STATE OF NEW JERSEY v. HANIF ABDULLAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5236-05T45236-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HANIF ABDULLAH,

Defendant-Appellant.

__________________________________

 

Submitted November 7, 2007 - Decided

Before Judges Coburn and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 05-02-0289.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Tabakman,

Designated Counsel, of counsel and on

the brief).

Theodore F.L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant County

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hanif Abdullah appeals from a final judgment of conviction and sentence. A jury found defendant guilty of contempt, N.J.S.A. 2C:29-9a. Specifically, the jury concluded that defendant purposely or knowingly disobeyed a judicial order directing him to testify. Because the defendant was not ordered to testify, we reverse.

The State alleged that defendant committed the crime of contempt when he was called before the court as a witness on behalf of the State in a prosecution against Brian Wilson and William Parker. The judge presiding over the Wilson-Parker trial conducted a hearing pursuant to N.J.R.E. 104 on defendant's request to invoke his right against self-incrimination. Based on a colloquy between the judge and defendant during that hearing, the grand jurors charged defendant with contempt.

The State's evidence at this trial was limited to the following passage read from the transcript of the N.J.R.E. 104 hearing held during the Wilson-Parker trial.

THE COURT: If I were to indicate to you that I did not feel, based on what I know at this point, that you have a right to assert your Fifth Amendment rights and that, therefore, I would be ordering you to testify in this case, would you testify or would you remain silent?

THE WITNESS: I wouldn't testify.

THE COURT: You would not testify at all?

THE WITNESS: No.

THE COURT: Is what you're saying, in other words, if the [p]rosecutor asked you questions and if these gentlemen asked you questions, if I try to put you under oath, you would not take an oath or affirmation and you would not say a word in front of the jury, even if I tell you that you have no Fifth Amendment right to do that. Is that correct?

THE WITNESS: No, I don't wish to cooperate.

THE COURT: Okay. But the fact is, in our law, if you don't have a Fifth Amendment right not to testify, then you're obligated to testify. You're obligated to come into this court, or obligated to either take an oath or affirm and you're obligated to give testimony whether you want to or not. You're telling me you will not do that[?]

THE WITNESS: I don't wish to cooperate.

After presenting the foregoing evidence, the State rested.

Defendant moved for a judgment of acquittal based on insufficiency of the evidence pursuant to Rule 3:18-1. The trial court denied the motion.

A motion for judgment of acquittal must be granted if the evidence and reasonable inferences, viewed in the light most favorable to the State, are inadequate to permit a reasonable jury to find each element of the crime beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); State v. Spivey, 179 N.J. 229, 236 (2004). In order to establish guilt of contempt by disobedience of a court order the State must show that the defendant "purposely or knowingly disobey[ed] a judicial

order . . . ." N.J.S.A. 2C:29-9a; State v. White, 248 N.J. Super. 515, 522 (App. Div. 1991).

There must be an order of sufficient specificity to permit a finding of a purposeful or knowing violation. See United States v. Kozel, 908 F.2d 205, 208 (7th Cir. 1990) (noting the need for a lawful, definite, and specific court order); United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (construing federal law to require proof "(1) that the court entered a lawful order of reasonable specificity; (2) the order was violated; and (3) the violation was willful") (citations omitted). In the absence of a specific and direct order compelling conduct, courts have found the evidence inadequate to support a conviction for contempt. For example, where the contempt was based on the defendant's failure to appear and the court's order did not expressly require an appearance on that date, the conviction was reversed. In re Betts, 927 F.2d 983, 986 (7th Cir. 1991). Similarly, where one judge gave an "oral order" directing an attorney "to stay out of [the jury room] unless you get prior permission" and the attorney was subsequently found sleeping in another judge's jury room during a recess, the court concluded that the order was too "vague and overbroad" to support a conviction of criminal contempt. United States v. O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990).

We cannot conclude that the colloquy between the defendant and the judge presiding over the Wilson-Parker trial is sufficient to support a conviction for contempt. The judge did not give and defendant did not disobey an order to testify. The State presented evidence of defendant's response to a hypothetical question: "If I were to indicate to you that I did not feel, based on what I know at this point, that you have a right to assert your Fifth Amendment rights and . . . I would be ordering you to testify in this case, would you testify or would you remain silent?" The State also presented evidence that the defendant said he would not "wish to cooperate," when the judge gave defendant direction about his obligations under the law and asked what he would do if called as a witness and told he had no right to remain silent. Defendant was never given a judicial order.

In another context, the Supreme Court has noted, "one can never tell when a witness may decide to answer questions, even one who has indicated a contrary intent . . . ." State v. Jamison, 64 N.J. 363, 378-79 (1974) (discussing need to have witness invoke his or her privilege of self-incrimination). A conviction for contempt must rest on evidence sufficient to permit a jury to find purposeful or knowing disobedience of a court order. It cannot rest on speculation about whether a defendant would have disobeyed an order to testify if one had been given.

We conclude that defendant was entitled to entry of a judgment of acquittal at the close of the State's case. Accordingly, it is not necessary to address the other issues he raises on appeal.

Reversed.

 

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A-5236-05T4

December 5, 2007