July 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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:
THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
THE PROSECUTOR'S ARGUMENTS IN CLOSING AMOUNTED TO IMPROPER BURDEN SHIFTING AND VOUCHING FOR HER WITNESS.
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:
DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE AFFIDAVIT ON WHICH THE SEARCH WARRANT WAS BASED CONTAINED A MATERIALLY FALSE STATEMENT. (PARTIALLY RAISED BELOW).
THE TRIAL COURT'S REMOVAL OF ONE JUROR AND FAILURE TO REMOVE ANOTHER VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY. (PARTIALLY RAISED BELOW).
THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE [184 N.J. 458 (2005)].
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.
In his supplemental pro se brief, defendant raised five additional arguments:
THE SEARCH WARRANT WAS OBTAINED IN A DECEPTIVE AND ILLEGAL MANNER, THUS AS A RESULT, ANY AND ALL EVIDENCE OBTAINED THROUGH THAT WARRANT IS "FRUIT OF THE POISONOUS TREE" AND MUST BE SUPPRESSED.
DEFENDANT'S INDICTMENT WAS OBTAINED UNCONSTITUTIONALLY, AND AS SUCH THE INDICTMENT IS FLAWED. THEREFORE AS A MATTER OF LAW, THE INDICTMENT, AND SUBSEQUENT CONVICTION MUST BE VACATED IN THE INTERESTS OF JUSTICE.
PROSECUTOR MISCONDUCT HAS OCCURRED PRIOR TO TRIAL, AND THROUGH THE PRESENT FOR PROSECUTOR'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE.
THE TRIAL RECORD CLEARLY, AND IRREFUTABLY DEMONSTRATES [THAT] SAMIR AYOUB RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN CONTRAVENTION OF THE 6TH AND 14TH AMENDMENTS TO THE CONSTITUTION.
DEFENDANT SAMIR AYOUB RECEIVED INEFFECTIVE OF TRIAL AND APPELLATE COUNSEL IN CONTRAVENTION OF THE 6TH AND 14TH AMENDMENTS OF THE CONSTITUTION.
We affirmed defendant's convictions, but remanded for resentencing. State v. Ayoub, No. A-2829-03 (App. Div. July 14, 2006), and the Supreme Court denied certification, 189 N.J. 647 (2007). The State's proofs were summarized in our prior opinion and need not be repeated here. The trial court re-imposed the same sentences on June 16, 2007. Defendant's petition for PCR was filed on June 22, 2007. An initial brief and a supplemental brief were also filed in support of defendant's application, which was heard by the court on August 13, 2010. During the hearing, the court noted that defendant raised the following points:
COUNSEL'S FAILURE TO ARRANGE FOR TESTIMONY OF AN EXCULPATING WITNESS WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
THE DEFENDANT DECIDED NOT TO TESTIFY BECAUSE COUNSEL FAILED TO ADVISE HIM THAT HIS RECORD OF CONVICTIONS COULD BE SANITIZED.
[DEFENDANT] IS ENTITLED TO A POST-CONVICTION RELIEF HEARING TO SHOW HIS CONSTITUTIONAL RIGHTS WERE INFRINGED BECAUSE HE WAS NOT PROVIDED WITH AN INTERPRETER.
THE COURT'S FAILURE TO INCLUDE AN INSTRUCTION TO THE JURY ON THE PRESUMPTION OF INNOCENCE WHEN IT GAVE ITS INSTRUCTIONS ON THE CERTAIN PERSON OFFENSE DEPRIVED [DEFENDANT OF] HIS DUE-PROCESS RIGHTS.
[DEFENDANT] EXPERIENCED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS LAWYER FAILED TO KEEP HIM ADIVSED OF WHAT WAS GOING ON DURING THE TRIAL.
THE TRIAL COURT DIRECTED THE VERDICT FOR THE CERTAIN PERSONS COUNT; THE JURY WAS TOLD DURING THE CERTAIN PERSONS INSTRUCTIONS THAT IT NEED NOT FIND POSSESSION BEYOND A REASONABLE DOUBT; THE JURY WAS TOLD THAT IN NO UNCERTAIN TERMS DURING THE CERTAIN PERSONS CHARGE TO DISREGARD ITS PRIOR VERDICT; AND, IN INSTRUCTING THE JURY ON THE CERTAIN PERSONS COUNT, IT WAS ERROR TO REMIND THE JURY THAT IT HAD ALREADY FOUND BY [ITS] PRIOR VERDICT THAT [DEFENDANT] HAD POSSESSED THE WEAPON.
THE DEFENDANT [CLAIMS] THAT THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT AND THE WARRANT ITSELF FAILED TO DESCRIBE WITH PARTICULARITY THE PLACE TO BE SEARCHED AND THE POLICE FAILED TO SHOW THAT THERE WAS PROBABLE CAUSE FOR ISSUANCE OF THE WARRANT IN VIOLATION OF [DEFENDANT'S] CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT.
For the reasons set forth in a comprehensive oral decision, the PCR court denied defendant's petition in its entirety. On appeal from the denial of his petition, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE TRIAL COURT PERMITTED EXPERT TESTIMONY THAT WENT WELL BEYOND THE PERMISSIBLE SCOPE OF SUCH TESTIMONY, AND AMOUNTED TO OPINION AS TO GUILT IN THE PARTICULAR CASE, AND APPELLATE COUNSEL AND PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE, U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (PARTIALLY RAISED BELOW).
A. PERMITTING THE EXPERT OPINION TESTIMONY OF DETECTIVE FRASCELLA AS TO THE ULTIMATE ISSUE OF DEFENDANT'S GUILT OF THE OFFENSES CHARGED INVADED THE FACT-FINDING PROVINCE OF THE JURY.
B. PCR AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE THIS CLAIM.
REPEATED REFERENCES TO THE SEARCH WARRANT AT TRIAL DEPRIVED THE DEFENDANT OF A FAIR TRIAL, AND APPELLATE COUNSEL AND PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE. (PARTIALLY RAISED BELOW).
REVERSAL IS REQUIRED BY THE CUMULATION OF PREJUDICIAL ERRORS. (NOT RAISED BELOW).
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE SEARCH WARRANT WAS CONSTITUTIONALLY DEFICIENT, U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PRO SE PETITION AND BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF.
Additionally, in a pro se supplemental brief defendant argues:
THE PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSELS, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
A. PETITIONER WAS PREJUDICED BECAUSE TRIAL AND APPELLATE COUNSEL NEGLECTED TO ADVANCE HIS CLAIM(S) AND BEING AS THOUGH, HE HAD AT LEAST ESTABLISHED A PRIMA FACIE CLAIM THAT HE WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL THIS COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON HIS ISSUES.
B. PETITIONER CONTENDS THAT HE WAS MISADVISED BY TRIAL COUNSEL AS TO THE PENAL CONSEQUENCES THAT HE WOULD FACE BY PROCEEDING WITH A TRIAL DUE TO THE LANGUAGE BARRIER.
Based on our examination of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.
Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. "First, the defendant must show that counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must show that the deficient performance prejudiced the defense" by demonstrating "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of [success]." Id. at 463; see also State v. Marshall, 148 N.J. 89, 158 ("The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief") cert denied 522 U.S. 850 118 S.Ct. 140 139 L.Ed.2d 88 (1997)
In this case Judge Edward M Neafsey correctly concluded that defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz test and we affirm the order denying PCR substantially for the reasons he stated on August 13 2010 We also conclude that none of the errors alleged by defendant individually or cumulatively warrant the granting of a new trial State v Orecchio 16 N.J. 125 129 (1954)