STATE OF NEW JERSEY v. HASSAN ABULABAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1453-08T41453-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN ABULABAN,

Defendant-Appellant.

______________________________________

 

Submitted October 21, 2009 - Decided

Before Judges J. N. Harris and Newman.

On appeal before Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 01-04-0743 and 02-02-0354.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (John Cascarano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Hassan Abulaban, appeals from an order denying his petition for post-conviction relief (PCR).

On appeal, defendant contends that the PCR court abused its discretion when it denied an evidentiary hearing to establish an ineffective assistance of counsel claim. The PCR judge, who entertained oral argument on the petition, found no hearing was required because defendant failed to make a prima facie showing to be entitled to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154 (App. Div), certif. denied, 162 N.J. 199 (1999).

The primary issue, which is repeatedly referred to, involved defendant's waiver of his two jury trials and agreeing to be tried by the trial judge without a jury. These trials took place after 9/11, and defendant was concerned that he could not receive a fair trial from a jury because of his Arabic-American ancestry. This issue was raised on direct appeal and rejected by this court because it was without sufficient merit to require discussion in a written opinion, citing Rule 2:11-3(e)(2). State v. Abulaban, No. A-5635-02T3 (App. Div. July 15, 2005) (slip. op. at 7-8), certif. denied, 185 N.J. 390 (2005). Since this issue has previously been decided on direct appeal, it is barred from reconsideration on PCR. R. 3:22-5.

Moreover, to the extent that defendant mentions any other ground that should have been subject to an evidentiary hearing, the PCR judge comprehensively addressed and rejected all of these in his written opinion of July 1, 2008. We affirm substantially for the reasons expressed in Judge Sarkisian's written decision.

 
Affirmed.

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A-1453-08T4

November 10, 2009