STATE OF NEW JERSEY v. NASSIM AAD

NOT FOR PUBLICATION WITHOUT THE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.

NASSIM AAD, a/k/a MARCO DEL PIERO,

NASSIM L. AAD, NASSIM L. MAGEDAAD,

NASSIM McCARTHY, NASSIM LEBNAN

MAJED AAD,

Defendant-Appellant.

___________________________________

September 3, 2013

Submitted August 28, 2013 Decided

Before Judges Waugh and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-0949.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant Nassim Aad appeals his conviction for hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(b)(4). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On January 18, 2011, Jersey City Police Officer Marvin Ramos was dispatched to an apartment building on Jewett Avenue in Jersey City, where he spoke to Haarika KaKarla. She informed Ramos that her roommate, whom she identified as "Nassim," owed her money. After noticing abrasions on KaKarla's neck, Ramos questioned her about how she received them. She told him that Nassim had forced her down on the bed.

Ramos then arrested the male indicated by KaKarla, who was standing nearby. According to Ramos, when asked for his name and identifying information, the man responded that his name was Marco Del Piero. Ramos testified that the man gave him a social security number and date of birth, both of which turned out to be fictitious. The suspect was only identified as Aad after he had been fingerprinted.

Although Aad was initially charged with additional offenses, including sexual assault, he was subsequently indicted only for fourth-degree hindering. It appears from the record that, following Aad's arrest, KaKarla refused to seek a restraining order pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, and also informed the police that there had been no sexual assault.

The indictment was tried without a jury on April 24, 2012.1 Ramos testified as outlined above. Aad testified that he did not identify himself as Marco Del Piero, although he acknowledged that he had used the last name Del Piero as an alias when previously arrested in Newark. He further acknowledged that he had some concerns about his immigration status.

The trial judge found Aad guilty of the disorderly persons offense of hindering.2 He sentenced Aad to time served, seventy-six days, and probation for one year. This appeal followed.3

II.

Aad raises the following arguments on appeal:

POINT I: THE CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT DEPRIVED DEFENDANT OF THE PRESUMPTION OF INNOCENCE AND IGNORED THE REQUIREMENT THAT EACH ELEMENT OF THE OFFENSE MUST BE PROVEN BEYOND A REASONABLE DOUBT, WHEN THE COURT FAILED TO FIND THAT THE STATE PROVED THE CHARGE BEYOND A REASONABLE DOUBT. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PAR. 1). (Not Raised Below)

POINT II: THE CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT DID NOT APPLY THE CORRECT STANDARD FOR PURPOSEFUL CONDUCT. (Not Raised Below)

POINT III: THIS CASE SHOULD BE REMANDED TO CORRECT THE JUDGMENT OF CONVICTION WHICH ERRONEOUSLY STATES THAT DEFENDANT WAS CONVICTED OF A FOURTH-DEGREE CRIME. (Not Raised Below)

We are reviewing a guilty verdict following a bench trial. The Supreme Court has held that "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice." In re Return of Weapons to J.W.D., 149 N.J.108, 117 (1997) (citation omitted); see also Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super.531, 541 (App. Div. 1994) ("[I]n our review of the results of a bench trial the factual findings of the trial judge, his assessments of credibility, and the discretionary decisions he may have made are entitled to great deference." (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J.474, 484 (1974))).

As Aad correctly points out, the trial judge failed to articulate the burden of proof he applied in making his findings of fact. There can be no question that the applicable burden of proof in a criminal case is proof beyond a reasonable doubt. Had this been a jury trial and the judge failed to charge the jury on the correct standard of proof, we would, of course, be required to reverse the conviction. SeeState v. Medina, 147 N.J.43, 59-61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997). However, in the context of a criminal bench trial tried before a judge assigned to the Law Division, Criminal Part, we are satisfied that the failure to articulate the nature of the burden of proof, while quite unfortunate, is not fatal.

In addition to our presumption that a criminal trial judge knows and applies the appropriate standard of proof, our review of the record convinces us that the evidence overwhelmingly demonstrated Aad's guilt beyond a reasonable doubt. His denial that he gave the false information to Ramos was not in the least credible, given his admission that he had given the same false last name to the police during his arrest in Newark. The suggestion that he was joking during the prior incident in Newark, at a time when he had just been arrested and in light of his concerns about his immigration status, is simply untenable. Consequently, we accept the trial judge's finding that Aad gave false identifying information to Ramos as one made using the beyond-a-reasonable-doubt standard of proof.

We now turn to Aad's argument that the facts found by the trial judge did not support a finding of guilt under the statute. "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Pursuant to N.J.S.A. 2C:29-3(b)(4), "[a] person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense . . . , he: . . . (4) Gives false information to a law enforcement officer . . . ." The offense has three elements.4 The first two are not in question, in that Aad (1) had been arrested when he was asked to identify himself, so he knew he was likely to be charged with a criminal offense, and (2) he gave false identifying information to Ramos, as was found by the trial judge.

The issue raised on appeal concerns the third element, which is whether Aad acted with the requisite purpose. N.J.S.A. 2C:2-2(b)(1) provides that "[a] person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result," and further provides that "[w]ith purpose" has "the same meaning." The Model Jury Charge concerning N.J.S.A. 2C:29-3(b) provides as follows with respect to proof of purpose:

Purpose and knowledge are conditions of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said that (he/she) had a certain state of mind when (he/she) engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of (his/her) acts and (his/her) conduct, and from all (he/she) said and did at the particular time and place, and from all of the surrounding circumstances.

[Model Jury Charge (Criminal), "Hindering One's Own Apprehension or Prosecution" (2001).]

The trial judge found that Aad's "purpose could only be construed from his actions was to hinder the police in the investigation or prosecution of him at that time." That was a sufficient finding of purpose to satisfy the requirements of the statute, and also one amply supported by the evidence.

1 Prior to the trial, the State downgraded the charge to a disorderly persons offense to facilitate a bench trial. Aad consented.

2 The State concedes that the judgment of conviction (JOC) erroneously reflects a conviction for fourth-degree hindering. We remand for correction of the JOC.

3 As the State points out, the notice of appeal was filed by the Office of the Public Defender more than forty-five days after the conviction, but we accept it as if timely filed, seeing no actual prejudice to the State. R. 2:4-4.

4 See Model Jury Charge (Criminal), "Hindering One's Own Apprehension or Prosecution" (2001) ("Those elements are: 1.) that the defendant knew that (he/she) had been or was likely to be charged with [an offense]; 2.) that the defendant [gave false information to a law enforcement officer]; and 3.) that the defendant acted with purpose to hinder (his/her) own detention, apprehension, investigation, prosecution, or conviction.").