the trial to impeach Cossolini's credibility through cross-examination concerning why the police could not find the use-of-force report. We are unconvinced that the availability of the use-of-force report during the trial would have altered the outcome of the case.


Defendant's next argument raises the specter of a Sixth Amendment violation insofar as he claims that the show-up identification procedure in this case lacked reliability and was unduly suggestive. We disagree.

The trial court's findings at a Wade*fn4 hearing are "'entitled to very considerable weight'" on appeal. State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Following the Wade hearing in this matter, the trial court denied defendant's motion to suppress the out-of-court identification, concluding that it was not shown, by a preponderance of credible evidence, that the identification was impermissibly suggestive. The court also noted the accuracy of the suspects' descriptions, the certainty of Ibrahim's identification, the credibility of the State's witnesses, the brief length of time between the crime and the confrontation,and Ibrahim's testimony that the police did not influence his identification in any way. Even if show-ups are necessarily suggestive, the trial court observed that in the instant case, "there was no substantial likelihood of irreparable misidentification . . . under the totality of the circumstances."

Defendant argues that the identification was infected by impermissible suggestivity because he was accompanied by a police officer and handcuffed behind his back during the show-up at the South District precinct. He further contends that because Ibrahim was told that Bails "fit the description," the out-of-court identification was rendered unreliable.

Even though "'one-on-one show-ups are inherently suggestive,'" not all show-ups are improper. State v. Romero, 191 N.J. 59, 76-77 (2007); see also State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). For example, while an identification was found to be impermissibly suggestive where a victim was told that the police had apprehended the "man who had been . . . driving her car," we held that an identification of a defendant while he was handcuffed and seated in the back of a patrol car was not "per se improper and unconstitutional" in light of the detailed descriptions offered by witnesses, which were also corroborated by a motel security videotape. Wilson, supra, 362 N.J. Super. at 327.

In the instant matter, the scuffle involving defendant and Cossolini led Ibrahim to be brought to a detective's office at the South District precinct where he viewed defendant through "a two-way glass."*fn5 Defendant was approximately five or six feet from Ibrahim at the time and was handcuffed behind his back. At the Wade hearing, Orellano testified that he knew defendant was handcuffed behind his back but he could not recall whether defendant was asked to turn around. Ibrahim testified that he could not recall whether or not defendant was in handcuffs at the time. Within fifteen to twenty seconds of viewing defendant, Ibrahim told Orellano, "that's him. That's the guy that hit me."

Apart from the inherent suggestiveness of the show-up, there is no evidence that Ibrahim was influenced or encouraged in any way by the police to identify defendant as his assailant. Although Ibrahim was initially told that the police had located two men that "fit the general description," the officers made no specific representation that they believed defendant was the man who tried to rob him. Romero, supra, 191 N.J. at 78-79. Unlike in State v. Herrera, 187 N.J. 493 (2006), where police repeatedly told the victim of a carjacking that they he would be asked to identify "the occupant" of his stolen vehicle, id. at 506, there was no suggestion in the instant case that defendant was the suspected robber. Accordingly, the identification procedure did not "create a substantial likelihood of irreparable misidentification." Adams, supra, 194 N.J. at 199-200.

We concur that notwithstanding any flaws in the process, the identification was nonetheless reliable. First, Ibrahim was "face-to face" with defendant as he approached him on the street, and therefore had ample opportunity to view defendant at the time of the crime. Minutes later, Ibrahim provided an accurate description of defendant to Logan. Ibrahim also exhibited a high level of certainty during the show-up procedure, which took place just thirty-five to forty minutes after the event.*fn6 Accordingly, there was "sufficient indicia of reliability to outweigh the corrupting effect of the suggestive identification." State v. James, 144 N.J. 538, 546 (1996).*fn7


Secondly, defendant contends that the trial court's failure to sua sponte issue a jury instruction on self-defense was plain error, requiring reversal. In support of his contention that there was a rational basis to charge self-defense during the trial, defendant references his statement given for purposes of the post-trial pre-sentence investigation report, which was provided more than a month following the rendering of the jury's verdict.

Appropriate and correct jury instructions are essential to a fair trial. State v. Walker, 203 N.J. 73, 90 (2010); State v. R.T., 411 N.J. Super. 35, 46 (App. Div. 2009), aff'd, 205 N.J. 493 (2011). Because defendant did not object to the jury charge at trial, we consider his claim under the plain error rule. Walker, supra, 203 N.J. at 89-90.

[I]n the context of a jury charge, plain error requires demonstration of legal impropriety of the charge prejudicially affecting the substantial rights of the defendant 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. [Id. at 90 (quoting State v. Burns, 192 N.J. 312, 341 (2007)).]

Furthermore, the perceived error "must be considered in light of the entire charge and must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

Defendant was convicted of third-degree resisting arrest, N.J.S.A. 2C:29-2(a), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). Under N.J.S.A. 2C:29-2(a)(1), "a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." Resisting arrest is a crime of the third-degree if a person "[u]ses or threatens to use physical force or violence against the law enforcement officer or another" or "[u]ses any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3)(a); -2(a)(3)(b).

In general, a citizen must submit to an arrest even if the arrest is later proven to be unlawful. State v. Crawley, 187 N.J. 440, 453, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006) (citing N.J.S.A. 2C:29-2(a)). So long as the officer was "'acting under color of his official authority and . . . announce[d] his intention to arrest prior to the resistance,'" a citizen will not be justified in resisting an arrest. Ibid. (quoting N.J.S.A. 2C:29-2(a)).

An important exception to this general rule arises when an officer uses excessive or unlawful force against a citizen in order to effect an arrest. State v. Mulvihill, 57 N.J. 151, 155-56 (1970). In such cases, evidence of self-defense, if objectively reasonable, may excuse a defendant from liability for a crime whose elements have otherwise been proven. State v. Williams, 168 N.J. 323, 332-33 (2001). Our criminal jurisprudence permits an individual "the use of force . . . only if he 'reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force. . . .'" Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 296 (App. Div. 2010) (quoting N.J.S.A. 2C:3-4(a)).

A trial judge must charge self defense "'if there exists evidence in either the State's or the defendant's case sufficient to provide a 'rational basis' for [its] applicability.'" State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (quoting State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.), certif. denied, 144 N.J. 589 (1996)). Here, the evidence presented did not remotely indicate a rational basis to charge self-defense.

A police officer may use "such force as is reasonable under the circumstances" to effectuate an arrest. State v. Simms, 369 N.J. Super. 466, 472 (App. Div. 2004). Moreover, "one who provokes or initiates an assault," State v. Rivers, 252 N.J. Super. 142, 149 (App. Div. 1991), or one who "'knows that if he submits to the officer, the officer's excessive use of force will cease,'" may not avoid liability by invoking self-defense as a defense, Simms, supra, 369 N.J. Super. at 472 (citing State v. Mulvihill, 57 N.J. 151, 157 (1970)).

Here, the evidence demonstrated only that Cossolini used force as a last resort. Not until defendant told Cossolini that he was "going to fuck [Cossolini] up" and then tried to punch Cossolini in the head did the officer grab defendant and "tried to take him to the ground." It was only when defendant tried to bite Cossolini's right thigh that Cossolini elbowed defendant's face. In light of the state of the evidence at the time of trial, there was no rational basis whatsoever for a self-defense charge. Defendant's self-serving accusation of police brutality a month after the trial ended cannot be a basis for the invocation of self-defense.


Defendant's final argument relates to his sentence. The trial court imposed the shortest term available for the merged charges of fourth-degree aggravated assault and third-degree resisting arrest. Nevertheless, defendant claims the sentence is infirm because the trial judge neglected to identify and then weigh four mitigating factors. We find no basis to adjust the sentence.

Appellate review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Absent a "clear error of judgment," an appellate court may not substitute its judgment for that of the sentencing court. Ibid. (quoting State v. Roth, 95 N.J. 334, 363-65 (1984)). So long as the sentence is within statutory guidelines and the aggravating and mitigating factors "'were based upon competent credible evidence in the record,'" it will not be disturbed. State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)); see also State v. Clarke, 203 N.J. 166 (2010),

The sentencing range for a crime of the fourth-degree is "a specific term which shall be fixed by the court and shall not exceed 18 months." N.J.S.A. 2C:43-6(a)(4). The sentencing range for a crime of the third-degree is between three and five years. N.J.S.A. 2C:43-6(a)(3). The court merged count two (third-degree resisting arrest) with count three (fourth-degree aggravated assault) and sentenced defendant to a term of three years, at the lowest end of the sentencing range for crimes of the third-degree. Defendant's sentence was not only within, but at the lowest end of, the sentencing spectrum.

With respect to aggravating and mitigating factors, the trial court found aggravating factors three, six, and nine, and no mitigating factors. The aggravating factors applied were:

(3) [t]he risk that the defendant will commit another offense . . . (6) [t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted . . . [and]

(9) [t]he need for deterring the defendant and others from violating the law. [N.J.S.A. 2C:44-1(a).]

All three aggravating factors were based on defendant's juvenile weapons charge, three fourth-degree convictions as an adult including two unlawful means of conveyance convictions and one conviction for hindering apprehension of another, and a history of committing crimes while on probation. Defendant contends that because he had no prior convictions for assaults or resisting arrest, aggravating factor three was inapplicable. There is no provenance in the law for defendant's argument, as aggravating factor three does not require that a defendant's criminal history contain the same crimes for which he is being sentenced. N.J.S.A. 2C:44-1(a)(3). The aggravating factors were based on credible evidence in the record.

Defendant further contends that the record supported three mitigating factors based on his claim of innocence during his post-conviction interview:

(3) [t]he defendant acted under a strong provocation; (4) [t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense; [and] (5) [t]he victim of the defendant's conduct induced or facilitated its commission.

[N.J.S.A. 2C:44-1(b).]

Although the Law Division was required to consider the presentence report as part of the record, the court did not abuse its discretion in failing to credit defendant's post-conviction statement. Also, we find that defendant's claim that he was entitled to the benefit of mitigating factor eight ("defendant's conduct was the result of circumstances unlikely to recur"), N.J.S.A. 2C:44-1(b)(8), is not supported by the record. See State v. Dalziel, 182 N.J. 494, 505 (2005).

Finally, while no statutory mitigating factors were found applicable, the court did take into account that Cossolini enthusiastically seemed "ready to fight rather quickly when events happened" and that defendant's actions were not a "major assault upon the officer." We discern no abuse of discretion in the judge's identification and weighing of the applicable sentencing factors.


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