STATE OF NEW JERSEY VS. HAKIM R. NELSON (15-11-1363, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0684-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAKIM R. NELSON, a/k/a
DARNELL KNIGHT and
RAUSHAWN NELSON,
Defendant-Appellant.
Submitted June 4, 2020 – Decided July 23, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-11-
1363.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen William Kirsch, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel A. Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Hakim R. Nelson was convicted of all twelve
counts in an indictment. As to Ahmad Musleh: third-degree impersonation/theft
of identity, N.J.S.A. 2C:21-17(a) (count one); fourth-degree trafficking in
personal identifying information, N.J.S.A. 2C:21-17.3(a) (count two); third-
degree theft by deception, N.J.S.A. 2C:20-4 (counts three and four); and second-
and third-degree computer theft, N.J.S.A. 2C:20-25(c) (counts five and six). As
to Alberto Parache: third-degree impersonation/theft of identity, N.J.S.A.
2C:21-17(a) (count seven); fourth-degree trafficking in personal identifying
information, N.J.S.A. 2C:21-17.3(a) (count eight); third- and fourth-degree theft
by deception, N.J.S.A. 2C:20-4 (counts nine and ten); third-degree attempted
theft by deception, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4 (count eleven); and
second-degree computer theft, N.J.S.A. 2C:20-25(c) (count twelve). 1 After
appropriate mergers, the judge sentenced defendant on September 7, 2018, to
the following concurrent terms: five years on count one, eighteen months on
count two, ten years on count five subject to five years parole ineligibility, and
1
Defendant's co-defendant, Lincoln Balfour, a bank employee, was charged in
the two remaining counts of the indictment with second-degree computer theft,
N.J.S.A. 2C:20-25(e) (count thirteen); and second-degree access and disclosure,
N.J.S.A. 2C:20-31(b) (count fourteen).
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five years on count six. The judge imposed the sentences for the crimes
committed against the second victim consecutively to count five, although all
were concurrent to each other. They were: on count seven, imprisonment of
five years; on counts eight and ten, eighteen-month terms; on count twelve, eight
years subject to parole ineligibility of four years. Thus, defendant's aggregate
sentence was eighteen years imprisonment with the corresponding terms of
parole ineligibility. For the reasons that follow, we affirm.
Defendant impersonated Musleh and Parache on the phone gaining access
to their TD Bank accounts and stealing approximately $26,000 from the two
victims. During the trial, two sets of recorded phone calls made to TD Bank
were played for the jury. One set dated from September 2014 and consisted of
the suspect claiming to be the victims. The other set was defendant's calls
accessing his own bank accounts. The latter was introduced to compare
defendant's voice to that of the thief.
Piscataway Police Department Sergeant Daniel Kapsch and Musleh
testified that the impersonator's voice was defendant's. The recordings are the
focus of defendant's appeal.
Pretrial, the court conducted a Rule 104 hearing regarding the
admissibility of Kapsch’s testimony identifying defendant as the speaker.
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During that hearing, Kapsch said he interacted with defendant beginning in
December 2004, when he responded to a call about a verbal dispute. Kapsch
encountered defendant again when he arrested and processed him in July 2005,
August 2005, and March 2006. He interacted with defendant a number of times
while on routine patrol and was acquainted with defendant's father.
Kapsch testified he listened to the phone calls between the person
impersonating Musleh and Parache after obtaining documents from TD Bank's
investigation that had "developed defendant as a suspect." Although it had been
nine years since the last contact, he identified defendant's voice because it was
so distinctive.
During his investigation, Kapsch spoke with defendant on the phone. The
fraudulent calls originated from that same number. Having heard defendant's
voice again, Kapsch was one hundred percent certain defendant was the person
who called TD Bank, pretending to be the real account owner.
In his oral decision regarding the admissibility of Kapsch's identification,
the judge found Kapsch credible and forthcoming. Kapsch's opinion was
"rationally based on his perception, the perception made when he interacted with
the defendant and what he heard on the audiotape." Additionally, the testimony
would assist the jury in ascertaining the identity of the caller to TD Bank.
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When the hearing was conducted, the State had not informed defendant
that it would also play taped calls he allegedly made directly to TD Bank as a
way to identify the impersonator's voice. Defendant at that point was also
unaware Musleh would identify defendant's voice on the recordings.
During the trial, defendant questioned why Kapsch's testimony was even
necessary if the jury was going to have the opportunity to hear the voice of a
person identifying himself as defendant dealing with his TD Bank account.
Initially, the judge did not rule on the issue, as the argument shifted to whether
defense counsel had been provided copies of the tapes of defendant's phone
calls. When counsel raised the issue a second time at the end of the day, the
judge instructed counsel to provide additional research on the question, and
informed the attorneys he would revisit the matter after that.
On the next day of trial, the State filed a motion in limine requesting a 104
hearing on Musleh's testimony. Defense counsel again objected that Kapsch
should not be allowed to identify defendant when the jury could make their own
finding based on comparisons of the two sets of phone calls. Counsel and the
judge engaged in a colloquy during which defense counsel stated defendant
would not stipulate that it was his voice on the recordings made to the bank
regarding his own account. The judge ruled that the jury could hear Kapsch's
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identification, in addition to the tapes allegedly of defendant's voice regarding
his own account.
During the 104 hearing, Musleh testified he recognized defendant's voice
because he shopped at his supermarket approximately once a month over the last
five years. The judge ruled that Kapsch and Musleh could both "testify that they
recognize the voice on the audio recordings captured by TD bank wherein the
defendant purportedly is impersonating [the victims]."
When Musleh testified before the jury, he identified defendant as the
caller who impersonated him based on his acquaintance over the years. Kapsch
also testified, explaining he knew defendant from the community, and identified
his voice as the impersonator. During the course of the State's presentation, the
prosecutor played several clips, asking Musleh and Kapsch after each if they
could confirm the voice was defendant's.
The jury also heard the testimony of a senior investigator at TD Bank.
After Parache reported the fraudulent transactions on his account, the
investigator requested certain documents "[t]o see if there was any internal link
to the fraud." When asked if she developed any suspects as a result, she stated
"[t]he internal was Lincoln Balfour which then led to Hakim Nelson."
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In his closing charge to the jury, the judge instructed on counts eleven and
twelve, attempted theft by deception and computer criminal activity, stemming
from defendant's last failed attempts to withdraw money from the victims'
accounts. The attempts were unsuccessful because the transactions were
blocked by the bank.
The judge further instructed:
The statute upon which this count of the
indictment is based, states in pertinent part, a person is
guilty of computer criminal activity, if the person
purposely or knowingly, and without authorization, or
in excess of authorization, accesses or attempts to
access any data, data base, computer, computer storage
medium, computer program, computer software,
computer equipment, computer system, or computer
network for the purpose of executing a scheme to
defraud, or to obtain services, property, personal
identifying information, or money, from the owner of a
computer or any third party.
In order to convict defendant of computer
criminal activity, the State must prove the following
elements beyond a reasonable doubt. One, that
defendant purposely or knowingly accessed or
attempted to access any data, database, computer,
computer storage or medium, computer program,
computer software, computer equipment, computer
system, or computer network.
That defendant did not have authorization or
acted in excess of authorization. And that defendant
acted with purpose to execute a scheme to defraud, or
to obtain services, property, personal identifying
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information, or money, from the owner of a computer
or any third party.
The first element that the State must prove
beyond a reasonable doubt is that the defendant
purposely or knowingly accessed or attempted to access
any data, database, computer, computer storage
medium, computer program, computer software,
computer equipment, computer system, or computer
network.
....
The second element the State must prove beyond
a reasonable doubt is that the defendant did not have
authorization or acted in excess of authorization.
....
The third element that the State has to prove
beyond a reasonable doubt is that the defendant acted
with purpose to execute his scheme to defraud or to
obtain services, property, personal identifying
information, or money from the owner of a computer or
any third party.
At sentencing, based on defendant's substantial criminal history, which
included six prior indictable offenses, the judge found aggravating factors three,
six, and nine. No mitigating factors were found.
Defendant raises the following points on appeal:
POINT I
SIMILAR TO THE BASIS FOR REVERSAL IN
STATE V. LAZO, THE TRIAL JUDGE
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IMPROPERLY ADMITTED, OVER DEFENSE
OBJECTION, LAY OPINION TESTIMONY OF A
POLICE OFFICER AND OF ANOTHER WITNESS
THAT DEFENDANT'S VOICE WAS THE ONE
HEARD ON RECORDINGS.
POINT II
IN VIOLATION OF THE CONFRONTATION AND
HEARSAY DOCTRINES OF STATE V. BRANCH
AND OTHER CASES, THE STATE IMPROPERLY
INTRODUCED TESTIMONY THAT
INVESTIGATORS DISCOVERED SECRET
INFORMATION REGARDING THE
CODEFENDANT'S STATUS AS THE "INTERNAL
LINK" TO THE FRAUDS INSIDE TD BANK, AND
THAT THEN THE CODEFENDANT, WHO DID NOT
TESTIFY AT TRIAL, IMPLICATED DEFENDANT
TO INVESTIGATORS.
POINT III
THE JURY WAS INCORRECTLY INSTRUCTED
THAT ATTEMPTING TO ILLEGALLY ACCESS
COMPUTER INFORMATION CONTRARY TO
N.J.S.A. 2C:20-25C CAN BE COMMITTED WITH A
PURPOSEFUL OR KNOWING STATE OF MIND
WHEN ONLY A PURPOSEFUL STATE OF MIND
SUFFICES FOR A CRIMINAL ATTEMPT.
POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.
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I.
"In reviewing a trial court's evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008).
Defendant contends first that Kapsch and Musleh's testimony was
impermissible lay opinion testimony. The argument has no merit. Lay opinion
testimony is admissible if it "(a) is rationally based on the perception of the
witness and (b) will assist in understanding the witness' testimony or in
determining a fact in issue." N.J.R.E. 701. A lay witness's perception "rests on
the acquisition of knowledge through use of one's sense of touch, taste, sight,
smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011). The second
requirement "is limited to testimony that will assist the trier of fact either by
helping to explain the witness's testimony or by shedding light on the
determination of a disputed factual issue." Id. at 458.
Defendant relies heavily on State v. Lazo, 209 N.J. 9 (2012), in making
his argument. In that case, the New Jersey Supreme Court held that a police
officer's opinion that he selected the particular photograph of the defendant for
a photo lineup, because it resembled a composite sketch created based on the
victim's description, was inadmissible under Rule 701. Id. at 24.
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The Court considered federal cases in fashioning a standard for the
admissibility of identification lay testimony in New Jersey. This included a
Ninth Circuit case that held that "lay witness testimony is permissible where the
witness has had sufficient contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful." Id. at 22 (quotations omitted)
(quoting United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)). Whether
an opinion was "helpful" depends on a variety of factors including the witness's
familiarity with defendant's appearance, whether defendant disguised himself,
and whether the witness knew defendant over time and in a variety of
circumstances. Ibid. (quoting Beck, 418 F.3d at 1015); see also State v.
Carbone, 180 N.J. Super. 95, 97-100 (Law Div. 1981). Other factors include
whether additional, non-law enforcement witnesses could testify to defendant's
identification and whether defendant's appearance had changed prior to trial.
Lazo, 209 N.J. at 23.
There were a number of reasons the Lazo Court found the detective's
testimony inadmissible. A key distinction between those facts and these is that
the Lazo detective's testimony was not based on his prior personal familiarity
with defendant, stemmed entirely from the victim's description, and did nothing
more than bolster the victim's account. Id. at 24.
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In this case, however, both Kapsch and Musleh had a solid familiarity with
the distinctive sound of defendant's voice arising from their contacts with him
over multiple years. The testimony would assist the jury in determining a
disputed issue of fact, namely, the identity of the caller who made the illegal
transfers. Thus, the requirements of Rule 701 are met.
This jury had to assess whether, based on Kapsch and Musleh's testimony,
the voice they ultimately identified as belonging to defendant was his. Their
role was to make an independent judgment regarding, first, whether the
identification made by those witnesses, based on their perceptions over time,
was justified. But the jury was free to reject the identifications made by the
witnesses.
Nothing in Rule 701 prohibits the admission of lay testimony under these
circumstances. It was understandable that as a matter of strategy defense
counsel did not stipulate that his was the voice that purported to be directing
activity in his own account. The judge therefore did not abuse his discretion in
admitting the lay opinion testimony. It met the second requirement of N.J.R.E.
701—it assisted the jury in determining a fact in issue.
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II.
Defendant contends that the TD Bank investigator violated the
proscription against the introduction of the confession of a non-testifying co-
defendant. See State v. Gentry, 439 N.J. Super. 57, 72 (App. Div. 2015). It is
well-established that a co-defendant's inculpating out-of-court statement is
inadmissible as a violation of the rule against hearsay and a defendant's
constitutional right to confront witnesses. Id. at 72-73. Those rules did not
apply here.
The challenged testimony did not refer to anything that Balfour may have
said. Rather, the investigator only stated that as a result of her investigation,
she was led to defendant. Thus, the argument has no merit.
Defendant also contends that the admission violated State v. Bankston, 63
N.J. 263, 271 (1973) and State v. Branch, 182 N.J. 338, 349 (2005). The TD
Bank investigator was not a police officer, however, and her passing reference
to Balfour did not create an "inescapable inference" that the police received
information from an unknown source implicating defendant in the crime.
Bankston, 63 N.J. at 271. It is just as plausible that the jury would speculate
that the investigator was led to defendant through bank records, which were an
element of the State's case against defendant. The bank records indicated that
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defendant used stolen funds, for example, to pay the Cablevision bill for his
home and to purchase an automobile. After the victims' accounts were blocked,
he attempted to transfer $10,000 to two individuals who lived "a couple of
houses away" from him. This claim has no merit.
III.
We review jury instructions for plain error when no objections are raised
at trial. State v. Singleton, 211 N.J. 157, 182 (2012). Generally, a plain error is
one that is "clearly capable of producing an unjust result." R. 2:10-2. With jury
instructions, "plain error requires demonstration of 'legal impropriety in the
charge prejudicially affecting the substantial rights of the defendant and
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54
N.J. 526, 538 (1969)).
Defendant contends that the trial court erred as to counts eleven and
twelve by charging the jury that "a person is guilty of computer criminal activity,
if the person purposely or knowingly . . . accesses or attempts to access any data
. . . for the purpose of executing a scheme to defraud . . . ." He claims the verdict
sheet repeated the error, and that the error violates the well-established principle
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that a purposeful state of mind is required for criminal attempt. See State v.
Rhett, 127 N.J. 3, 7 (1992).
The computer criminal activity statute states "[a] person is guilty of
computer criminal activity if the person purposely or knowingly . . . [a]ccesses
or attempts to access any data, . . . ." N.J.S.A. 2C:20-25(c) (emphasis added).
The model jury charge restates the entire statute and informs the jury the State
must prove beyond a reasonable doubt that defendant “accessed or attempted to
access data” and that they did so "purposely or knowingly." Model Jury Charge
(Criminal), "Computer Criminal Activity – Access to Defraud" (approved June
11, 2018). Because the judge here followed the model jury charge verbatim,
there is no plain error. Mogull v. CB Commercial Real Estate Grp., 162 N.J.
449, 466 (2000) (“It is difficult to find that a charge that follows the
Model Charge so closely constitutes plain error.”). The lack of specificity that
the criminal attempt required a purposeful state of mind, given the nature of the
crime, did not have the capacity to bring about an unjust result. Thus, this
argument also lacks merit.
IV.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
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(2018). A reviewing court's authority to overturn a trial court's sentence is
limited to a "clear error of judgment or a sentence that ‘shocks the judicial
conscience.'" State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v.
Roth, 95 N.J. 334, 363-65 (1984)). Specifically, a trial court is "clearly
mistaken" in its sentencing where the sentencing guidelines were not followed
or applied, the aggravating and mitigating factors are not based on sufficient
evidence in the record, or the application of the guidelines in the particular case
is so unreasonable as to shock the judicial conscience. State v. Jarbath, 114 N.J.
394, 401 (1989).
Defendant contends the judge did not consider two mitigating factors, one
and two, in sentencing him, thus making his sentence improper. Factor one is
that "defendant's conduct neither caused nor threatened serious harm," and
factor two is that the "defendant did not contemplate his conduct would cause
or threaten serious harm." N.J.S.A. 2C:44-1(b)(1) and (2). The amount of
money at issue defeats that argument. The judge found defendant's crimes had
"a profound effect on [the victims'] lives." Thus, the judge's failure to find
mitigating factors was not an abuse of discretion.
Affirmed.
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