Opinion
DOCKET NO. A-4263-10T1
05-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAHMMOUD HASAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-07-1320.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Mahmmoud Hassan appeals from his conviction following trial without a jury on a single-count indictment charging second-degree interference with custody of a child, N.J.S.A. 2C:13-4(a)(1). We affirm.
Defendant and Denise Monroy are the birth parents of a son born in 2005. After a relationship of several years during which they lived in Philadelphia, they amicably separated in 2006, and Monroy moved with their son to Union City, New Jersey. The child lived primarily with Monroy and her family members for the next three years. During that time, defendant and Monroy agreed to a parenting arrangement by which defendant would take the child for one or more weeks at a time to his apartment in Philadelphia. They communicated about exchange of the child and had no difficulties with the arrangement during those years.
In January 2009, defendant and Monroy agreed that their son would stay with defendant for a longer time than usual because Monroy was returning to school and defendant wished to spend more time with the child. According to Monroy's testimony at the trial, she expected that defendant would keep their son for about a month, but the two did not discuss a specific time period. She began to have concerns in February when her attempts to talk to her son on the telephone were unsuccessful. In March, she asked defendant repeatedly to return their son to her, but he made excuses and did not do so. Her last contact with defendant was on April 9, 2009. He reneged on his promise to return the child to her by that date, and he then stopped returning her text messages. She was not able to contact him.
Late at night on April 9, 2009, Monroy drove to defendant's apartment in Philadelphia to get her son, but she found no one there. She communicated with defendant's father and brother but neither would give her information on his whereabouts. The next day, she searched at his place of employment and his gym and learned that defendant had severed contacts with both.
On April 13, 2009, Monroy went to the family court in Hudson County and made an emergent application for custody of the boy. The court left a telephone message for defendant that morning to alert him about Monroy's application and gave him until 1:00 p.m. to respond. The court's second attempt to contact defendant that afternoon was unsuccessful because defendant's phone number had been disconnected. A Family Division judge in Hudson County heard Monroy's emergent application and granted her custody of the boy.
When she returned to Philadelphia with the Hudson County order and attempted to register it with the Pennsylvania court, she learned that defendant had obtained a Pennsylvania court order on April 9, 2009, granting him custody of their son. She had not been notified of the Pennsylvania court proceedings. Defendant's Pennsylvania complaint for custody falsely stated that the boy had been living with him in Philadelphia for several years and that the mother's whereabouts were unknown. When the Pennsylvania court learned of the false information and the New Jersey family court order, it entered an order on April 22, 2009, deferring to the custody decision of the New Jersey court.
The United States Marshall's Service located defendant and the boy on May 5, 2009, at the Philadelphia apartment of defendant's fiancée, where he and the boy had been living. Defendant was arrested and charged with interference with custody. The boy was returned to Monroy.
According to defendant's testimony at trial, he did not return the boy in March 2009 because his arrangement with Monroy was to keep the child until September. Also, Monroy had traveled to Australia in the previous year and had expressed interest in moving there. Defendant claimed he feared that Monroy planned to take their son out of the country permanently. He admitted he had been living at his fiancée's apartment for many months but did not notify Monroy that the boy would be staying there. He said he did not provide the address to Monroy because he wanted to keep his life private. He said he left his job and did not leave a phone number where he could be reached because he wished to "turn a new page."
When he filed for custody in Pennsylvania, defendant did not reveal that Monroy lived in Union City, New Jersey, although he had personally been at her residence many times and had even stayed there overnight just months earlier. His reason for stating that Monroy's whereabouts and address were unknown was that he did not know the street address for her residence. Also, he falsely provided the address of his former apartment to the Pennsylvania court as his home address although he no longer lived there. His reason was that his brother was now living at that address and defendant still received mail there.
By written decision, the trial judge at defendant's criminal trial rejected defendant's attempts to explain his conduct. The judge found that defendant's testimony was not credible and that Monroy's testimony was credible. The judge concluded that defendant had knowingly interfered with Monroy's right to custody and the shared parenting arrangement from April 9, 2009, when he had promised to return the boy, to May 5, 2009, when he and the boy were located. The judge found defendant guilty of the charge and subsequently sentenced him to five years imprisonment, which is the minimum for a second-degree charge. Defendant served a prison term and has been released on parole.
The statute under which defendant was convicted, N.J.S.A. 2C:13-4, makes it a serious crime for one parent to interfere with the custody and parenting rights of another parent. State v. Froland, 193 N.J. 186, 200-01 (2007). The statute provides certain affirmative defenses, including a claim that the parent charged with the offense concealed the child's location because he reasonably believed it to be necessary to protect the child from imminent danger to his welfare, N.J.S.A. 2C:13-4(c)(1), or that the parent did not return the child because he reasonably believed the other parent had consented to his taking and detaining the child, N.J.S.A. 2C:13-4(c)(2).
Basing his argument on appeal on the affirmative defenses of the statute, defendant contends:
BECAUSE THE STATE'S PROOFS DID NOT ESTABLISH THE ELEMENT OF PURPOSE TO DEPRIVE THE OTHER PARENT OF CUSTODY, DEFENDANT, WAS NOT GUILTY OF INTERFERENCE WITH CUSTODY. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS 1, 9, 10.
We find no merit in defendant's arguments. We affirm the court's verdict of guilty for the reasons stated in the thorough and well-reasoned written decision of Judge Lourdes I. Santiago filed on October 21, 2010. We add the following brief comments.
We exercise a limited standard of review from a trial judge's findings of fact and the conclusions that flow from those findings. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Locurto, supra, 157 N.J. at 471; Johnson, supra, 42 N.J. at 161.
Here, Judge Santiago discredited defendant's testimony because he had made no attempt since learning months earlier of Monroy's interest in Australia to resolve his concern, such as by means of a court proceeding to establish the parties' rights to custody and parenting time. Also, he had not previously expressed apprehension about the care of the boy while with Monroy. His actions in covertly attempting to gain custody in a Pennsylvania court and in providing false information in his complaint for custody showed that his intent was to conceal the child's location and prevent Monroy from participating in his custody application.
The judge discussed the requirements of the statutory affirmative defenses and rejected defendant's reliance upon them. Defendant did not notify the police or any other authorities of the child's location within twenty-four hours, as required by N.J.S.A. 2C:13-4(c)(1). In fact, he gave a false address and false information about the custody and parenting time arrangement for the boy preceding his application for custody. Also, he could not support an affirmative defense that Monroy had consented to his keeping the child until September 2009, pursuant to N.J.S.A. 2C:13-4(c)(2), because he acknowledged that she demanded return of the child and he promised to return him no later than April 9, 2009.
There was substantial evidence supporting the trial court's finding of guilty.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION