SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4795-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDUL S. AZIZ,

Defendant-Appellant.

_________________________

Submitted November 10, 2020 – Decided

Before Judges Yannotti, Haas, and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 11-12-1201.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Ruth E. Hunter, Designated Counsel, on the 

brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Milton S. Leibowitz, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 24, 2020
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A-4795-17T3

A Union County grand jury charged defendant Abdul Aziz with firstdegree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and seconddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) 

(count three).

Prior to trial, defendant filed a number of motions, including a request to 

suppress statements he made to the police during an interview. After the 

Supreme Court granted defendant's motion for leave to appeal the Law 

Division's February 24, 2014 decision denying defendant's suppression motion 

and remanded the matter to this court, we rendered a decision suppressing 

defendant's statement. State v. Aziz, No. A-0931-14 (App. Div. Apr. 1, 2016) 

(slip op. at 1, 12).

Following a multi-day trial, the jury convicted defendant of all three 

counts of the indictment. The judge sentenced defendant to fifty years in prison 

on count one, subject to an eighty-five percent period of parole ineligibility 

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and five years of 

parole supervision upon his release. The judge sentenced defendant to 

concurrent seven-year terms on counts two and three, subject to forty-two 
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months of parole ineligibility on each count. The judge merged count three into 

count one. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS 

VIOLATED BY THE MORE THAN SIX-YEAR 

DELAY BETWEEN HIS ARREST AND TRIAL 

SUCH THAT THE INDICTMENT MUST BE 

DISMISSED. (Not Raised Below).

POINT II

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL 

BECAUSE THE TRIAL COURT FAILED TO 

INSTRUCT THE JURY ABOUT THE SPECIFIC 

PURPOSE FOR WHICH IT COULD CONSIDER 

DEFENDANT'S HOSTILE TEXT MESSAGES. (Not 

Raised Below).

POINT III

THE PROSECUTOR'S COMMENTS DURING HER 

OPENING AND CLOSING DEPRIVED 

DEFENDANT OF A FAIR TRIAL BECAUSE SHE 

RELIED ON FACTS NOT IN EVIDENCE AND 

INFLAMED THE JURY. U.S. Const. amend. XIV; 

N.J. Const. art. 1, ¶[¶]1, 10 (Not Raised Below).

POINT IV

THE TRIAL COURT ERRED IN DENYING THE 

MOTION TO SUPPRESS THE WARRANTLESS 

SEARCH OF THE GARAGE UNDER THE PLAIN 

VIEW EXCEPTION BECAUSE DISCOVERY OF 
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DEFENDANT'S CAR WAS NOT "INADVERTENT." 

SEE STATE V. BRUZZESE, 94 N.J. 210, 236-[]38 

(1983).

POINT V

THIS COURT SHOULD REMAND FOR 

RESENTENCING BECAUSE THE COURT ERRED 

IN BASING AGGRAVATING FACTORS ON A 

PRIOR CRIME THAT WAS DISMISSED AND ON 

AN UNSUPPORTED FINDING THAT DEFENDANT 

LACKED REMORSE.

POINT VI

THE JUDGMENT OF CONVICTION SHOULD BE 

CORRECTED TO REMOVE THE FINES ON THE 

MERGED COUNT.

After reviewing the record in light of the contentions advanced on appeal, 

we affirm defendant's convictions and sentence, but remand to correct the 

Judgment of Conviction to remove the fines the judge imposed on count three.

I.

On July 11, 2011, Ramona Jackson was killed by a gunshot wound to the 

head and hand. The State's medical examiner determined that the gun was fired 

at close range.

At the time of her murder, Jackson was engaged to Sincere Johnson, who 

lived across the street from her. However, she had previously dated defendant 

and, when defendant moved back to the area earlier in the year, they rekindled 
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that dating relationship. During the investigation that followed Jackson's 

murder, the State was able to recover numerous text messages defendant had 

sent to both Jackson and Johnson expressing his anger and jealousy over the 

couple's ongoing relationship.

In the late afternoon of July 11, 2011, defendant and Jackson went to a 

boathouse in Elizabeth, where they used the paddleboats together for about thirty 

minutes. Surveillance footage from three nearby businesses captured a dark 

colored Ford Explorer, which was consistent with the car defendant owned, 

leaving the area, heading along a street toward a dead-end, and then disappearing 

down an access road at 7:04 p.m. The footage showed an individual in the front 

passenger seat of the car as it entered the access road. When the car was next 

seen about three and a half minutes later returning from the access road, the 

passenger was no longer in the front passenger seat.

At approximately 8:30 p.m., defendant entered the Elizabeth police station 

and told the officer at the front desk that there was a warrant for his arrest. After 

the officer ran a check of defendant's name, he told defendant there were no 

warrants for his arrest and defendant left the station.
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About five or ten minutes later, defendant returned to the station and again 

told the officer there was a warrant for his arrest. When the officer repeated 

there were no warrants, defendant left the station.

Jackson's body was found at 7:30 a.m. the next morning on the access road 

where the Ford Explorer had been seen on the security footage. The body was 

near a manhole cover. 

After identifying defendant as a suspect, the police conducted surveillance 

of his apartment, but defendant never returned there. On July 15, 2011, the 

police obtained a search warrant for defendant's home and found an empty safe 

underneath defendant's bed.

The police learned that defendant rented one-half of a two-car garage at 

his apartment complex, which he shared with another tenant. The garage had 

separate entrances, but there was no barrier between the two spaces. The owner 

of the other space gave the police permission to enter her half of the garage and, 

when they did so, the officers were able to see defendant's Ford Explorer in the 

adjoining parking spot. The police then obtained a warrant to enter and search 

defendant's portion of the garage and his car. The police found a fresh scuff 

mark on the right passenger tire, which was consistent with the car having struck 

the manhole cover near Jackson's body.
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On July 16, 2011, defendant again returned to the police station and stated 

he believed the police were looking for him. By this time, a warrant had been 

issued for defendant's arrest, and the police took him into custody. Defendant 

was wearing a shirt that had a similar design to the shirt seen on the boathouse 

surveillance footage. The police also found that defendant had worked from 

February 2011 to May 2011 at a company located a short distance from where 

Jackson's body was found.

II.

In Point I, defendant argues for the first time on appeal that the six-year 

gap between the date of his arrest and his conviction violated his right to a 

speedy trial. We disagree.

The Sixth Amendment to the United States Constitution and Article I of 

the New Jersey Constitution guarantee criminal defendants the right to a speedy 

trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶¶ 1, 10. This right attaches at 

the time of defendant’s arrest. State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. 

Div. 2009).

 In assessing a defendant's claim of a speedy trial violation, the court must 

balance the following factors: 1) the length of the delay; 2) the reasons for the 

delay; 3) whether and how defendant asserted his speedy-trial right; and 4) the 
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prejudice to defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530 

(1971); State v. Townsend, 186 N.J. 473, 487 (2006). These factors are assessed 

and balanced in light of competing interests: on one side, the "societal right to 

have the accused tried and punished" and on the other, a defendant's right to be 

prosecuted "fairly and not oppressively." State v. Dunns, 266 N.J. Super. 349, 

380 (App. Div. 1993) (quoting State v. Farmer, 48 N.J. 145, 175 (1966)). We 

weigh the State's deliberate delay more heavily in favor of dismissal of the 

prosecution than delay attributable to the State's negligence or the court 

procedures and calendars. Barker, 407 U.S. at 531. Conversely, delay caused 

by a defendant's failure to invoke his right to a speedy trial, and the absence of 

actual prejudice and evidence of an advantage or benefit gained by the delay 

weigh in favor of the denial of the defendant's claim. State v. Misurella, 421 

N.J. Super. 538, 545-46 (App. Div. 2011).

After applying the Barker factors, we are satisfied that defendant's right 

to a speedy trial was not violated. Defendant was arrested on July 16, 2011, and 

his trial did not begin until December 5, 2017, a gap of over six years. This 

factor therefore weighs in favor of defendant.

However, under the second Barker factor, the record demonstrates that 

most of this delay was attributable to defendant's motion practice, which 
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included a lengthy interlocutory appeal to this court and the Supreme Court 

successfully challenging the denial of his motion to suppress his statements to 

the police. In addition, defendant filed numerous other motions during the sixyear period, including eight different motions on July 10, 2017. Once the trial 

court resolved these final applications, defendant's trial commenced. Defendant 

also changed his attorney several times, which added to the delay and allowed 

him to file additional pro se motions.

Significantly, defendant never raised his right to a speedy trial before the 

trial court and, therefore, the third Barker factor weighs heavily against him. 

Turning to the fourth factor, defendant has also failed to present any specific 

evidence that he was prejudiced by the delay.

In sum, we conclude there was no violation of defendant's right to a speedy 

trial. This was a complex prosecution of a first-degree murder charge. 

Defendant did not assert his right to a speedy trial at any time, and suffered no 

detectable prejudice by the admittedly uncommon delay. Under these 

circumstances, the delay by itself does not warrant reversal. Barker, 407 U.S. 

at 477.
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III.

For the first time on appeal, defendant contends the trial judge erred by 

failing to instruct the jury on the limited use of defendant's text messages to 

Jackson and Johnson in which he expressed his anger and jealousy over their 

relationship. Because the judge did not specifically inform the jury that it could 

only consider the messages as proof of defendant's motive as permitted by 

N.J.R.E. 404(b), defendant asserts that his convictions must be reversed. Again, 

we disagree.

The judge granted the State's pre-trial motion to admit the text messages. 

In his November 3, 2017 written decision, the judge explained that the messages 

were admissible under N.J.R.E. 404(b) to prove defendant's motive. Defendant 

does not challenge this ruling on appeal.

When the State introduced this evidence at trial, however, the judge did 

not give the jury a limiting instruction that it could only consider the messages 

as evidence of defendant's motive. The judge also did not give the jury a limiting 

instruction on this subject in his final charge.

However, it is well established that if a trial court admits evidence of other 

crimes or bad acts under N.J.R.E. 404(b), it "must provide a limiting instruction 

that 'inform[s] the jury of the purposes for which it may, and for which it may 
11 A-4795-17T3

not, consider the evidence of [the] defendant's uncharged misconduct, both when 

the evidence is first presented and again as part of the final jury charge.'" State 

v. Garrison, 228 N.J. 182, 200 (2017) (first alteration in original) (quoting State 

v. Rose, 206 N.J. 141, 161 (2011)). Here, we agree that the judge's failure to 

provide a limiting instruction after the evidence was presented and as part of the 

final charge was a mistake.

However, the inquiry does not end there. We must next consider whether 

this mistake constitutes plain error requiring the reversal of defendant's 

convictions. When, as here, a defendant fails to object at trial, we review for 

plain error and "disregard any alleged error 'unless it is of such a nature as to 

have been clearly capable of producing an unjust result.'" State v. Funderburg, 

225 N.J. 66, 79 (2016) (quoting R. 2:10-2). The error must have been "sufficient 

to raise a reasonable doubt as to whether the error led the jury to a result it 

otherwise might not have reached." State v. McGuire, 419 N.J. Super. 88, 106-

07 (App. Div. 2011) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)). 

"In addition, any finding of plain error depends on an evaluation of the 

overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 

(2006). "Convictions after a fair trial, based on strong evidence proving guilt 

beyond a reasonable doubt, should not be reversed because of a technical or 
12 A-4795-17T3

evidentiary error that cannot have truly prejudiced the defendant or affected the 

end result." State v. W.B., 205 N.J. 588, 614 (2011). 

Applying these standards, we are satisfied that the judge's mistake was 

clearly incapable of producing an unjust result. The text messages contained 

foul language and showed defendant was angry that Jackson was having a 

relationship with another man. But, contrary to defendant's contention, the 

messages did not indicate defendant was predisposed to commit a crime.

Moreover, the State presented substantial, if not overwhelming, evidence 

that defendant killed the victim. The police obtained surveillance video of 

defendant and the victim at the boathouse. Defendant's car was also captured 

on surveillance footage entering an access road near where defendant used to 

work with a passenger, and leaving a few minutes later without one. Defendant's 

tire had a scrape consistent with having struck a manhole cover found near the 

victim's body. Defendant twice tried to turn himself in to the police on the night 

of the murder and finally did so the day after the police searched his apartment, 

garage, and car.

Given this strong evidence of defendant's guilt, we conclude that any error 

resulting from the judge's failure to give a limiting instruction was harmless 

under the circumstances of this case.
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IV.

Defendant next argues for the first time on appeal that the prosecutor made 

comments during her summation that were not based upon the trial evidence. 

This argument lacks merit.

Defendant asserts that the prosecutor improperly read from a letter 

defendant sent to Jackson that was not introduced in evidence. Defendant also 

alleges that the record did not support the prosecutor's statements that defendant 

knew he lost Jackson's phone at the murder scene, had time to hide the gun and 

change clothes before going to the police station, and terrorized the victim "in 

her final moments." In this regard, defendant argues that the prosecutor 

"inflamed" the jurors by asking them whether they thought Jackson attempted 

to shield herself with her hand when defendant shot her. Defendant also 

complains that the prosecutor stated the trial was a search for the truth. Defense 

counsel did not object to any of these remarks.

Prosecutorial misconduct is not a basis for reversal unless the conduct 

"was so egregious that it deprived [the] defendant of a fair trial." State v. 

DiFrisco, 137 N.J. 434, 474 (1994). Considerable leeway is afforded to 

prosecutors in presenting their arguments at trial "as long as their comments are 

reasonably related to the scope of the evidence presented." State v. Frost, 158 
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N.J. 76, 82 (1999). Thus, "[i]t is not improper for the prosecution to suggest 

that the defense's presentation was imbalanced and incomplete." State v. 

Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014) (quoting State v. 

Timmendequas, 161 N.J. 515, 593 (1999)). However, "'[a] prosecutor is not 

permitted to cast unjustified aspersions' on defense counsel or the defense." 

Frost, 158 N.J. at 86 (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. 

Div. 1991)).

To determine if the alleged misconduct was sufficiently egregious to 

warrant reversal, the appellate court "must consider 'whether defense counsel 

made a timely and proper objection, whether the remark was withdrawn 

promptly, and whether the court ordered the remarks stricken from the record 

and instructed the jury to disregard them.'" Patterson, 435 N.J. Super. at 508 

(quoting State v. Wakefield, 190 N.J. 397, 438 (2007)). As a general rule, a 

remark will not be considered prejudicial if no objection was made. State v. 

R.B., 183 N.J. 308, 333 (2005) (quoting Frost, 158 N.J. at 83). "The failure to 

object suggests that defense counsel did not believe the remarks were prejudicial 

at the time they were made. The failure to object also deprives the court of an 

opportunity to take curative action." Ibid. (quoting Frost, 158 N.J. at 84).
15 A-4795-17T3

Applying these standards, we are satisfied that none of the prosecutor's 

comments deprived defendant of a fair trial. Contrary to defendant's assertion, 

defendant's letter was read to the jury by Sergeant Anastasio Anastasatos. 

Therefore, it was entirely proper for the prosecutor to refer to it in her 

summation.

The prosecutor's remarks about defendant losing the victim's phone and 

having time to hide the gun and change his clothes were fair comment on the 

evidence presented and in no way denied defendant's right to a fair trial. 

Similarly, because Jackson was shot from very close range in the hand and her 

head, the prosecutor's comment that she may have been cowering and trying to 

shield herself when she was shot was squarely based on the record evidence.

Finally, defense counsel made the following statement to the jury during 

his summation: "Now, there's often couching of things with a search for the 

truth, and the truth here is the State has failed to meet its burden." In responding 

to this comment during her closing argument, the prosecutor stated, "[t]he 

defendant wants you to believe that this is about a lack of proof or search for 

doubt, and I submit to you that's not why we're here. This trial is about a search 

for the truth." Given "the context in which they were given," the prosecutor's 

remark "did no more than balance the scales." State v. Munoz, 340 N.J. Super. 
16 A-4795-17T3

204, 216 (App. Div. 2001). In addition, immediately after making this comment, 

the prosecutor emphasized that "every piece of evidence . . . will prove that this 

defendant is guilty beyond a reasonable doubt – any reasonable doubt . . . . " 

Therefore, this comment was also not capable of producing an unjust result.

V.

Defendant next argues in Point IV that the trial judge erred by denying his 

motion to suppress the results of the warrantless search of his garage because 

the police did not "inadvertently" discover defendant's car in the garage and, as 

a result, the search could not be justified under the plain view exception to the 

warrant requirement. This argument also lacks merit.

As the trial judge found in his September 25, 2017 written decision 

denying defendant's suppression motion, defendant rented one-half of a two-car 

garage. "Each bay of the garage had its own overhead door. There was no 

interior wall dividing the garage space. Accordingly, if one were to access one 

of the bays, the contents of the other would be plainly visible."

Before entering the garage, the police obtained the written consent of the 

tenant who owned the other half of the structure. Based upon this valid consent, 

the police were not required to obtain a warrant before entering the tenant's side 

of the garage. State v. Lamb , 218 N.J. 300, 315 (2014) (making clear that both 
17 A-4795-17T3

"[f]ederal and New Jersey courts recognize the consent to search exception to 

the warrant requirement") (citations omitted).

As the judge stated in denying defendant's motion to suppress, 

[T]he individual who consented to the search had legal 

access to the shared garage. She had full right and 

authority to allow the police into her portion of the 

garage. Defendant's portion was plainly visible from 

her portion. The inherent lack of privacy in this 

arrangement was readily apparent to [d]efendant. In 

addition, the officers did not exceed the scope of the 

consent to search as there is no evidence, or even 

argument, that they entered [d]efendant's space prior to 

the warrant for same being issued.

On appeal, defendant does not dispute that the police properly entered the 

garage with the consent of the other tenant. However, he now argues that the 

results of the search should have been suppressed because the plain view 

exception to the warrant requirement did not apply because the discovery of 

defendant's car was not inadvertent. Initially, we note that because the search 

was valid under the consent exception to the warrant requirement, the State did 

not have to also demonstrate that the plain view exception applied. 

Nevertheless, we will briefly address the issue. 

The plain view exception to the warrant requirement has three elements:

(1) "the police officer must be lawfully in the viewing 

area"; (2) "the officer has to discover the evidence 

'inadvertently,' meaning that he did not know in 
18 A-4795-17T3

advance where evidence was located nor intend 

beforehand to seize it"; and (3) "it has to be 

'immediately apparent' to the police that the items in 

plain view were evidence of a crime, contraband, or 

otherwise subject to seizure."[1]

[State v. Reininger, 430 N.J. Super. 517, 535-36, (App. 

Div. 2013) (quoting State v. Bruzzese, 94 N.J. 210, 236 

(1983)).]

Defendant concedes that prongs one and three of the plain view exception 

were satisfied because the police entered the garage with the permission of the 

other tenant, and it was immediately apparent that defendant's car, which had 

been seen on the surveillance video, was evidence of a crime. However, 

defendant argues that the officers expected to find defendant's car in the garage 

and, therefore, the "inadvertent discovery" prong of the test was not met. We 

disagree.

The record reflects that the police had defendant's apartment under 

surveillance, and he was not home. They did not know defendant's whereabouts 

or whether he was using his car. Under those circumstances, the officers were 

clearly not certain that the car would be in defendant's garage. Therefore, their 

discovery of the car was "inadvertent" under the then-governing case law.

1

 On November 15, 2016, our Supreme Court held prospectively "that an 

inadvertent discovery of contraband or evidence of a crime is no longer a 

predicate for a plain-view seizure." State v. Gonzales, 227 N.J. 77, 82 (2016).
19 A-4795-17T3

VI.

In Point V, defendant argues that his sentence was excessive because the 

trial judge improperly applied the aggravating factors. Again, we disagree.

Trial judges have broad sentencing discretion as long as the sentence is 

based on competent credible evidence and fits within the statutory framework. 

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider 

"any relevant aggravating and mitigating factors" that "are called to the court's 

attention" and "explain how they arrived at a particular sentence." State v. Case, 

220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid 

substituting our judgment for the judgment of the trial court. Id. at 65. 

We are satisfied the judge made findings of fact concerning aggravating 

factors that were based on competent and reasonably credible evidence in the 

record, and applied the correct sentencing guidelines enunciated in the Code. 

Accordingly, we discern no basis to second-guess the sentence.

VII.

Finally, defendant correctly contends in Point VI that the judge should not 

have imposed monetary fines upon him for count three because that count 
20 A-4795-17T3

merged into the first-degree murder conviction under count one.2 Therefore, we 

remand for the entry of an amended Judgment of Conviction removing these 

fines.

VIII.

In sum, we affirm defendant's convictions. However, we remand to the 

trial court for the entry of an amended Judgment of Conviction removing the 

fines imposed for count three. We otherwise affirm defendant's sentence. We 

do not retain jurisdiction. 

2

 The State agrees that these fines should not have been assessed.