STATE OF NEW JERSEY v. HAMDY MAHMOUD ATIA (2011)

Following a trial de novo in the Law Division, defendant Hamdy Mahmoud Atia appeals from an order dated June 30, 2009, finding him guilty of unauthorized solicitation of business at Newark Liberty International Airport (Newark Airport or the airport), in violation of N.J.S.A. 32:1–146.6(1)(b).  For the reasons that follow, we affirm.

This matter was tried in Newark Municipal Court on April 29, 2008.   Frank Sabatino, the “commanding officer of the Port Authority Police at Newark Airport,” testified that at 2:00 p.m. on August 30, 2007, he was monitoring pedestrian traffic “inside Door No. 10 on the arrivals level of Terminal B.” Sabatino observed defendant, who was approximately five feet away from him, approach four separate travelers and ask, “ ‘[D]o you need a taxi?’ ”   All four individuals declined.   Sabatino further testified that defendant was not carrying anything, such as a sign, and did not appear to be looking for a specific person.   Accordingly, Sabatino advised defendant “he was under arrest for soliciting transportation for hire.”

Defendant, who was represented by counsel, was the only other witness to testify at trial.   He denied soliciting business and claimed he did not have a “car or taxi or limousine” with him.   Defendant stated he was at the airport because he was scheduled to fly to Frankford, Germany at 9:50 p.m. that evening.   Copies of an airline ticket and flight confirmation were submitted into evidence, but neither document specified the time defendant had purchased the ticket.

According to defendant, he arrived at the airport at approximately 1:45 p.m. in an attempt to get on an earlier flight, and he had just purchased a coffee when Sabatino confronted him.   Additionally, defendant stated that although he was going to Germany for two weeks, he only had a “[s]mall bag” with him because he was a “residen[t] of Germany.”

The municipal court judge “did not find the testimony of the defendant to be credible.”   Specifically, the judge stated that defendant may have purchased the ticket after he was arrested.   The judge further found it implausible that defendant would be traveling to Germany without any luggage.   In contrast, the judge determined that Sabatino testified “credibly and concisely” and concluded that defendant was guilty of soliciting business at the airport without the Port Authority's prior authorization.   Defendant was fined $750 and ordered to pay court costs of $33.

Defendant filed a pro se notice of appeal with the Law Division on May 22, 2008.¹  Although no briefs were filed with the Law Division, defendant was represented by counsel at oral argument on June 30, 2009.   After reviewing the trial transcripts, the Law Division judge found that Sabatino was more credible than defendant and concluded there was “sufficient testimony” to support the conviction.   The same fine and court costs were imposed.

On appeal to this court, defendant presents the following arguments:

POINT I

THE SUPERIOR COURT OF NEW JERSEY, CRIMINAL DIVISION, SHOULD NOT HAVE DECIDED THE APPEAL OF JUNE 30, 2009, AND THE MATTER SHOULD BE OVERTURNED OR REMANDED TO THE SUPERIOR COURT.

POINT II

IF THE COURT FINDS THAT THE MATTER SHOULD NOT BE REMANDED TO THE SUPERIOR COURT, DEFENDANT'S CONVICTION SHOULD BE OVERTURNED BECAUSE HE HAS MERITORIOUS ARGUMENTS.

A. MR. ATIA'S CONVICTION SHOULD BE OVERTURNED BECAUSE THE STATE OF NEW JERSEY FAILED TO PROVE THE ELEMENTS OF SOLICITATION.

B. MR. ATIA'S CONVICTION SHOULD BE OVERTURNED BECAUSE THE MUNICIPAL COURT ALLOWED THE ADMISSION OF HEARSAY EVIDENCE AT TRIAL.

C. THE MUNICIPAL COURT'S FINDINGS WERE UNREASONABLE BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT ITS FINDINGS AND THEREFORE, MR. ATIA'S CONVICTION SHOULD BE OVERTURNED.

D. THE CONDUCT OF MR. ATIA'S ATTORNEYS RISES TO THE LEVEL OF INEFFECTIVE ASSISTANCE OF COUNSEL.

After considering these arguments in light of the record and the applicable law, we conclude that they are clearly without merit, Rule 2:11–3(e)(2), and we affirm substantially for the reasons stated by Judge DeSoto on June 30, 2009.   We add only the following comments.

N.J.S.A. 32:1–146.6 provides that:

(1) No person, unless duly authorized by the Port Authority, shall, in or upon any area, platform, stairway, station, waiting room or any other appurtenance of an air or bus terminal, owned or operated by the Port Authority, or in or upon any area, bulkhead, dock, pier, wharf, warehouse, building, structure, shed, waiting room or any other appurtenance of a marine terminal, owned or operated by the Port Authority:

․

(b) solicit any business or trade, including the carrying of baggage for hire;  the shining of shoes or bootblacking․

[ (Emphasis added).]

Pursuant to N.J.R.E. 201(b)(3), we may take judicial notice of facts “capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned.”   In this case, we take judicial notice that Newark Airport is operated by the Port Authority.   See N.J.S.A. 32:1–1 to –24;  N.J.S.A. 32:1–35.1 to –35.24;  see also State v. Stovall, 170 N.J. 346, 351 (2002) (stating that the Port Authority “is charged with the operation of” Newark Airport);  Zamel v. Port of New York Auth., 56 N.J. 1, 2 (1970) (stating that Newark Airport “is operated by” the Port Authority).

Solicitation is defined as “[t]he act or an instance of requesting or seeking to obtain something;  a request or petition.”   Black's Law Dictionary 1427 (8th ed.2004).   Here, the Law Division discounted defendant's testimony and credited Sabatino's statements that defendant asked four separate individuals if they needed a taxi.   This is all that is required to establish solicitation.   Contrary to defendant's arguments, it is immaterial that there “was no discussion of price for the alleged taxi service”;  that “the State did not submit any evidence that defendant owned a taxi”;  or that Sabatino's testimony included the responses of the persons solicited.

Based upon our independent review of the record, we are satisfied there is substantial credible evidence to support the Law Division's conclusion that defendant is guilty of unauthorized solicitation of business at Newark Airport.   See Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:23–8 (2011) (“On appeal from the Law Division's de novo retrial and disposition, the Appellate Division applies the substantial evidence rule to the Law Division's proceedings.”).

Affirmed.

FOOTNOTES

FN1. Counsel who had represented defendant at the municipal court trial was relieved on May 9, 2008..  FN1. Counsel who had represented defendant at the municipal court trial was relieved on May 9, 2008.

PER CURIAM