State v. Husein
| Decision Date | 08 September 2022 |
| Docket Number | A-4557-18 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. AHMAD H. HUSEIN, a/k/a AHMAD HASAN HUSEIN, AHMAD HUSEIN, and YOUSEF HUSEIN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 9, 2022.
On appeal from the Superior Court of New Jersey, Law Division Hudson County, Indictment No. 18-05-0319.
Kayla Rowe, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kayla Rowe, on the briefs).
Patrick R. McAvaddy, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor attorney; Patrick R. McAvaddy, on the briefs).
Appellant filed a pro se supplemental brief.
Before Gilson, Gooden Brown and Gummer, Judges.
Following a jury trial, during which defendant represented himself with stand-by counsel, defendant was convicted of two counts of first-degree robbery, one count of fourth-degree unlawful possession of a weapon, and one count of third-degree possession of a weapon for an unlawful purpose. The convictions stemmed from a spree of armed gas station robberies within a mile of each other in the early morning hours of April 26, 2017. Defendant was sentenced to an aggregate term of fifteen years' imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant now appeals his convictions, memorialized in an April 18, 2019 judgment of conviction (JOC). For the reasons that follow, we affirm the convictions but remand for the limited purpose of determining whether the possession of a weapon for an unlawful purpose conviction merges.
On May 2, 2018, defendant was charged in a Hudson County indictment with five counts of first-degree robbery, N.J.S.A 2C:15-1(a)(3) ();[1] two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (); and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (). Subsequently, counts one, six, and eight were dismissed on the State's motion.
A seven-day trial was conducted in October 2018, during which the State produced numerous witnesses, including three of the robbery victims, the owner of the fourth gas station where a robbery allegedly occurred, the investigating police officers, and defendant's wife.[2] Surveillance videos of three of the robberies were also presented at trial, showing the suspect wearing black sneakers, a ski mask, and a gray sweater or hoodie, and driving a silver Mercedes with something covering the back plate and "missing a front license plate." Defendant testified on his own behalf. We summarize the salient facts from the trial record.
At approximately 3:00 a.m. on April 26, 2017, at the Conoco gas station at 720 Tonnelle Avenue in Jersey City, a "huge" "silver" car pulled up to a pump.
The driver asked the attendant, Amar Nath, to fill his tank. According to Nath, the driver then exited the car, "walk[ed] towards [Nath,] . . . pull[ed] a gun, and . . . said[,] give me money." Nath described the gun as "quite long," measuring about "a foot and a half." Nath testified that the gun was "in [the suspect's] bag . . . and [he] was pointing [the gun at Nath] from the bag."
Nath testified that he only had "about [fifteen] to [twenty] dollars in [his] pocket and [he] took the money out and showed [the driver] . . . [b]ut he did not take that money." Instead, the driver got back into his car. As the car was driving away, Nath noticed there was "a kind of paper" that was "cover[ing] the [license] plate, but it was raining and . . . the paper was wet." Nath "noted" the plate number through the wet paper and called the police.
That same morning, Baldweep Walia[3] was robbed at gunpoint while working at Power gas station at 362 Tonnelle Avenue in Jersey City. Walia testified that just before 3:00 a.m., a "silver" "Mercedes" pulled into the gas station. As Walia was walking towards the car, the driver "stood near" him with a "silver" "pistol in his hand." Walia described the suspect as five feet, eight or ten inches tall, wearing "a jacket and a hoodie." Walia also testified that the suspect was wearing a face covering, preventing Walia from "observ[ing] his face." Nonetheless, Walia described the suspect as white or Hispanic but could not remember the suspect's race.
According to Walia, the suspect told him to put his "hands up and [give him] . . . all [the] money" he had. Walia gave the suspect the money he had in his pockets, which totaled about $295. The suspect then "warned" Walia not to "call the police," or he would "come back and kill [him]." Walia testified that before leaving, the suspect also took "two [or] three antifreeze" containers. As the Mercedes was pulling away, Walia noticed the "plate number, which was covered with a . . . paper." Walia testified that he did not call the police and he was not sure who did, but later that morning, he received a call from his "boss" telling him to complete a police report.
The same morning, sometime between 3:00 and 4:00 a.m., a third robbery occurred. Sukhvir Singh testified that he was working his shift as a gas attendant at Delta at 403 Tonnelle Avenue in Jersey City when a man pulled his car up to a pump. According to Singh, the driver exited the car, said "give me all your cash," "pushed [Singh,] and took . . . all the cash in [his] pockets," which totaled approximately $250 to $300. Singh could not recall what the car looked like and did not remember what the suspect was wearing but recalled that the suspect's "entire face was covered with a mask." Singh described the suspect as tall and skinny, with a "whitish" complexion like his. Singh could not remember "whether [the man] was carrying a weapon or not" but testified that "his arm was covered by a cloth and he kind of pushed something into [Singh's] body." Singh explained that he did not see the car's license plate because "[i]t was all covered" and "taped."
Bhupinder Thind testified that a similar robbery occurred at his gas station around the same time. According to Thind, at approximately 3:00 a.m. on April 26, he received a phone call from his employee, Harbant Singh, alerting him to a robbery that had just taken place at his Delta gas station located at 823 Tonnelle Avenue in Jersey City. The employee told Thind the perpetrator was driving a "white truck."
Jersey City Police Detective David Murawinski was one of the investigating officers. He testified that at around 3:00 a.m. on April 26, 2017, he responded to a report of an armed robbery at 720 Tonnelle Avenue. According to Murawinski, upon arrival, he looked at surveillance video, and spoke with the victim. Murawinski learned that the robber was driving a four-door silver Mercedes and brandishing a gun. The victim gave Murawinski the license plate number of the Mercedes and described the robber as a "six[-]foot [-]two, light to medium skinned male wearing a gray hooded sweatshirt and a ski mask." While at the scene, Murawinski received two more phone calls reporting "armed robber[ies]" at nearby "gas station[s]." Murawinski went to those locations and reviewed surveillance videos showing the suspect driving what appeared to be the same "silver" "Mercedes."
Armed with that information, through a database search, Jersey City Police Detective Mark D'Ambrosia discovered that the vehicle used in the armed robberies was registered to "Jsmeen Abada." On the morning of April 26, 2017, D'Ambrosia and other officers located the Mercedes at Abada's home address and conducted visual surveillance. At approximately 12:05 p.m. that day, a female and a male fitting the description of the robbery suspect exited the home, entered the Mercedes, and drove away.
The officers followed the couple and conducted a motor vehicle stop at a red-light intersection. As the officers approached the vehicle, D'Ambrosia saw "a black duffel bag with a silver barrel of a handgun sticking out from it" located on the rear passenger seat of the Mercedes. A subsequent search of the car revealed that the gun "was a paintball gun." Officers also discovered "three bottles of antifreeze" and "[a] black ski mask" inside the Mercedes.
Police detained the couple and transported them to the police station for questioning. The male was identified as defendant and Abada's husband. At the police station, Abada reviewed "surveillance footage" of the robberies. While watching the footage, she identified the Mercedes as "[her] car," and noticed "[t]he masked man" was wearing "a sweater" that she had seen on her "couch that morning." She also testified that the suspect's shoes on the video that "had a paint mark on [them]" were "in [her] kitchen." Additionally, she identified a "blue bag" in the video that she had seen "on [her] couch."
Abada testified that after she was questioned, officers asked her for "[c]onsent to [s]earch . . . [the] apartment" she shared with defendant and informed her of "her right to refuse." Abada stated she "agreed" to the search and "signed [the] consent [form]." D'Ambrosia was not in the room when Abada consented to the search. However, he testified that there were standard procedures involved in consent searches that included "read[ing] the person [his or her] rights" and informing the person of his or her right to refuse. D'Ambrosia also testified that the detectives had complied with the procedures by presenting Abada with a consent-to-search form. The consent form provided that the signer "voluntarily and without threats or promises of any kind" authorized detectives to conduct...
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