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State v. Harris

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY ABDQ HARRIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-04-00546.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 14, 2010

Before Judges Cuff and Payne.

Defendant Gary Abdq Harris appeals from a March 13, 2009 order that denied his motion to vacate an illegal sentence. Defendant is serving a thirty-five-year term of imprisonment following his conviction in 1996 of first degree kidnapping, second degree kidnapping, aggravated sexual assault, sexual assault, and two counts of terroristic threats.

In this appeal, defendant presents the following arguments:

POINT I

APPELLANT IS ENTITLED TO THE RIGHT OF TRIAL BY JURY AND DUE PROCESS WHICH WERE ABRIDGED BY TRIAL COURTS MISCONDUCT

POINT II

APPELLANT WAS DEPRIVED OF HIS RIGHT TO TRIAL BY JURY AND FAIR TRIAL UPON A VALID INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT

POINT III

APPELLANT IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

POINT IV

TRIAL COUNSEL WS INEFFECTIVE FOR FAILING TO FILE ALL APPROPRIATE MOTIONS

POINT V

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE THE CASE

POINT VI

CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL

POINT VII

ALL POINTS RAISED BY DEFENDANT IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS BRIEF

Following the return of the jury verdict, defendant filed a motion for a new trial, which was denied. This court affirmed the conviction on January 5, 1998, A-7683-95; the Supreme Court denied certification, 156 N.J. 386 (1998). Defendant filed a petition for post-conviction relief on March 17, 1999, which was denied by order dated June 6, 2000. This court affirmed on October 29, 2002, A-6184-99; the Supreme Court denied certification, 176 N.J. 279 (2003).

Defendant filed another post-judgment application in 2007. By order dated April 23, 2007, a judge denied all relief. On appeal, defendant argued that his constitutional rights had been violated "due to his having been tried without indictment or grand jury." This court affirmed on June 11, 2008, A-5022-06; the Supreme court denied certification, 196 N.J. 596 (2008).

We have reviewed the briefs submitted by defendant. The common thread through the arguments advanced in this appeal and in his prior appeals is his contention that the indictment was amended improperly at some time after the grand jury handed-up the indictment and this improper amendment tainted the trial and renders his sentence illegal. These arguments have been addressed and rejected on several occasions, and are, therefore, barred. R. 3:22-5. We also find the appeal without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).

Affirmed.

20100427

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