STATE OF NEW JERSEY v. USAMA ZAGHLOL

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

USAMA ZAGHLOL, a/k/a USAMA H. MOSTAFA,

a/k/a USAMA MOUSTAFA, a/k/a USAMA M. ZAGHLOL,

a/k/a MOSTAFA ZAGHLOL, a/k/a USAMA HOSNEY,

a/k/a MUSTAFA ZAGHLOL,

Defendant-Appellant.

________________________________________________

September 20, 2013

Submitted September 9, 2013 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-12-2167.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried to a jury, defendant Usama Zaghlol was convicted of third-degree perjury, N.J.S.A.2C:28-1, and fourth-degree false swearing, N.J.S.A.2C:28-2. Defendant was sentenced to a four-year suspended prison term. He appeals from the January 4, 2012 judgment of conviction, raising the following contentions for our consideration:

POINT ONE

THE STATE DID NOT PROVIDE A SUFFICIENT EVIDENTIAL FOUNDATION FOR THE FALSE STATEMENTS AS ALLEGED IN THE INDICTMENT WHERE NONE OF ITS WITNESSES CORROBORATED THE RELEVANT FACTS.

POINT TWO

THE TRIAL PROSECUTOR'S LACK OF CANDOR TO BOTH THE TRIAL COURT AND APPELLATE DIVISION WARRANTS DISMISSAL OF ITS INDICTMENT AGAINST THE DEFENDANT FOR PERJURY AND FALSE SWEARING.

POINT THREE

THE TRIAL COURT'S FAILURE TO IMMEDIATELY CURE THE PROSECUTOR'S REMARKS IN HER CLOSING ARGUMENT UNFAIRLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

Our review of the record convinces us that these arguments are not persuasive. Accordingly we affirm.

I.

The 2009 Trial

In December 2009, defendant was charged under Indictment Number 10-01-0041 with aggravated sexual assault, criminal sexual contact, endangering the welfare of a child, and related charges. The State alleged that defendant had sexually assaulted three of his stepdaughters in their Jersey City home between 1999-2007.

During trial, defendant testified that he did not live at the Jersey City home before 2001. Specifically, defendant testified that he married his wife on October 24, 2001, and he did not move into the Jersey City home until after his marriage. While defendant did not "recall the exact date" he first moved into the Jersey City home, he stated "it must have been toward the end of 2001," and he "started to fully live there as of 2002." Defendant also testified that he did not live in the basement apartment of the house prior to 2001, as no basement apartment existed.

The 2009 trial resulted in a mistrial due to a hung jury, and the charges against defendant were dismissed after his subsequent conviction for perjury and false swearing in the present case.

The 2011 Trial

On November 17, 2010, a Hudson County Grand Jury returned Indictment Number 10-12-2167, charging defendant with third-degree perjury, N.J.S.A.2C:28-1, and fourth-degree false swearing, N.J.S.A.2C:28-2. The charges arose from defendant s testimony in the 2009 trial.

Before trial, the State moved to admit two statements made by defendant to two witnesses, Greg Zanko (Zanko), a State investigator, and William Joyce (Joyce), an Immigration and Customs Enforcement agent.

The trial court held a hearing pursuant to N.J.R.E.104 to determine the admissibility of that testimony. At the hearing, Zanko testified that on January 7, 2008, he interviewed defendant to determine whether defendant qualified for appointment of a public defender. During the interview, defendant stated he had lived at the Jersey City home for the past eleven years. Defendant moved to exclude Zanko's testimony based on attorney-client privilege. The trial court found that the privilege applied, and granted defendant's motion to exclude Zanko's testimony. Joyce, who took a statement from defendant in 2004 wherein he claimed he lived at the Jersey City home for eight or nine years, was permitted to testify at trial.

After the hearing, the State filed an interlocutory appeal, claiming it could not proceed to trial without Zanko's testimony. We denied the State's motion for leave to appeal.

At trial, the State alleged that defendant testified falsely at his 2009 trial regarding his place of residence as he resided at the Jersey City home from 1996 to 2007. The State presented the testimony of Ramadan Abdalla (Abdalla) who purchased the Jersey City home in May 1990, and lived there with his wife and family. Abdalla testified that defendant began living in the basement apartment in February 1996. According to Abdalla, defendant paid him $250 in cash every month for rent, until Abdalla moved out on April 13, 1999, after his wife initiated divorce proceedings. Defendant had no written rental agreement with Abdalla.

After Joyce testified, defendant's former attorney, Megan Tuohey-Kay, confirmed that the interview with Joyce was in English, was understood by defendant, she reviewed the transcript with defendant, and defendant signed the transcript.

After the State rested, defendant moved for a judgment of acquittal pursuant to Rule3:18-1. The trial court denied defendant s motion. Defendant did not testify and called no witnesses.

II.

A.

Defendant challenges the trial judge's denial of his Rule3:18-1 motion, alleging "the State presented no credible evidence showing that the defendant moved into [the Jersey City home] before 2002 or actually lived in a basement apartment." We disagree.

Under Rule3:18-1, at the close of the State's case or after all evidence has been presented, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." Id. In considering such motion, the trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, a "reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J.454, 458-59 (1967).

On appeal, the appellate court will apply the same standard as the trial court to decide if the trial judge should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964); accord State v. Spivey, 179 N.J. 229, 236 (2004).

In order for defendant to be convicted of third-degree perjury, the State must prove beyond a reasonable doubt that, "in any official proceeding he ma[de] a false statement under oath or equivalent affirmation, or sw[ore] or affirm[ed] the truth of a statement previously made, when the statement [was] material and he [did] not believe it to be true." N.J.S.A. 2C:28-1(a). Under N.J.S.A. 2C:28-2, false swearing in the fourth-degree requires proof of the same elements as perjury, except for materiality.

It is not disputed that defendant's statements were made under oath and in an official proceeding. Defendant argues that the State failed to prove that his statements at the 2009 trial were false and claims that Abdalla's testimony, without more, is insufficient to establish proof that defendant in fact lived in the basement apartment before 2002.

Abdalla's testimony clearly contradicts defendant's testimony in the 2009 trial that he did not move into the Jersey City home prior to 2001. Abdalla's testimony established the following: (1) Abdalla owned, and occupied, the Jersey City home from May 1990 until he moved out on April 13, 1999; (2) the basement was converted into an apartment, with a separate entrance, full bathroom, and partial kitchen; (3) defendant began living in the apartment in February of 1996; (4) defendant paid Abdalla monthly rent; and (5) defendant lived there at least until Abdalla moved out. Based on this testimony, a reasonable jury, believing the testimony of the State's witnesses, could have found defendant guilty beyond a reasonable doubt. See State v. Samuels, 189 N.J. 236, 244 (2007).

The fact that a rental agreement and rent receipts were not produced is not dispositive. Abdalla's testimony alone, if believed by the jury, proves that defendant rented a basement apartment from Abdalla and gave untruthful testimony during the 2009 proceeding. The State also called Joyce, whose testimony that defendant lived in the house from approximately 1995-1996, until, at least, November 15, 2004, corroborates Abdalla.

Defendant claims that Joyce and Tuohey-Kay, "acknowledged their lack of knowledge regarding these pertinent facts." The State, however, did not offer either witness for the purpose of establishing defendant's residence from their personal knowledge. Rather, the testimony of both witnesses was based on defendant's sworn statement regarding where he lived.

Finally, defendant argues that the State failed to show that defendant's false statements were material to the prior proceeding. Under N.J.S.A. 2C:28-1, perjury requires the false statement to be material. "Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding or the disposition of the matter." N.J.S.A. 2C:28-1(b). If the false statements pertain to "collateral issues, the materiality requirement may be met by testimony relating to a collateral matter which, if believed, has the capacity to affect the weight or force of the evidence bearing on an ultimate issue and thus has the capacity to influence the tribunal hearing the judicial proceeding." State v. Neal, 361 N.J. Super. 522, 533 (2003).

Here, the State produced sufficient evidence regarding the materiality of defendant's statements in the 2009 proceeding. The State presented the testimony of Lieutenant Honey Spirito, who testified that the acts charged in the 2009 case were alleged to have occurred between the years of 1999-2007, at the Jersey City home. Defendant claimed he did not reside there during the time alleged in the indictment. Therefore, defendant's residence in the Jersey City home during the time in question was clearly material to the charges.

The State met its burden of presenting evidence sufficient to allow the jury to find that defendant was guilty, beyond a reasonable doubt, of both perjury and false swearing.

B.

Defendant next argues the assistant prosecutor "was less than candid" to both the trial court and to the Appellate Division. Defendant claims the prosecutor overstated the importance of its proposed witness, Zanko, to the trial court, and before us on the State's emergent appeal, when she allegedly represented that Zanko's testimony, "if excluded, would preclude the prosecution of the defendant . . . ." Defendant failed to provide a copy of the State's emergent appeal in the record on appeal and we are unable to determine what representations the State made.

However, the trial court excluded Zanko's testimony, and, even if we accept the representation that the State exaggerated the importance of his testimony, defendant suffered no prejudice as a result. After we denied leave to appeal, the State decided to proceed in the absence of Zanko's testimony:

We have three main witnesses that we were coming in to prove the perjury false statement charges. One of them was Mr. Zenko (phonetic). Without him, obviously the case - - the state does not want to proceed. However, now with the denial of the Appellate Division, our hands are tied and we are going to go forward.

Based on the foregoing, we reject defendant's argument that the indictment should have been dismissed.

C.

Finally, defendant argues the prosecutor's remarks

during her closing argument were unduly prejudicial, and deprived him of his right to a fair trial. During her summation, the prosecutor made the following argument to the jury:

[W]hen [defendant] testified that he didn't move into [the Jersey City home] until 2001 or 2002, he was saying I couldn't have committed any of the crimes that I'm accused of committing because I didn't even live there when the allegations - - when the criminal activity allegedly began.

Ladies and Gentlemen, if that statement were to be believed, then the accuser could not be. Because both of them could not be right.

Defendant objected and an inaudible side bar followed. After the sidebar, the prosecutor stated: "if the defendant was telling the truth about when he moved into [the Jersey City home], either he would be believed or the accuser - - meaning the accuser could not be believed." Defendant asked to approach and another inaudible side bar discussion took place. After this sidebar, the prosecutor continued: "[e]ither the defendant was living at [the Jersey City home] in 1999 or he wasn't. Either he was committing the crimes at [the Jersey City home] as of 1999 or he was not."

Prosecutorial misconduct, such as improper remarks in

summation, can be a ground for reversal only if the misconduct

"was so egregious that it deprived the defendant of a fair

trial." State v. Frost, 158 N.J.76, 83 (1999); State v. Loftin, 146 N.J.295, 386 (1996); State v. Ramseur, 106 N.J.123, 322 (1987). In order to justify a reversal on appeal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J.515, 575 (1999) (internal quotation marks omitted) (citing State v. Roach, 146 N.J.208, 219 cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). See alsoState v. Smith, 167 N.J.158, 181-82 (2001) (internal quotation marks omitted).

In reviewing allegedly improper remarks by the prosecutor, we must consider: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J. at 182; Timmendequas, supra, 161 N.J. at 575; State v. Marshall, 123 N.J. 1, 153 (1991).

While "[w]e afford prosecutors considerable leeway in closing arguments . . . their comments [must] reasonably relate[] to the scope of the evidence presented." Timmendequas, supra, 161 N.J. at 587.

Defendant maintains the prosecutor was attempting to "link the defendant's statements with the credibility of his accuser in [the 2007 trial]." The State argues the prosecutor was merely arguing that defendant's false statements were relevant and material to the State's case in the 2009 trial. There was a prompt objection and, after the second sidebar, the prosecutor abandoned the argument.

We are satisfied the cumulative effect of the prosecutors statements during summation did not deprive defendant of his right to a fair trial. SeeState v. Rose, 112 N.J.454, 523 (1988).

Defendant also claims the trial court did not immediately cure the prosecutor's error. However, the trial court gave the jury several curative instructions. After summations, the judge told the jury "[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence." The judge went on to instruct that "[a]ny comments by counsel are not controlling." "You will only consider such facts which in your judgment have been proven by the testimony of witnesses or from exhibits admitted into evidence by the court."

Finally, the judge gave this limiting instruction regarding the 2009 case:

You have heard information that the defendant was charged with committing crimes at [the Jersey City home] in Jersey City, New Jersey from 1999 to 2007 when he was alleged to have lived there. You are not to speculate as to the nature of these charges nor are you to consider them in your deliberation in this matter.

In support of his argument that the jury was influenced by the prosecutor's remarks, defendant cites the jury's question to the court during its deliberation. The jury asked: "Was he convicted of the crime in 2009?" The judge responded by repeating the prior limiting instruction. Defendant claims that the judge's response to the jury question was inadequate. We note that the judge previously conferenced her proposed limiting instructions with both parties, and after instructing the jury, she asked both counsel, "[i]s that satisfactory thus far?" Both responded yes, and neither party objected to the proposed instructions. We reject defendant's argument that the prosecutor's remarks in closing deprived him of a fair trial.