STATE OF NEW JERSEY VS. NASEEM N. ABU-DAYYAÂ (13-02-0126, 13-04-0384 AND 13-12-1103, CAPE MAYCOUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5135-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASEEM N. ABU-DAYYA, a/k/a ABU
NASEEM N, DAYA NASEEM N,
DAYA NASEEM,
Defendant-Appellant.
__________________________________________________
Submitted September 11, 2017 – Decided October 26, 2017
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Indictment Nos. 13-02-0126, 13-04-0384, and
13-12-1103.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, on the brief).
Robert L. Taylor, Cape May County Prosecutor,
attorney for respondent (Gretchen A.
Pickering, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
A jury acquitted defendant Naseem N. Abu-Dayya of conspiring
with co-defendant Alexander J. Hudson to commit burglary and
burglary but convicted defendant of the lesser-included offense
of fourth-degree theft, N.J.S.A. 2C:20-3(a). The judge sentenced
defendant to 365 days in the county jail.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE MOTION FOR A JUDGMENT OF ACQUITTAL OF THE
THEFT CONVICTION NOTWITHSTANDING THE VERDICT,
SHOULD HAVE BEEN GRANTED IN LIGHT OF
ACQUITTALS FOR BURGLARY AND CONSPIRACY, THE
TRIAL COURT'S DENIAL OF THE STATE'S MOTION TO
INSTRUCT THE JURY ON RECEIPT OF STOLEN
PROPERTY, AS WELL AS THE COURT'S ERRONEOUS
RESPONSE TO A JURY QUESTION REGARDING THEFT.
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
The victim testified that she returned home from vacation and
found her house burglarized. Approximately $50,000 worth of
various items were missing, including a laptop computer. She
suspected the involvement of Hudson, who lived across the street
and was a cousin to her children.
Hudson gave a statement to police implicating defendant and
pled guilty to conspiracy and burglary, providing a plea allocution
detailing defendant's involvement. However, when called by the
State as a witness at trial, Hudson recanted and claimed defendant
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was not involved. The judge permitted the State to introduce the
plea allocution as substantive evidence, finding it met the
requirements of State v. Gross, 216 N.J. Super. 98 (App. Div.
1987), aff'd and remanded, 121 N.J. 1 (1990).
Police arranged for Hudson to call defendant to seek the
return of the laptop computer. They listened in on the phone
conversation, wherein defendant said he had "wiped" the computer
and had already received an offer to sell it to someone else.
Hudson offered more money and defendant agreed to meet him with
the laptop. Detectives drove Hudson to the designated location
on the boardwalk and arrested defendant when he emerged from his
store to meet him. Defendant did not have the computer.
Subsequent searches of defendant's home and business did not
produce any of the stolen items from the victim's home, including
the laptop computer.
Defendant gave police a formal statement that was played for
the jury in which he denied any involvement and claimed to have
been somewhere else at the time of the burglary. He admitted
speaking to Hudson on the phone, but his version of the
conversation differed completely from what the officers testified
they overheard.
At the close of the State's case, defendant moved for a
judgment of acquittal, Rule 3:18-1, which the judge denied.
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Defendant objected to the State's request to charge receiving
stolen property, N.J.S.A. 2C:20-7, pursuant to the consolidation
of theft provisions of the Criminal Code, N.J.S.A. 2C:20-2. The
judge agreed and did not give the charge.
During deliberations, the jury asked "[o]n count three
. . . , theft, does the defendant need to be on the property at
the location [of the victim's home]?" The judge intended to
respond simply in the negative. Defense counsel initially took
no position, but then the parties went to sidebar. Unfortunately,
the conversation at sidebar was indiscernible and not transcribed.
The judge decided to "stick right to the . . . question" asked,
and told the jurors, "No, the defendant does not have to be on the
property." Shortly thereafter, the jury returned the verdicts we
referenced earlier.
While arguing for bail pending sentence, defense counsel
contended the judge's answer to the jury question was "wrong," and
she intended to file post-verdict motions. She argued that in
light of the acquittal on other charges, the judge's answer
permitted the jury to find defendant guilty of receiving stolen
property, not theft of that property.
Defendant subsequently moved for judgment notwithstanding the
verdict (JNOV), Rule 3:18-2, or alternatively a new trial, Rule
3:20-1. He claimed the evidence was insufficient to prove beyond
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a reasonable doubt that he committed theft, and the judge's answer
to the jury question was improper. During argument, the judge
clarified what occurred at sidebar prior to responding to the jury
question. Specifically, the judge said defense counsel requested
he recharge the jury on theft; defense counsel agreed with the
judge's recollection. Defense counsel reiterated her argument
that the judge's answer permitted the jury to find defendant guilty
of receiving stolen property, not theft. Finally, defense counsel
argued the judge should vacate the conviction because it was
inconsistent with the jury's decision to acquit defendant of
conspiracy and burglary.
The judge carefully reviewed the evidence and the standards
applicable to motions for JNOV or a new trial. Regarding the
theft conviction, the judge properly noted, "[p]roof of the
location is not an element of the charge." The judge concluded
the jury could not have convicted defendant of receiving stolen
property because he never provided instructions on that
substantive offense. The judge denied the motions.
We review of the denial of defendant's motion for acquittal
de novo, applying the same standard used by the trial judge. State
v. Bunch, 180 N.J. 534, 548-49 (2004). "We must determine whether,
based on the entirety of the evidence and after giving the State
the benefit of all its favorable testimony and all the favorable
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inferences drawn from that testimony, a reasonable jury could find
guilt beyond a reasonable doubt." State v. Williams, 218 N.J.
576, 594 (2014) (citing State v. Reyes, 50 N.J. 454, 458-59
(1967)). We "must consider only the existence of such evidence,
not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J.
Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130
N.J. Super. 336, 342 (1974), certif. denied, 67 N.J. 72 (1975)).
A "judge . . . may grant the defendant a new trial if required
in the interest of justice." R. 3:20-1.
"The trial judge shall not, however, set aside
the verdict of the jury as against the weight
of the evidence unless, having given due
regard to the opportunity of the jury to pass
upon the credibility of the witnesses, it
clearly and convincingly appears that there
was a manifest denial of justice under the
law."
[Ibid.]
The judge's decision on a motion for a new trial based upon
the insufficiency of the evidence "shall not be reversed unless
it clearly appears that there was a miscarriage of justice under
the law." R. 2:10-1. "[A] motion for a new trial is addressed
to the sound discretion of the trial judge, and the exercise of
that discretion will not be interfered with on appeal unless a
clear abuse has been shown." State v. Armour, 446 N.J. Super.
295, 306 (App. Div. 2016) (quoting State v. Russo, 333 N.J. Super.
119, 137 (App. Div. 2000)).
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Defendant asserts the inconsistency of the verdicts requires
reversal. However,
"[i]n reviewing a jury finding, we do not
attempt to reconcile the counts on which the
jury returned a verdict of guilty and not
guilty. . . . Instead, we determine whether
the evidence in the record was sufficient to
support a conviction on any count on which the
jury found the defendant guilty."
State v. Muhammad, 182 N.J. 551, 578 (2005)
(citations omitted).
"We do not speculate whether verdicts resulted from jury
lenity, mistake, or compromise." Ibid.; see also State v. Grey,
147 N.J. 4, 11 (1996) (noting inconsistent verdicts may have
"resulted from jury lenity, compromise, or mistake not adversely
affecting the defendant").
"Review of the sufficiency of the evidence on the guilty
verdict[s] is independent of the jury's determination that
evidence on another count[s] was insufficient." State v. Petties,
139 N.J. 310, 319 (1995) (citing United States v. Powell, 469 U.S.
57, 67, 105 S. Ct. 471, 478, 83 L. Ed. 2d 461, 470 (1984)). "Each
count in an indictment is regarded as if it was a separate
indictment." Muhammad, supra, 182 N.J. at 578 (citations omitted).
To prove defendant guilty of theft, the State needed to prove
he knowingly "took or unlawfully exercised control" of the victim's
property with an intent to deprive her of it. See Model Jury
Charge (Criminal), "Theft Of Movable Property" (2008) (emphasis
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added). The judge cited the testimony regarding the overheard
conversation, in which defendant admitted that he had the victim's
computer, "wiped" it clean and intended to sell it. We agree
fully with the judge that the evidence supported the jury's finding
of defendant's guilt beyond a reasonable doubt.
Defendant cites to Grey and State v. Branch, 301 N.J. Super.
307, 329-33 (App. Div. 1997), rev'd 155 N.J. 317 (1998), but those
cases are inapposite. In each, the jury convicted the defendant
of felony murder but not the underlying felony, a necessary element
of felony murder. Grey, supra, 147 N.J. at 17; Branch, supra, 155
N.J. at 319.
Defendant incorrectly claims that because the jury concluded
he did not "take" the laptop computer, he could only be guilty of
receiving stolen property, a crime the judge correctly refused to
charge, in part, because defendant was not on notice of the charge.
As we have already said, one can be guilty of theft through the
knowing and unlawful exercise of control over property,
accompanied by the requisite intent to permanently deprive its
owner.
The balance of defendant's arguments not otherwise
specifically addressed lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2).
Affirmed.
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