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State v. Ayoub

Superior Court of New Jersey, Appellate Division

July 31, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SAMIR AYOUB, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2013

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-10-1345.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (John P. Boyle, Jr., Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Graves and Espinosa.

PER CURIAM

Defendant Samir Ayoub appeals from an August 13, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

A jury convicted defendant of fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count one); three counts of third-degree possession of marijuana with intent to distribute within a school zone, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1) (counts two, four, and seven); fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12) (count three); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count five); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5(b)(11) (count six); second-degree possession of a handgun while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1(a) (count eight); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 2C:21-21(a)(6) and N.J.S.A. 2C:2-6 (count nine). The jury was unable to reach a verdict with respect to count ten, third-degree tampering with a witness, N.J.S.A. 2C:28-5 and N.J.S.A. 2C:2-6. In a second trial before the same jury, defendant was found guilty of second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7(b) (count eleven).[1]

At sentencing on December 12, 2003, the court granted the State's motion to sentence defendant to an extended term as a persistent offender based on his three prior indictable convictions. N.J.S.A. 2C:44-3(a). Following appropriate mergers, the court sentenced defendant to an aggregate extended twenty-year term of imprisonment with ten-and-one-half years of parole ineligibility.

On direct appeal, defendant presented the following arguments:

POINT I
THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT II
THE PROSECUTOR'S ARGUMENTS IN CLOSING AMOUNTED TO IMPROPER BURDEN SHIFTING AND VOUCHING FOR HER WITNESS.
POINT III
THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED TO MORE THAN FOUR YEARS ON COUNT FOUR.

Defendant also submitted the following arguments in a pro se brief:

POINT I
DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE AFFIDAVIT ON WHICH THE SEARCH WARRANT WAS BASED CONTAINED A MATERIALLY FALSE ...

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