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N.J.S.A. 2C:35-10a(1); and third degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3). Both were third degree offenses. Defendant pled guilty to third degree possession of cocaine in exchange for a recommendation that he receive long-term in-patient drug rehabilitation. ">

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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0358-09T4

STATE OF NEW JERSEY, Plaintiff-Respondent,

vs.

ALFRED R. BISHOP,

Defendant-Appellant.

__________________________________ January 3, 2011 Submitted: November 10, 2010 - Decided:

Before Judges Cuff and Fisher.

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On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-09-1827; Accusation No. 05-06-1364.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Alfred R. Bishop appeals from the denial of his petition for post-conviction relief (PCR). He is serving a twenty-four year term of imprisonment subject to a No Early Release Act 85% parole ineligibility term for aggravated manslaughter, terroristic threats, and unlawful possession of a weapon (a handgun), and a consecutive three-year term for possession of a controlled dangerous substance (CDS). His aggregate term is twenty-seven years imprisonment; twenty years, four months and twenty-four days to be served without parole.
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Between 2004 and early 2005, the State charged defendant with criminal offenses twice. First, the State charged defendant with possession of a CDS (cocaine), contrary to N.J.S.A. 2C:35-10a(1); and third degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3). Both were third degree offenses. Defendant pled guilty to third degree possession of cocaine in exchange for a recommendation that he receive long-term in-patient drug rehabilitation. In 2005, defendant pled guilty to all charges in an accusation: aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a; terroristic threats, contrary to N.J.S.A. 2C:12-3a; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The events giving rise to this accusation occurred on March 29, 2005. On March 29, 2005, defendant was involved in three episodes that form the basis for the charges in the accusation. At that time, defendant had pled guilty to the 2004 CDS indictment but remained free on bail pending sentence. At 2:30 p.m., Shaquanna Smith was walking with her thirteen year old sister in Atlantic City. Smith's sister noticed defendant in the backyard of a house and informed Smith that defendant often followed her as she walked home from school. Defendant saw them and called out to Smith's sister to
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come and talk to him. Smith informed him his sister would not do so. In response, defendant began to follow the young women. Smith informed defendant again to leave her sister alone. Defendant replied he "[could] mess with whoever he want to," and pulled a gun from his pocket. The girls continued to walk, defendant lowered the weapon, and the encounter ended. Later that day, defendant approached Kaneisha Oglesby and her two cousins on the same block. Defendant was riding his bike. Holding a gun in his hand, he directed the three girls to get on the ground. Defendant shot the gun in the air and rode to the back of a house. Finally, just before midnight, defendant arrived at a house where a girl he knew lived with her sisters. Another teenage girl, Elisa Hernandez, was visiting at that time. During this visit, defendant shot Hernandez in the face. She died that evening. There are different versions of the events leading up to the shooting. Defendant admitted he shot the victim. According to him, the victim asked him to show her how to use his gun. Standing close enough to the victim that he could touch her, defendant showed her how to handle the hammer and the trigger without firing the gun. The second time he demonstrated the manipulation of the hammer and trigger, the gun fired and a bullet hit the victim in the eye. A young woman present that evening offered a different version of events. Jessica Navarro stated that the victim arrived at the house and took one of defendant's cigarettes. He became angry, pulled out his gun, and told the victim to kiss him. As the victim tried to move defendant's hand, "[defendant] clicked the trigger back and shot her." According to this statement, the gun was only a foot from the victim's face. The pre-sentence report contained the discharge summaries following two mental health admissions in 2003 and 2004. The September 3, 2004 discharge summary reports that defendant felt suicidal after an argument with his girlfriend. The summary also reports "[h]e was out of control during screening." Following a ten-day hospitalization, defendant was discharged with a diagnosis of "[b]ipolar manic" accompanied by marijuana and cocaine abuse. Defendant had also been hospitalized in August 2003. The discharge summary reported that he was "very suspicious, agitated, anxious, preoccupied with paranoia ideas. The patient has some suicidal idea and also the patient has command auditory hallucinations. . . ." On discharge, defendant carried a diagnosis of "[p]sychotic disorder not otherwise specified" and marijuana abuse.

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On appeal, defendant raises the following argument: The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant established at least a prima facie case of ineffective assistance of counsel.

2. At the very least, the trial court erred in rejecting defendant's ineffective assistance claims without conducting an evidentiary hearing.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed.2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed.2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I,

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