STATE OF NEW JERSEY v. AMGAD ZAKHARI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMGAD ZAKHARI,

Defendant-Appellant.

_______________________________

October 22, 2013

Submitted October 7, 2013 Decided

Before Judges Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-10-2009.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Joseph L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted following a bench trial of fourth-degree stalking under N.J.S.A. 2C:12-10b, and sentenced to two years of probation with random drug and alcohol testing, anger management counseling, and other conditions. The appropriate fees and penalties were also assessed. Defendant now appeals and raises the following arguments:

I. THE WARRANTLESS SEARCH AND SEIZURE OF THE MERCEDES BENZ AUTOMOBILE BY THE POLICE VIOLATED THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (Not Raised Below).

II. ADMISSION OF EVIDENCE THAT DEFENDANT WAS FOUND GUILTY IN MUNICIPAL COURT WAS ERROR.

III. THE ELICITATION OF INADMISSIBLE, IMPROPER AND PREJUDICIAL EVIDENCE BY THE PROSECUTOR CONSTITUTED MISCONDUCT WHICH DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

IV. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO PROVE DEFENDANT GUILTY OF STALKING BEYOND A REASONABLE DOUBT.

We have considered these arguments in light of the record and applicable law, and we affirm.

I.

We discern the facts from the record. Defendant and R.H. (Rose)1 met in 2005 and became engaged in the Spring of 2008. Although the engagement ended shortly thereafter, the two kept in contact to address some "unfinished business" pertaining to defendant's limousine company which had been listed in Rose's name, disposition of the engagement ring, and other issues.

In June 2008, defendant went to Rose's home, but she did not want to speak with him. At some point, after Rose had entered her vehicle, defendant grabbed the driver side window and the glass shattered. Rose reported the incident to the local police department, and a charge was brought against defendant for harassment. Defendant was tried in municipal court on the charge and was found guilty.

Defendant and Rose had a number of clashes thereafter, some of which gave rise to the issuance of temporary restraining orders, and others of which went unreported. At other times, however, the two saw each other socially and spoke on the phone, notwithstanding the break in their relationship.

In any event, Rose began to suspect that defendant was following her. He would send her text messages about clothes she was wearing, as well as her activities, and showed up occasionally at restaurants where she had gone to eat. In April 2009, Rose went to a shelter for domestic violence victims seeking advice about stalking issues, when she received a text from another of defendant's female friends warning her to be careful because defendant was watching her.

That same month, local police approached a black limousine parked in the area of Rose's residence and discovered defendant in the vehicle. Defendant was arrested on outstanding traffic warrants and served with a temporary restraining order Rose had obtained.

On May 18, 2009, Rose brought her car to a mechanic, who found a wired black box attached to the rear of her car. She then drove to the local police department, where an officer removed the box, believing it was a tracking device. A Sergeant in the Bergen County Prosecutor's Office later examined the device, confirmed it was a Global Positioning System (GPS) tracking unit, and disabled it. Records from the manufacturer of the unit showed that defendant had purchased it on July 18, 2008, and that it was billed to defendant's company in Staten Island.

On May 21, 2009, police obtained and executed a search warrant at defendant's home, where they discovered a GPS tracking device, a black plastic case for a GPS unit, CDs containing an application to load tracking device software onto a computer, four cell phones, a modem and a metal detector.

A blue Mercedes Benz was parked in defendant's driveway. Defendant told police it belonged to his girlfriend, and that he had driven her to her job in New York City, and he was using her car while she was at work. Defendant gave permission to the police to search the vehicle, and inside they discovered men's clothes, a laptop computer, a folder with Rose's name, a GPS unit, two CDs and an application to activate a GPS device with a change of registration to a "Jimmy Velasquez."

Later, a detective from the Bergen County Prosecutor's Office examined the laptop, which had a user account for "amgad" and had been loaded with files for a GPS software program. The tracking device logs showed the program was last run on May 18, 2009 the date the GPS device had been disabled after it was removed from Rose's car and revealed traces to locations Rose had been at on various dates.

Defendant was arrested and a Bergen County Grand Jury returned an indictment charging him with third-degree stalking, N.J.S.A. 2C:12-10c (count one); fourth-degree stalking, N.J.S.A. 2C:12-10b (count two); and fourth degree violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b (count three).

At trial, defendant testified that he bought the GPS equipment to monitor his limousine drivers and he denied even having possession of the tracking device in April 2009. He claimed he had given the device to Rose so she could sell it online. He denied stalking Rose.

The trial judge found that defendant purchased the tracking device in July 2008 and maintained control of it through May 2009. He concluded that defendant's testimony that other individuals had control of the device was "ludicrous" and "a bunch of smoke screens." The judge also found that defendant did not surrender possession of the GPS unit before May 2009 and that defendant's claim to the contrary was "nonsense." Further, the judge found defendant's testimony denying ownership of a post office box in Bayonne - where invoices for the GPS unit were sent - to be incredible. In fact, defendant had used that post office box as his home address in a suit against Rose over the engagement ring.

The judge determined that defendant purchased the tracking device to track Rose's whereabouts and to cause her to "fear for her safety or to cause emotional distress." The device was found on Rose's car, he added, and defendant did, indeed, track Rose with it. Rose was "scared" by the surveillance. The judge found defendant guilty of fourth-degree stalking on count two and not guilty on the other counts of the indictment. Defendant was thereafter sentenced to probation with conditions, as we noted earlier.

This appeal followed.

II.

We consider defendant's arguments in the order he has raised them in his brief. Defendant argues for the first time on appeal that the search of the Mercedes Benz automobile and the seizure of items in the car violated his "Fourth Amendment right against unreasonable searches and seizures." He asserts that the record is devoid of evidence that the search was undertaken with defendant's lawful consent.

We note initially that defendant never moved in the trial court to suppress the evidence obtained from the vehicle. Our court rules require that a motion to suppress evidence allegedly obtained as a result of an unlawful search and seizure be made prior to trial. R. 3:5-7(a); R. 3:10-2(a). Our court rules further provide that if a timely motion to suppress is not made, "the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." R. 3:5-7(f).

It also is well established that constitutional claims, including those arising under the Fourth Amendment, "may be waived unless properly and timely asserted." State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989). See also State v. Del Fino, 100 N.J. 154, 160-61 (1985), and State v. McKnight, 52 N.J. 35, 48 (1968).

Here, defendant relies on the trial record for his contention that the evidence was unlawfully obtained. But where, as here, a motion to suppress was not made in the trial court, we cannot be assured that the trial record contains all of the facts relevant to the contention that the officers did not get a valid consent to search the vehicle from defendant or that he understood he had a right to refuse to give such consent. Indeed, the State had no reason to present evidence to establish the validity of the consent because defendant never contested the admissibility of the evidence. In these circumstances, "[t] he State had the right to assume that the validity of the [search and seizure] was not in issue by virtue of defendant's failure to move to suppress." State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000). The State was not obliged to present evidence of the lawfulness of the search in the absence of a suppression motion. State v. Gora, 148 N.J. Super. 582, 592 (App. Div.), certif. denied, 74 N.J. 275 (1977).

We therefore conclude that, by failing to move before the trial court to suppress the evidence, defendant waived his right to assert that the evidence was seized unconstitutionally.2

Next, defendant argues that the State improperly elicited testimony that he had been convicted in municipal court for harassing Rose, and that such testimony was "grossly prejudicial" and was elicited through prosecutorial misconduct. This claim is without merit.

During her direct testimony, Rose did state that defendant was found guilty of harassment in municipal court. However, the prosecutor only asked Rose if there were a "trial" in municipal court pertaining to the incident when defendant stuck his hand into the window of Rose's car and the window shattered. The prosecutor asked the question because she believed defendant had pled guilty to breaking the window, and thus claimed it was an admission. Rose then replied, "It was a trial. He was found guilty of harassment." After counsel objected as to relevance given that it had not been a plea, the judge instructed the prosecutor to "move on."

This was clearly a situation where the witness during a bench trial blurted out something beyond what the question sought. The context of the statement makes it abundantly clear that the statement was harmless, in any event, and the judge disregarded it. Judges sitting as fact finders are well-equipped to separate inadmissible from admissible evidence and to only consider that evidence which is admissible. See State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999); In re Commitment of R.S., 339 N.J. Super. 507, 539-40 (App. Div. 2001), aff d o.b., 173 N.J. 134 (2002).

Finally, defendant claims there was insufficient evidence to support a finding that defendant was guilty of stalking beyond a reasonable doubt. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that Rose testified that defendant's actions in repeatedly using a GPS device to determine her location, and thereafter contacting her to describe her clothing and activities scared her. Further, N.J.S.A. 2C:12-10(a)(1) defines a "course of conduct" necessary to constitute "stalking" to include, among other things, "directly, indirectly, or . . . by any action, method or device, or means, following, monitoring, observing, surveilling . . . a person[.]" Here, the GPS device was placed on Rose's car and thus defendant's "conduct" was clearly "directed at" her. N.J.S.A. 2C:12-10(b).

1 We utilize a fictitious name to reference the victim identified in the indictment.

2 Although, as the State argues in its brief, there is much in the record supporting the claim that defendant validly consented to the search, we decline to address the issue for the reasons we have stated.