STATE OF NEW JERSEY v. ISLAM E. EL-GHOUL

NOT FOR PUBLICATION WITHOUT THE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.

ISLAM E. EL-GHOUL,

Defendant-Appellant.

__________________________________

December 17, 2015

Submitted October 5, 2015 Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1191.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal arises out of a robbery that occurred in June 2010. A jury found defendant Islam E. El-Ghoul guilty of second-degree robbery and simple assault, but acquitted him of third-degree aggravated assault. El-Ghoul now appeals his conviction and sentence. Although we reject the other points he raises on appeal, we agree that the trial court erred in denying his pretrial motion for a Wadehearing1to assess the identification procedures employed by the police. We therefore remand this matter for such a Wadehearing, reviewed under the appropriate Manson/Madison framework.2

I.

In July 2010, a Middlesex County grand jury returned Indictment No. 10-08-1191, charging Islam E. El-Ghoul and co-defendant, Shalik Spruill, with second-degree robbery, N.J.S.A.2C:15-1 (count one); and third-degree aggravated assault, N.J.S.A.2C:12-1(b)(7) (count two). A juvenile participant, D.A., was charged with robbery, aggravated assault and theft. D.A. was adjudicated in Family Court.

Before trial, El-Ghoul moved to suppress the victim's out-of-court identification. Following oral argument, the court denied the motion, and ruled that El-Ghoul failed to present sufficient evidence of suggestiveness to warrant a testimonial Wadehearing or suppression of the out-of-court identification.3

II.

Defendants were tried jointly in a two-day trial. The State presented the testimony of two law enforcement officers, the victim, J.R., and D.A. Defendants elected not to testify. According to the State's proofs, on June 5, 2010, at approximately 9:30 p.m., J.R. left his apartment in the London Terrace complex in Old Bridge to buy a telephone calling card. As he walked past the Quick Chek convenience store, three individuals, later identified as El-Ghoul, Spruill, and D.A., began following him. J.R. tried to evade the men by taking a shortcut between buildings, but they caught up and attacked him. J.R. fell to the ground and covered his face with his arms as he was beaten. His golden rosary beads, baseball cap, Nike brand sneakers, and wallet containing cash, identification, and a debit card were taken. He watched his attackers run back towards the Quick Chek parking lot area.

J.R. contacted the police at around 10:30 p.m. Old Bridge Police Officer Robert Mustacchio responded. He took information from J.R., noting the injuries to his face and eye. J.R. gave a description of El-Ghoul as a "tall Egyptian male" wearing a "blue, white and black button-down shirt and blue jeans." J.R. stated that he had seen El-Ghoul at the Quick Chek store a week earlier wearing the same shirt. He was "a hundred percent sure" that he had recognized El-Ghoul's face and said that he thought he could identify El-Ghoul as his attacker.

Mustacchio took J.R. in a patrol car to the Quick Chek. Mustacchio spoke to the clerk who recognized J.R.'s description of El-Ghoul as a man who "usually hangs out down by the pool." Mustacchio and J.R. then went to the pool area of the London Terrace apartments, and parked nearby. While waiting and observing, three or four individuals walked past the patrol car. After five or ten minutes, J.R. recognized El-Ghoul, then wearing a white T-shirt, walking down the street with two women. Mustacchio asked J.R. "is that the guy?" and he responded, "[y]es, that's him, I know him." Mustacchio noticed that El-Ghoul had a cut lip, "like he had been bleeding from his lip" and that he matched the physical description of a "[t]all Egyptian male." He approached El-Ghoul and arrested him.

D.A., who pled guilty to robbery in Family Court, testified for the State, as a condition of his plea. According to his testimony, he, Spruill, and El-Ghoul were hanging around the Quick Chek convenience store. He was angry over personal issues in his life and randomly decided to attack J.R. whom he saw walking nearby. When D.A. told Spruill that he was going to hit J.R., Spruill responded with "maybe like a nod, an agreement." El-Ghoul and Spruill followed D.A. as he pursued J.R. past the Quick Chek and down a road. When D.A. reached J.R., he punched him in the face and J.R. fell to the ground. Thereafter, while his back was turned away from J.R., "commotion ensued." D.A. claimed he did not know what happened after he struck J.R., and denied taking any property from J.R. He also denied seeing El-Ghoul or Spruill take anything from J.R.

Because D.A.'s testimony differed from his plea allocutionwith respect to his and defendants' participation in the robbery, the State confronted him with the transcript of his plea. D.A. acknowledged that during the plea hearing he answered affirmatively when his attorney asked him whether "you guys took some cash, baseball hat and sneakers," and "all of you participated in this robbery, everybody knew what was happening?" On cross-examination, D.A. maintained that the attack on J.R. was not planned as a robbery, and that he lied in his plea to lessen his criminal consequences.

During the charge conference, defendants and the State agreed with the court reading the model charge on in-court and out-of-court identification with certain amendments to pages one and four. Specifically, the court determined it would not read certain sections of paragraph seven addressing photo arrays and line-ups, stating "[n]one of that applies, the line-up, et cetera." El-Ghoul's counsel did not object to the court's proposed instruction, and he did not request the court to read the introductory sentence to paragraph seven. Neither defendant objected to any of the instructions that were read to the jury.

While deliberating, the jury asked the court to provide, among others, the definition for accomplice liability. After reviewing the question with counsel, the court re-read the entire charge on accomplice liability, without objection.

The jury acquitted El-Ghoul of aggravated assault, but found him guilty of the lesser-included offense of disorderly persons simple assault, N.J.S.A.2C:12-1(b), and second-degree robbery, N.J.S.A.2C:15-1(b). At the sentencing hearing, the court found aggravating factors three and nine, N.J.S.A.2C:44-1(a)(3) and (9), and mitigating factors six and seven, N.J.S.A. 2C:44-1(b)(6) and (7). The court rejected the State's request for aggravating factors one, six and eleven. After finding that the aggravating factors outweighed the mitigating factors, the court sentenced El-Ghoul to a five-year prison term subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2, on the robbery offense, and to a concurrent twelve-month term of incarceration on the simple assault disorderly persons offense. The court also imposed a three-year period of parole supervision, along with the appropriate fines and penalties.

In this appeal, El-Ghoul argues

POINT I

THE TRIAL COURT'S DECISION NOT TO GRANT A WADE HEARING WAS ERRONEOUS BECAUSE [APPELLANT] MADE A SUFFICIENT SHOWING OF IMPERMISSIBLE SUGGESTIVENESS AND THE COURT APPLIED THE WRONG ANALYSIS BASED ON A MISREADING OF CASE LAW.

POINT II

THE COURT'S FAILURE TO READ A CRITICAL PART OF THE MODEL JURY CHARGE ON WITNESS IDENTIFICATION TESTIMONY ALSO NECESSITATES REVERSAL. (Not Raised Below)

POINT III

THE ADMITTEDLY PERJURED PRIOR STATEMENT OF [APPELLANT'S] CO-DEFENDANT DID NOT PROVIDE A RATIONAL BASIS FOR THE TRIAL COURT TO CHARGE THE JURY ON ACCOMPLICE LIABILITY.

POINT IV

THE TRIAL COURT'S SENTENCING ANALYSIS WAS INCOMPLETE AND INADEQUATE, AND THE COURT FAILED TO FIND MITIGATING FACTORS WHICH WERE SUPPORTED BY THE RECORD.

In his reply brief, defendant raises these additional

points

POINT I

THE TRIAL COURT'S REFUSAL TO GRANT A WADEHEARING WAS ERRONEOUS UNDER PRE- AND POST-HENDERSONLAW.

POINT II

TRIAL COUNSEL IN FACT OBJECTED TO THE TRIAL COURT'S FAULTY IDENTIFICATION CHARGE. THE STATE'S INVITED-ERROR ARGUMENT SHOULD THEREFORE BE REJECTED.

POINT III

IN RESPONSE TO THE ARGUMENTS SET FORTH IN POINT VII OF THE STATE'S BRIEF, DEFENDANT RESPECTFULLY REFERS THIS COURT TO POINT III OF HIS OPENING BRIEF.

POINT IV

IN RESPONSE TO THE ARGUMENTS SET FORTH IN POINT VIII OF THE STATE'S BRIEF, DEFENDANT RESPECTFULLY REFERS THIS COURT TO POINT IV OF HIS OPENING BRIEF.

III.

A.

We first address El-Ghoul's challenge to the court's ruling on the out-of-court identification. El-Ghoul argues he was entitled to an evidentiary Wadehearing to determine whether the procedures used by police to obtain the identification were impermissibly suggestive.

We review the denial of a Wadehearing under the abuse-of-discretion standard. SeeState v. Ortiz, 203 N.J. Super.518, 522 (App. Div.), certif. denied, 102 N.J.335 (1985).

There is "no automatic entitlement" to a Wadeevidentiary hearing on out-of-court identifications. State v. Ruffin, 371 N.J. Super. 371, 390 (App. Div. 2004). To be entitled to a Wadehearing, a defendant "must make a showing of 'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." State v. Michaels, 136 N.J.299, 320 (1994) (quoting Watkins v. Sowders, 449 U.S. 341, 350, 101 S. Ct. 654, 659, 66 L. Ed. 2d 549, 577 (1981)).

The ultimate admissibility of the identification has long been determined under a well-settled procedure

[T]he Supreme Court's two-step analysis requires the court first to ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable. The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification.

[State v. Herrera, 187 N.J. 493, 503-04 (2006) (citing Madison, supra, 109 N.J. at 233).]

State v. Henderson, 208 N.J. 208 (2011),revised the Manson/Madisonframework, elaborating specific variables that a court must consider in making determinations of suggestiveness. Id.at 288-94. The Court expressly stated that the new rule of law would apply only to future cases, "thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 302. The revised jury charges became effective September 4, 2012. See Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (Revised 7/19/12, Effective 9/4/12).

In deciding the motion in this case, the court relied on the legal analysis set forth in Henderson. The judge noted that El-Ghoul presented "a number of estimated [sic] variables that may cause the victim's identification in this case to be unreliable" but concluded that such variables were merely supplemental under the Henderson burden of showing "evidence of suggestiveness based on system variables." The judge concluded that

Hendersonsaid before a Wadehearing can take place, defendant has the burden of showing some evidence of suggestiveness, and that the suggestiveness must be rooted in a system variable.

. . . .

Since no system variable . . . warranting a Wadehearing has been identified in this case, the Court cannot utilize the estimated variables suggested by the defendant to grant a Wadehearing here.

. . . .

Given that defendant in this matter has failed to meet the initial burden of showing some evidence of suggestiveness based on system variables, the motion for a testimonial hearing and suppression of the out of court identification is denied.

Since El-Ghoul's identification took place on June 5, 2010, the trial court judge improvidently and prematurely applied the Henderson analysis. The proper analysis for out-of-court identifications at that time was the Manson/Madisonframework. See, e.g., State v. Micelli, 215 N.J. 284, 287 (2013). Because the incorrect framework was applied, the incomplete record precludes a proper review for an abuse of discretion. While the trial judge addressed the factual circumstances of El-Ghoul's identification and distinguished it from the typical "show up" of a suspect in custody, the record is fundamentally limited by resting on the Henderson "system vs. estimator variable" terminology. Thus, we are unable to discern what conclusion the trial court might have reached as to one or both prongs of the Manson/Madison framework.

Given these circumstances, we are constrained to remand this matter to the trial court for the limited purpose of conducting a post-trial evidentiary hearing on the admissibility of the victim's identification of defendant, under a fair application of the Manson/Madison test.4 If, at the conclusion of the evidentiary hearing, the judge grants defendant's motion to suppress, the judgment of conviction, based in part on evidence admitted at trial regarding the out-of-court identification, must be vacated. If the motion is denied, the judgment of conviction and the sentence imposed is affirmed for the reasons that follow. Lastly, because the prior trial court judges have already rendered decisions on the admissibility of the out-of-court identification, out of an abundance of caution we direct that on remand the matter be assigned to a different judge. See id. at 295.

B.

El-Ghoul next contends for the first time that the court inexplicably omitted critical portions of the model charge for out-of-court identifications that instructed jurors how to evaluate eyewitness testimony. This contention lacks merit.

"This court has repeatedly held that portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Figueroa, 190 N.J.219, 246 (2007) (quoting State v. Wilbely, 63 N.J.420, 422 (1973)). "We have also made clear that '[n]o party is entitled to have the jury charged in his or her owns words; all that is necessary is that the charge as a whole be accurate.'" Id.at 248 (alternation in original) (quoting State v. Jordan, 147 N.J.409, 422 (1997)). Since no objection was made to the identification jury charge, the standard of review is plain error. R.2:10-2. Under that standard, we consider whether defendant's claim of error was "clearly capable of producing an unjust result." Ibid. El-Ghoul's arguments do not meet that standard.

The model jury charge provides that when instructing the jury on how to determine the reliability of identification testimony, "[i]f necessary or appropriate for purposes of clarity, the judge may comment on any evidence relevant to any of the following factors," then delineates factors one through ten. The court read those paragraphs, but skipped paragraph seven in its entirety. In doing so, the court failed to read that portion of paragraph seven that informed the jury to consider, "[t]he circumstances under which any out-of-court identification was made, and whether or not it was the product of a suggestive procedure, including everything done or said by law enforcement to the witness before, during, or after the identification process." Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2007).

As there was no objection, the court had no opportunity to correct the omission if necessary. SeeState v. Timmendequas, 161 N.J.515, 576 (1999) (citations omitted). If the court erred by failing to read that portion of the charge, we find that error harmless in light of the other portions of the identification charge, the full charge, and the facts put before the jury.

C.

In point three, El-Ghoul argues that the court had no basis to charge the jury on accomplice liability. In advancing this argument, El-Ghoul relies on the inconsistencies between D.A.'s plea allocution and his trial testimony. We conclude this claim lacks merit.

The court explained the State's contention that El-Ghoul was guilty of aggravated assault and robbery, or their lesser-included offenses, as either a principal or an accomplice. "When a defendant may be found guilty either as a principal actor or as an accomplice, the jury should be instructed about both possibilities." State v. Roach, 146 N.J. 208, 223 (1997). The judge may charge the jury on accomplice liability even if the indictment did not expressly allege accomplice liability as long as there is a rational basis in the evidence for accomplice liability. State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1985). The rational basis standard is a low threshold, requiring "more than a mere scintilla of evidence." State v. Harvey, 151 N.J. 117, 149 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000) (quoting State v. Mejia, 141 N.J. 475 (1995)) (internal quotation marks omitted).

The court included the charge on accomplice liability because of D.A.'s testimony, which elicited his former admission of participating in the robbery with El-Ghoul and Spruill. Though El-Ghoul contends that such a charge was improper because D.A.'s inconsistent testimony was the only basis for the charge, the record justifies the instruction. There was testimony that El-Ghoul was present during the pursuit of J.R., and "knew what was happening." D.A. testified that all three men followed J.R., and that he told Spruill that he was about to assault J.R., and Spruill "maybe" nodded or agreed. Moreover, El-Ghoul was found with an injured lip, supporting the inference that he took part in the assault. It was for the jury to decide which of D.A.'s statements, if any, were credible. This evidence, which the jury was free to accept or reject as substantive evidence or as part of determining credibility, exceeds the low threshold required for a "rational basis." We conclude that the jury was properly instructed on accomplice liability on this record.

D.

Lastly, we have no difficulty upholding El-Ghoul's sentence and rejecting his call for consideration of mitigating factors one, N.J.S.A. 2C:44-1(b)(1) and two, N.J.S.A. 2C:44-1(b)(2), and for a reduced sentence. "Appellate courts review sentencing determinations in accordance with a deferential standard. The reviewing court must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm a sentence, absent the following exceptions

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

The court noted that El-Ghoul had a juvenile adjudication for aggravated assault, a conditional discharge in municipal court as an adult, and that he expressed a willingness to pay restitution to the victim. The court found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), and mitigating factor six, N.J.S.A. 2C:44-1(b)(6), and seven, N.J.S.A. 2C:44-1(b)(7).

There is no basis for application of mitigating factors one and two. N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm); and -1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The jury found El-Ghoul guilty of a second-degree robbery, and simple assault. This demonstrates the jury's belief that El-Ghoul inflicted bodily injury or used force upon another while in the course of committing a theft, see N.J.S.A.2C:15-1(b), and that he attempted to cause or purposely, knowingly or recklessly caused bodily injury to J.R. See N.J.S.A. 2C:12-1(a). The court found that the aggravating factors outweighed the mitigating factors, and that the presumption of incarceration for second-degree robbery warranted a sentence on the lowest end of the applicable range for the crime committed.

We detect no abuse of discretion in the trial court's application of the aggravating and mitigating factors, see State v. Bieniek, 200 N.J. 601, 612 (2010), and find no basis to upset the length of the sentences imposed.

Affirmed in part and remanded in part for further proceedings consistent with this opinion.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988).

3 In a separate hearing, the court denied Spruill's motion to suppress his statement and the physical evidence seized following a pat-down search, namely J.R.'s debit and identification cards. We address arguments raised in Spruill's appeal in a separate opinion, State v. Spruill, No. A-1739-12, being filed simultaneously on December 17, 2015.

4 Because of our determination, we need not address El-Ghoul's secondary argument, that the court improperly interpreted the analytical factors established in Henderson. R. 2:11-3(e)(2).