STATE OF NEW JERSEY v. HAIDAR RABAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0416-05T10416-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

HAIDAR RABAH,

Defendant-Appellant.

__________________________________

 

Submitted: May 30, 2006 - Decided June 29, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, No. 93-09-556A.

Haidar Rabah, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal concerns the denial of defendant's second petition for post-conviction relief. It returns to us following the proceedings directed in our February 1, 2005 opinion. See State of New Jersey v. Haidar Rabah, A-5235-03. We reverse and remand for further consideration of the specific allegations in defendant's second petition that his limited ability to speak English at the time of his plea and the failure to provide an interpreter at all critical stages of the proceedings rendered his plea neither knowing nor voluntary.

In 1993, defendant pled guilty to two counts of arson for hire and was sentenced to concurrent twenty-year terms of imprisonment with ten-year periods of parole ineligibility. In our earlier opinion, we directed the judge to consider the assertion contained in the second petition for post-conviction relief that defendant did not understand English at the time of the plea and that he required the services of an interpreter. An evidentiary hearing was conducted on August 2, 2005, at which defendant and two others testified about his ability to speak English at or about the time of his plea.

Defendant testified with the assistance of an interpreter that he came to the United States in 1981 and did not speak English at that time. He also testified that his English did not improve between 1981 and 1993. He explained that he was able to conduct his business in Arabic and was able to employ an accountant who also spoke Arabic. Joseph Hovsepian testified that he met defendant in the early 1990s. He conducted business with defendant in Arabic because "his English was not appropriate. He just knew a few words." He also noted that his fluency has improved over the years. Elias Rached testified that he met defendant in 1992 at a restaurant defendant operated. He stated that defendant's English was very limited at that time.

At the conclusion of the hearing, the trial judge denied the petition once again. In a statement of reasons appended to the November 2, 2005 order, the judge held defendant's claim that he did not enter a voluntary or knowing plea due to his inability to understand English was procedurally barred because defendant had not raised this claim in prior proceedings and that the claim was time barred.

In his oral opinion, the judge found that the claim was frivolous and fraudulent. The judge cited defendant's testimony in 2001 at the evidentiary hearing conducted on his first petition for post-conviction relief at which defendant was not assisted by an interpreter. The judge also referred to the August 2005 evidentiary hearing in which defendant responded to questions in English without utilizing the services of the interpreter. The judge also referred to his knowledge of the judge who presided at the 1993 plea and opined that he was sure that the judge would not have accepted the plea if there was any concern about defendant's fluency.

We acknowledge that the transcripts of the 2001 and 2005 evidentiary hearings demonstrate that defendant was sufficiently fluent in the English language and thus could testify in a legal proceeding without the assistance of an interpreter. Defendant's ability to speak English in 2001 and 2005, however, does not address the central issue in this case, which is defendant's ability to speak and understand the language without the assistance of an interpreter in 1993. That question has still not been addressed, and it must be addressed to fulfill the mandate.

The trial judge also held that this claim is procedurally barred. Our prior opinion did not preclude the invocation of any applicable procedural bar. We note, however, that enforcement of a procedural bar would result in a fundamental injustice if defendant can demonstrate that his understanding of the language was so limited at the time of the plea that he required the services of an interpreter. See State v. Preciose, 129 N.J. 451, 474 (1992) ("procedural rules 'are not an end unto themselves, but a means of serving the ends of justice.'").

Defendant requests that this matter be assigned to another judge. We need not address that issue because the judge who presided at the August 2005 hearing no longer sits in Passaic County and this matter will be remanded to that vicinage.

Reversed and remanded for further proceedings consistent with this opinion.

 

(continued)

(continued)

5

A-0416-05T1

June 29, 2006