STATE OF NEW JERSEY v. ZULFIQAR AHMED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZULFIQAR AHMED,

Defendant-Appellant.

__________________________

January 20, 2017

Submitted December 6, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-12-0924.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Tom Dominic Osadnik, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Zulfiqar Ahmed was convicted of third-degree arson, N.J.S.A. 2C:17-1(b)(3), and was sentenced to four years of probation. He appeals from the conviction, raising the following point of argument

I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)

Because defense counsel did not object to the State's summation, we apply the plain error rule. R. 2:10-2; State v. Macon, 57 N.J. 325, 336-37 (1971). Finding no error, much less plain error, we affirm.

In light of the issue defendant raises, the trial evidence can be briefly summarized. Defendant owned a four-unit apartment building. He and his family lived in one of the first floor units. The State presented evidence that on the evening of April 12, 2012, someone set the building on fire by cutting holes in the walls of the second floor apartments, pouring in gasoline, and igniting it. The fact of the arson was undisputed at the trial; the only issue was whether defendant committed it.

The State's theory was that defendant burned down the building in order to collect the insurance. At the time the fire was set, defendant and his family had all driven to a nearby laundromat. However, the State presented evidence that defendant left the laundromat for a period of about an hour, ostensibly to buy pastries for his family. He appeared to have changed his clothes before returning to the laundromat. The State also presented evidence that, at the time the fire was set, defendant was in debt, and there were no tenants living in the other three apartments. The defense was that the fire was set by a vengeful former tenant named Bell. The defense presented testimony that Bell had threatened to burn down the building because defendant had evicted him.

Against that backdrop, we consider the attorneys' closing arguments. The defense attorney argued that the State had presented relatively little evidence that defendant was in financial difficulty, defendant did not leave the laundromat for as long a period as the State's witnesses contended, and there was strong evidence of third-party guilt.

In response, the prosecutor questioned the credibility of the defense witnesses on the third-party guilt issue. He also reviewed for the jury all of the circumstantial evidence pointing to defendant's guilt. In the course of his summation, the prosecutor asked a series of rhetorical questions, all of which were perfectly proper. Contrary to defendant's appellate argument, none of the prosecutor's questions even remotely referred to defendant's failure to testify at the trial. Understandably, defense counsel did not object to those comments, because there was nothing objectionable about them.

Defendant also argues that at the beginning of the prosecutor's summation, he improperly told the jury that it was their duty, based on their oaths as jurors, to find defendant guilty. Having read those comments in full and in context, we cannot agree.

The prosecutor began his summation by thanking the jurors for "paying attention and just bearing with us" through delays in the trial. The prosecutor then made the following comment, which defendant contends was improper

And now what I'm going to ask you to do is continue with your obligation, your oath, and return the only verdict really that is consistent with the evidence that has been presented here.

In a different context, that remark might give us pause, because a prosecutor may not imply that acquitting a defendant would violate the jurors' oaths or that their oaths require a conviction. See State v. Acker, 265 N.J. Super. 351, 354-57 (App. Div.), certif. denied, 134 N.J. 485 (1993); State v. Kounelis, 258 N.J. Super. 420, 428-29 (App. Div.), certif. denied, 133 N.J. 49 (1992). However, in his very next sentence, the prosecutor specifically told the jury that if the evidence did not convince them of defendant's guilt, then they must find him not guilty.

Now, I liked what [defense counsel] says, we're advocates so we hold our tradition, we hold it strong, and at the end of the day even if I told you that . . . all this evidence leads to the guilt of the defendant, if the evidence doesn't lead to that then you have to find him not guilty, that's just the way the system is.

And if, you know, if [defense counsel] gets up and says to you, well, none of this evidence, you know, and that's his position, his strong advocate position, he tells you none of it leads to defendant's guilt but you find . . . that all of the evidence in fact does then you have to return that verdict that's guilty.

There was no objection to those comments. The prosecutor then launched into a lengthy and entirely appropriate review of the evidence in the case. Viewed in context, and on this record, the prosecutor's initial remarks did not "substantially prejudice" defendant's right to a fair trial. Kounelis, supra, 258 N.J. Super. at 429. Nor did the comments have a clear capacity to produce an unjust result. R. 2:10-2; State v. Munafo, 222 N.J. 480, 488 (2015).

Affirmed.