STATE OF NEW JERSEY v. AMJAD ABUJUDEH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3908-03T43908-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMJAD ABUJUDEH,

Defendant-Appellant.

 

Submitted December 21, 2005 - Decided January 10, 2006

Before Judges Conley, Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 00-11-3212-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Karen Fiorelli, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant Amjad Abujudeh appeals from a final judgment of conviction for second-degree arson, N.J.S.A. 2C:17-1a(2). The court imposed a seven-year term, consecutive to a prison term defendant was serving for an unrelated offense. On appeal, defendant raises the following issues:

POINT I

THE MOTION COURT REVERSIBLY ERRED IN RULING THAT THE PRIOR INCONSISTENT STATEMENT OF AMANDA JEFFERSON WAS SUFFICIENTLY RELIABLE TO BE ADMITTED AT TRIAL NOTWITHSTANDING HER TESTIMONY THAT SUCH STATEMENT WAS TAKEN UNDER THREATS AND COERCION (U.S. Const. Amends 6,14; N.J. Const. (1947) Art. I Para. 7).

POINT II

THE TRIAL COURT'S RULING TO ALLOW INTO THE RECORD THE PROSECUTOR'S QUESTION REGARDING WHETHER ABUJUDEH HAD GOTTEN AMMANDA JEFFERSON PREGNANT SEVERAL TIMES AND HER ANSWER SHOULD HAVE RESULTED IN A MISTRIAL BECAUSE OF THE EXTREME PREJUDICE AND MANIFEST INJUSTICE TO ABUJUDEH.

(U.S. Const. Amends 6,14; N.J. Const. (1947) Art. I Para. 7).

POINT III

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO GRANT ABUJUDEH'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO DEMONSTRATE SUFFICIENT EVIDENCE ON ALL ELEMENTS OF THE CRIME TO WARRANT A CONVICTION FOR SECOND DEGREE ARSON.

(U.S. Const. Amends 4,6,14; N.J. Const. (1947) Art. I Para. 7).

POINT IV

ABUJUDEH'S SENTENCE WAS EXCESSIVE AND ILLEGAL.

We affirm defendant's judgment of conviction but remand for resentencing in light of State v. Natale, 184 N.J. 458 (2005).

The trial testimony reveals that on February 1, 2000, Charles Weiss of the Irvington Fire Department responded to a non-emergent call at 219 21st Street in Irvington (the Building). The three-story wood structure at that address consisted of a grocery store on the first level with apartments on the upper floors. The Building was ordered closed down and the residents relocated. It was subsequently boarded up, except for the first-floor store area. Hasheem Abujudeh, defendant's father, was the Building's owner.

At 2:00 a.m., on August 1, 2000, Karen Wilson, who resided next door to the Building, saw defendant from her balcony. He was wearing a black garbage bag and carrying what she thought to be a radio as he entered the Building. She heard a loud boom that sounded like someone kicked over a stove in an empty room. She then went to a store with her friend and upon returning ten minutes later observed that the Building was on fire. Michael Wright, Wilson's stepfather, also heard noise from the Building and saw a person with a flashlight on the third floor. He then observed flames coming from that floor.

Residents in the area were evacuated. The Building suffered extensive fire damage. A total of six engine companies and three ladder companies responded with a total of thirty-six firefighters. Four firemen were injured fighting the blaze.

Later that day, Detective Caminiti of the Essex County Sheriff's department arrived at the Building with his accelerant detection dog, trained to recognize ignitable fluids. The dog "hit" on several places where ignitable fluid was present. Based on his observations and the response of the dog, the detective opined that the fire was intentionally set with an accelerant and originated on the third floor.

The police also visited the Exxon station in Montclair. The attendant produced receipts evidencing that a gasoline can was rented at 2:39 a.m. on August 1. The attendant said a man rented it with a credit card and returned it the same night. Two different types of gasoline were indicated on the slip. The attendant could not read the name on the credit card slip.

On the date the Building burned, Amanda Jefferson, age fifteen, was defendant's girlfriend. On July 31, 2000 she was at her home with defendant until 8:00 p.m.; thereafter, they went to defendant's father's home in Montclair where they remained until the police found them there the following morning. At the police station, Jefferson gave a statement to Officer Holt Walker that implicated defendant as having committed the arson. That statement was admitted into evidence at trial as a prior inconsistent statement.

In her statement, Jefferson told police that she went to Montclair with defendant in the early morning hours of August 1. The previous day, defendant told her he was going to burn the Building down so his father could recover the insurance money. Defendant stopped at a gas station to purchase $5 worth of gasoline in a gasoline container. He then drove to his father's building and parked the car on 22nd Street. Defendant told Jefferson to stay in the car; he retrieved the gasoline container he rented, and left for twenty minutes before returning to the car. Defendant wore a black plastic bag as a raincoat.

As they drove away, Jefferson saw flames coming from the Building's third-floor window. They returned to the gas station, which was located around the corner from defendant's house in Montclair, and returned the gasoline container. At defendant's house, he changed his clothes, putting the clothes he had on in the washing machine. When asked whether she wished to add anything to her statement, she stated: "Yes, I forgot on the way back from [defendant] setting his father's building on fire, he threw a black plastic bag out the window. He said it smelled like gas. It was evidence, so he threw it out."

The following facts are taken from the Gross hearing, which was conducted to determine the admissibility of Jefferson's statement. At 6:30 p.m., Officer Walker took Jefferson's statement after obtaining the permission of the child's mother, Davera Bishop. Jefferson was not considered a suspect at the time and was not in handcuffs. Jefferson agreed to an interview and to make a formal statement. Walker issued Jefferson her Miranda warnings. Both Jefferson's mother and grandmother were present while she spoke with Officer Walker. Before taking her statement, the officer interviewed her for approximately thirty to forty-five minutes. She had tears in her eyes and spoke in a low voice. She was precise with her answers and did not seem confused while speaking with him.

At the Gross hearing, Jefferson was uncooperative; she initially refused to answer questions. The judge instructed her mother that Jefferson had an obligation to answer the questions and if she refused he may hold her in contempt. After Jefferson spoke with her mother, the hearing proceeded. She testified she was not telling the truth when she gave her statement; "she made it all up."

Jefferson's mother testified that she and her daughter were in handcuffs at varying points during the day on August 1, 2000. On cross-examination, however, she admitted that her daughter never had handcuffs on. Officer Walker and Lieutenant Panico both denied that Jefferson or her mother were placed in handcuffs.

We first address whether the trial judge erred in admitting Jefferson's statement at trial. A prior inconsistent statement is admissible if it would have been admissible if made by the declarant while testifying and is contained in a sound recording or writing in circumstances establishing its reliability. N.J.R.E. 803(a)(1). Before the prior inconsistent statement is admitted as substantive evidence, the judge must determine whether the statement was reliable based upon a preponderance of the evidence standard. Gross, supra, 216 N.J. Super. at 110.

Whether a statement is deemed reliable depends on an evaluation of the surrounding circumstances, which include, but are not limited to:

1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement and (15) the presence or absence of corroborating evidence.

[Id. at 109-10.]

In the context of a bench trial, the factual findings of the trial judge, his assessments of credibility, and the judge's discretionary decisions are entitled to great deference. State v. Locurto, 157 N.J. 463, 474 (1999); Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (1994); see also Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974); In re Commitment of R.S., 339 N.J. Super. 507, 539-40 (App. Div. 2001) (when tried before judge rather than a jury, "[t]he court understands that it is the ultimate decision maker and must reach a conclusion based upon all of the relevant evidence"), aff'd, 173 N.J. 134 (2002).

Here, the judge made his reliability findings based on a number of factors. He found that Miranda rights were administered to Jefferson; both the witness and her mother were told they did not have to speak to the police. The judge also credited police testimony that the officers did not speak to Jefferson until her mother was present.

Jefferson's statement included a substantial number of details, both significant and insignificant, not the type that would be included in a story that was fabricated. The judge noted: "[Jefferson] was aware of stops by [defendant] to pick up gasoline on two different places before the incident in question and she was also aware of [defendant's] use of a plastic bag to hide the odor and his other efforts to protect himself following the arson from detection." The judge found that Jefferson could not have invented such a detailed account if were not true. He rejected her contention that she gave her initial statement to the police to get them to leave her alone; he found her statement did not contain the type of information that could have been "fed" to her because most the information was unknown to the officers at the time.

The judge recognized "some corroborating evidence provided by the State with regard to the gasoline receipts." Based on his analysis of the evidence presented at the hearing, the judge found Jefferson's statement "inherent[ly] believab[le,]" "credible," and admissible. Ample evidence in the record supports that conclusion.

Defendant contends on appeal that Officer Walker "conceded that Amanda Jefferson seemed confused in making her statement." Not so. Walker testified that Jefferson appeared a "little confused" when she was sitting alone in a room prior to his interview with her. In fact, he testified that at no time in his interaction with her did she appear confused; that her answers were precise.

Defendant also cites Bishop's testimony from the Gross hearing that she was in handcuffs at varying times on August 1, 2000. She also testified that when she entered the station, her daughter was in handcuffs. Nevertheless, on cross-examination she testified that her daughter never had handcuffs on, and Officer Walker and Lieutenant Panico both refuted that Jefferson or her mother was placed in handcuffs. The judge accepted the officers' testimony.

Defendant emphasizes Jefferson's trial testimony that she was not telling the truth when her statement was taken: she said "[the police] was harassing me, and they threatening me that they was going to lock my mother up, lock me up, put my little sister and brother to DYFS so I told them anything so they could get off my back." The judge, however, rejected this testimony; he believed the police officers.

Jefferson was not questioned until adult supervision arrived. She and her mother consented to the statement. Her mother remained present throughout the interview and her statement. Jefferson's reluctance to testify at the Gross hearing and trial, the reason she provided for her recantation of the statement, and her relationship to defendant, all contributed to making her recantation suspect. See State v. Hogan, 144 N.J. 216, 239 (1996) (generally, recantation testimony is considered exceedingly unreliable; the sincerity of a recantation is viewed with extreme suspicion), certif. denied, 149 N.J. 142 (1997). Her written statement contained a level of detail that indicates it was not fabricated. Other tangible evidence and witness testimony corroborate the statement, including the gasoline receipt and testimony of Wilson and Wright. We find no error by the court in rejecting Jefferson's trial testimony and accepting her earlier written statement.

Next, defendant claims the trial court erred by allowing the prosecutor to ask Jefferson whether she had been "pregnant a couple of times by [defendant], and permitting her answer that she had been pregnant by defendant "once." Defendant claims admission of this evidence warrants a mistrial. We disagree. We conclude that the evidence was both relevant and admissible.

"'Relevant evidence' means evidence having a tendency . . . to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Whether evidence is relevant "is tested by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). In that regard, "any party . . . may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." N.J.R.E. 607. Bias is an acceptable method to attack credibility. See State v. Silva, 131 N.J. 438, 444 (1993). It is a term used to describe the relationship between a party and a witness that might lead the witness to slant testimony for or against a party. State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996). Bias is always relevant. State v. Josephs, 174 N.J. 44, 127 (2002).

Here, the prosecutor asked Jefferson whether she was impregnated by defendant. Over objection, Jefferson responded that she was impregnated by him once. The trial judge overruled the objection because "it goes to credibility. In other words, . . . the relation of . . . the defendant and a witness -- especially when a witness recants on a statement, the issue of credibility is controlling." This question went to Jefferson's credibility by evidencing her potential bias in favor of defendant, with whom she had an intimate relationship.

This was a bench trial. The question and answer were both limited in scope. No follow-up question ensued. The judge stated that he would not be inflamed or unfairly prejudiced by the information. He did not find that the probative value was substantially outweighed by the risk of undue prejudice or that it could confuse or mislead him as the fact-finder. See N.J.R.E. 403. The evidence was admissible and no grounds existed for the court to order a mistrial. Defendant's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant next argues that the trial judge committed reversible error by failing to grant his motion for a judgment of acquittal. We are not persuaded.

On motion of a defendant for a judgment of acquittal, the trial judge must determine whether the evidence is insufficient to warrant a conviction. R. 3:18-1. If viewing the State's evidence in its entirety, giving the State the benefit of all reasonable inferences from that evidence, a reasonable jury could find defendant guilty of the charge, the trial court must deny the motion. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Palacio, 111 N.J. 543, 550 (1988); State v. Reyes, 50 N.J. 454, 458-89 (1967). The trial judge is not concerned with the worth, nature, or extent (beyond a scintilla) of the evidence, but only its existence, viewed most favorably to the State. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004); State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). In reviewing a motion for acquittal based on insufficiency of the evidence pursuant to Rule 3:18-1, we apply the same standard as binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); Reyes, supra, 50 N.J. at 459.

Defendant was charged with aggravated arson. The statute reads: "A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's: . . . [w]ith the purpose of destroying a building or structure of another." N.J.S.A. 2C:17-1a(2). While the State is not required to prove motive, evidence of a defendant's motive is applicable in proving why a defendant acted in such a way. See State v. Nance, 148 N.J. 376, 388 (1976) (motive of jealousy proper basis upon which the jury could conclude defendant did or did not intend to shoot victim).

Defendant cites State v. Mancine, 124 N.J. 232 (1991) for the proposition that a judgment of acquittal is warranted because a prior inconsistent statement is only sufficient to support a conviction if substantial evidence exists to corroborate the statement. Defendant's argument is misplaced. That case indicates that "[a] court need be convinced only that a statement can reliably be used to affix criminal responsibility corroborative evidence need not tack down each and every fact and allegation uttered in a prior inconsistent statement." Id. at 255. The Court held:

"[T]he substantive elements of a criminal charge may be proven through a prior inconsistent statement alone, provided that the statement was made under circumstances supporting its reliability and the defendant has the opportunity to cross-examine the declarant. For a statement that meets the requirements . . . [found] by a preponderance of evidence to be reliable, evidence directly or indirectly corroborative of the substantive facts is helpful but not necessary. A court should weigh substantive evidence found in a prior inconsistent statement on the same scale as any other evidence when determining whether sufficient evidence to support a guilty verdict exists."

[Id. at 256.]

Viewing the evidence most favorably to the State and giving the State all favorable inferences, the trial court properly denied defendant's motion for judgment of acquittal. Evidence supporting the verdict included Jefferson's sworn statement that defendant drove to the gas station late at night to obtain a gasoline container and $5 worth of gasoline; he drove to the Building and parked the car; Jefferson watched him put on a trash bag and take the gasoline can into the Building; and she saw flames emanate from the Building. Defendant had previously told her that he was going to burn down the Building for the insurance proceeds.

Testimony by Wilson and Wright corroborated portions of Jefferson's statement. Wilson saw defendant walk into the Building wearing a black trash bag carrying an item in his hands; shortly thereafter, she witnessed flames coming from the Building. Wright saw a light from a flashlight on the third floor of the Building; shortly thereafter he observed flames from that floor.

The State provided evidence that defendant had a motive to commit the crime to obtain insurance money for his father. At the time of the fire, defendant's father was no longer collecting rent from the Building because it had been shut down; his father was also almost two years behind on the real estate taxes. He did, in fact, file an insurance claim for $120,000. Thus, when this evidence is considered in its entirety, it was more than sufficient to support the verdict.

Finally, we turn to defendant's sentence. The judge balanced the aggravating and mitigating factors and found that the "aggravating factors substantially preponderate" and "while not sufficient to go over the presumption, certainly is sufficient to warrant a consecutive sentence to the sentence he is now serving." The judge then imposed the presumptive seven-year term for the second-degree offense, consecutive to a sentence defendant was serving at the time of conviction. Defendant claims his sentence was "manifestly excessive" and "illegal."

In light of State v. Natale, supra, 184 N.J. 458, the sentence must be remanded for reconsideration. There, to preserve the constitutionality of our sentencing scheme in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court eliminated presumptive terms. Id. at 487. Here, because the sentence was formulated with reference to the presumptive term, it must be reconsidered. We do not suggest what a proper sentence should be in this case, only that the judge must impose a sentence in light of Natale, supra, and State v. Abdullah, 184 N.J. 497 (2005). While we find no error in the imposition of a consecutive term in this case, see State v. Yarbough, 100 N.J. 627, 630, 643-44 (1985), the court may, in its discretion, revisit that issue on resentencing.

 
We affirm defendant's conviction and remand for resentencing. We do not retain jurisdiction.

State v. Gross, 216 N.J. Super. 98 (1987), aff'd, 121 N.J. 1 (1990).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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January 10, 2006