STATE OF NEW JERSEY v. BASHAR SABBAGH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0862-04T30862-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BASHAR SABBAGH,

Defendant-Appellant.

_______________________________

 

Submitted: October 25, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 02-12-2986-I.

Michael G. Paul, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant Bashar Sabbagh was convicted of third-degree attempt to cause significant bodily injury, N.J.S.A. 2C:12-1b(7), as a lesser-included offense of second-degree aggravated assault; third-degree aggravated assault with a deadly weapon, a motor vehicle, N.J.S.A. 2C:12-1b(2); and fourth-degree criminal mischief with a pecuniary loss in excess of $500, N.J.S.A. 2C:17-3a(1). Defendant was sentenced to three concurrent five-year terms of probation. On appeal, defendant asserts ineffective assistance of counsel by waiving the right to a jury trial and by failing to prepare for trial. He also claims the verdict is against the weight of the evidence. We affirm.

The case arose from covert surveillance of defendant by Frank Del Vecchio and David Couchman, private investigators employed by Kevin P. Carey Associates, Inc., which had been retained in connection with a disability policy upon which defendant was collecting. On the evening of May 2, 2002, the Mercedes sedan which defendant was driving and in which his wife Lucy Luengas was a passenger was followed by the two investigators, each in his own Saturn. Luengas testified that her husband drove past their destination and voiced his suspicion that they had been followed. Because it was dark and rainy, defendant inadvertently pulled into a dead-end street and stopped short. Luengas testified that the red car that was following them, which was Couchman's vehicle, rear-ended their automobile and then drove away. Luengas called the police on a cell phone, gave them Couchman's license plate number and described him as a short-haired young blonde man with glasses, who "looked like a skin head." Luengas thought the incident was racially motivated because she and her husband were Muslims, and they were concerned for their safety after September 11, 2001.

According to Luengas, after observing Couchman's vehicle in a residential driveway, defendant pulled in behind it, stood by the open door of his vehicle and demanded the identity and purpose of the driver. Luengas further testified the driver pulled out quickly, striking the front bumper of their car, and then continued through the grass. According to Luengas, almost immediately after defendant pulled out of the driveway, Del Vecchio's silver car, without its headlights on, came up and "kept ramming into the Mercedes from my side of the car, from the right side." Defendant instructed his wife to exit the car, wait there and call the police while he pursued the silver car to get its license number. When the police arrived she called defendant who indicated he did not get the license plate number because "[Del Vecchio] lost control and hit a tree." Defendant returned and they went to the police station. Defendant's car had damage in the back, along the side, and in the front headlight area. Defendant did not testify.

The investigators gave diametrically different versions of the events preceding the alleged assaults than Luengas. Couchman denied having made any contact with defendant's vehicle. When defendant turned into the dead-end street, Couchman conveyed to Del Vecchio by cell phone that the surveillance had been "busted," and upon Del Vecchio's orders, he quickly backed up and attempted to leave the area. According to Couchman, he pulled into a driveway, defendant pulled in behind him, flung the car door open, and walked "aggressively" towards him. He denied defendant spoke to him. Fearing defendant might be armed, Couchman put his automobile in reverse, turned the wheels sharply and drove across the grass. He communicated his distress to Del Vecchio, who was in the area, and remained on the cell phone with Del Vecchio, who was frantically yelling, "[h]e's hitting my car, he's hitting my car, he's running me off the road." Couchman phoned the police and followed them to headquarters.

Del Vecchio testified he witnessed Couchman driving across a lawn to get away from the defendant. While driving in pursuit of Couchman, Del Vecchio observed the Mercedes approaching his car through his rear-view door mirror. He made two right turns but defendant caught up with him again. According to Del Vecchio, the front right corner of the Mercedes "nosed into [his] driver's door," pushing Del Vecchio's car towards the curb. Two or three hits followed within seconds of each other. When defendant was about two car lengths in front of Del Vecchio, he stopped to let Luengas out of the car. On his way to a police station, while at the Grand Avenue intersection, Del Vecchio saw defendant's vehicle quickly approaching from behind. The investigator made a right turn onto Grand Avenue, and the Mercedes pulled alongside him and pushed his car off the road and it struck a telephone pole. Defendant stopped his automobile for a few seconds and then pulled away. Del Vecchio put his car in reverse and drove it across the street to a library parking lot, where he called the police. Two days later, Del Vecchio started feeling pain and was diagnosed with soft tissue damage. The damage to Del Vecchio's car totaled $6,142.46.

Detective David Bowman, an off-duty veteran police officer, testified he was traveling behind the Mercedes, which was following the Saturn. He observed the Mercedes cross over the double yellow lines, overtake the silver Saturn and make a hard motion to the right, strike the left front of the Saturn and force it off the road into a telephone pole. The Mercedes continued on. According to the eyewitness, Del Vecchio did not do anything other than try to maintain his lane. Bowman called the police and reported the accident.

Judge Sebastian Gaeta credited the testimony of the eyewitness and investigators, and disbelieved Luengas' version of the events. He found it "incredible that . . . Del Vecchio, driving a compact Saturn, would intentionally collide with the much larger Mercedes while driving without headlights on. Certainly Detective Bowman would have noticed that a car did not have its lights on." He concluded that

[t]he act of forcing Mr. Del Vecchio's vehicle off the road was not an accident, it was clearly intentional . . . Had the contact been accidental, defendant would have pulled to the left, or slowed down, not continue to stay alongside the smaller car, pushing it to the right until it left the roadway and collided with the telephone pole. Had defendant only wanted Mr. Del Vecchio to pull over and identify himself and explain his following defendant, there were other means available, including sounding his horn, flashing his headlights; not coming alongside and pushing him off the road.

The court found defendant guilty of third-degree attempt to cause significant bodily injury on Del Vecchio. The court also found defendant guilty of the other two offenses charged, third-degree aggravated assault with a deadly weapon and fourth-degree criminal mischief.

Our scope of review is limited to determining whether the findings by the trial judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole and giving due deference to the trier of fact who had the opportunity to hear and see the witnesses and have the "feel" of the case. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). From our review of the record we are satisfied that Judge Gaeta carefully scrutinized the testimony and evidence before him in making his factual findings and made and explained in detail his credibility assessments. The trial court's findings are amply supported by the record. Accordingly, we discern no basis to disturb them on appeal. Ibid. There was more than ample evidence to convict defendant of the charges. Despite Detective Bowman's erroneous recollection of the weather conditions as clear, duly noted by the trial judge, this impartial eyewitness had an excellent opportunity to observe defendant drive his Mercedes sedan into Del Vecchio's compact Saturn and force it off the roadway and into a telephone pole, resulting in injury to Del Vecchio and damage to his vehicle.

Defendant argues he was deprived of effective assistance of counsel when his attorney made a "spontaneous" motion for a bench trial on the day of trial based on an "unfounded allegation of discrimination" and did not know the procedural requirements for waiver of a jury trial. He further argues his counsel failed to prepare for trial, evidenced by his lack of knowledge of an audiotape of statements by defendant allegedly produced during discovery and of the extent of damage to Del Vecchio's automobile, as well as his failure to cross-examine Detective Bowman, a key witness for the State.

Although ineffective assistance of counsel claims generally are more appropriately raised in a collateral post-conviction relief proceeding "because such claims involve allegations and evidence that lie outside the trial record," we are satisfied there is a sufficient record to dispose of defendant's claim on the merits on direct appeal. State v. Johnson, 365 N.J. Super. 27, 34 (2003) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)), certif. denied, 179 N.J. 372 (2004). We conclude that none of the challenged conduct of defendant's trial counsel rises to the level of deficiency and prejudice necessary to sustain an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987).

Waiving a jury trial is not tantamount to a complete denial of representation; the two-prong test for ineffective assistance of counsel must still be met. Strickland, supra. Following defense counsel's explanation for the request, though not required by Rule 1:8-1, defendant noted on the record that he voluntarily waived a jury trial after being fully apprised of the consequences of his decision. There was nothing irrational about defendant, a Syrian who was being investigated for insurance fraud, waiving his right to a jury trial. Moreover, it could be concluded that this strategy worked because defendant was acquitted of the second-degree offense, which would have carried a jail term and a parole disqualifier.

The challenged audiotape involved a phone conversation between defendant and Kevin Carey where defendant allegedly asked Carey to drop the charges against him in return for him not filing charges against Carey and his employees. The State sought to play the tape to refresh Carey's recollection. Defense counsel did not remember receiving it, although the State claimed it had been provided in discovery. Defendant has failed to demonstrate that his counsel's unfamiliarity with the tape prejudiced him in any manner. Defense counsel was given the opportunity to hear the tape during a trial break. Despite being surprised by the tape, he sought its admission and cross-examined Carey on the contents of the tape.

Similarly, defendant's claim that his counsel did not know the dollar amount of damage to Del Vecchio's Saturn is not supported by the record. Defendant stipulated that the amount of damage was over $500, which created the jurisdictional element necessary to satisfy count three without establishing the exact amount. N.J.S.A. 2C: 17-3b(2). Additionally, the defense on appeal fails to demonstrate how this purported lack of knowledge adversely impacted on trial counsel's strategy, particularly given Judge Gaeta's denial of the State's motion to amend the indictment from fourth degree criminal mischief to third degree criminal mischief because of the extent of the damage. See N.J.S.A. 2C:17-3b(1).

Defendant's complaint of ineffective assistance resulting from the failure of his trial counsel to call witnesses other than Luengas is also without merit. Defendant fails to indicate who else should have been called as a witness, considering defendant chose not to testify, and the content of that person's testimony. Nor was there any deficiency by trial counsel in choosing not to cross-examine the eyewitness, Detective Bowman. Defendant asserts no basis to second-guess his trial counsel's strategy in leaving for summation the veteran police officer's failure to recollect where he had been prior to the accident and his faulty recollection of the weather, and insinuating that Detective Bowman might have been at a bar prior to witnessing the accident.

 
Affirmed.

The parties were united in a religious ceremony, but apparently no license was issued. Throughout the transcript, Luengas is inconsistently referred to as defendant's wife, common-law wife, fiancée and girlfriend. We will use the terms "wife" and "husband" in this opinion.

(continued)

(continued)

11

A-0862-04T3

November 4, 2005