NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2748-06T42748-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALSHAMOON THOMPSON,

Defendant-Appellant.

________________________________

Submitted: December 10, 2008 - Decided:

Before Judges Cuff, C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 96-02-562.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

C.L. MINIMAN, J.A.D.

Defendant Alshamoon Thompson appeals from the denial of his first petition for post-conviction relief (PCR) in connection with his 1997 convictions for first-degree murder, first-degree attempted murder, second-degree aggravated assault, third-degree unlawful possession of a handgun, possession of a handgun for an unlawful purpose, and possession of a silencer. Defendant's aggregate sentence is life in prison plus twenty-five years with a forty-year period of parole ineligibility. We affirmed his conviction and sentence on June 23, 1999. State v. Thompson, No. A-406-97 (App. Div. June 23, 1999), certif. denied, 162 N.J. 199 (1999).

Defendant filed his PCR petition on July 31, 2000, alleging ineffective assistance of trial and appellate counsel and vari­ous errors by the trial judge. Specifically, defendant raised the following issues in his verified petition:

POINT I - THE DEFENDANT-PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL [SIC] FAILURE TO REQUEST EXPERT TESTIMONY CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.

POINT II - THE LOWER COURT ERRED; (a) DENY­ING REQUEST FOR MISTRIAL; (b) FAIL [SIC] TO VIRE [SIC] DIRE [SIC] THE JURY, CONCERNING THE STATE WITNESS TIM WRIGHT, KNOWLEDGE OF NORTHERN STATE PRISON, AND KNOWLEDGE OF DEFENDANT DENIED OF THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III - THE DEFENDANT-PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV - THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT-PETITIONER BE RETRIED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

Although counsel was assigned to represent defendant, the attorney did not file a PCR brief on his behalf until June 2006 and never consulted with him. In that brief, she raised the following issues:

POINT I - PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

THE ROOTS OF THE RIGHT TO EFFECTIVE COUNSEL AND THE APPLICABLE STANDARD OF REVIEW

a. The Standards Set Forth In Cronic And Strickland

b. Counsel's Responsibility To The Accused

c. Preparedness Of Counsel Is The Linchpin

i. Consultations With The Accused

ii. Legal Research

POINT II - PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT III - PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING TO ESTABLISH HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

Defendant's application was argued and denied on June 26, 2006, without a plenary hearing. On July 13, 2006, defendant sought reconsideration of this denial. In a supporting brief, defendant raised the following issues:

POINT I - STATE MISIDENTIFICATION OF A BLOOD TEST CONDUCTED ON THE STATE'S CHIEF WITNESSES RESULTED IN PLAIN ERROR IN VIOLA­TION OF N.J.S.A. [SIC] ART. 1 PAR. 10 & THE DUE PROCESS CLAUSE THAT IS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT [SIC] OF THE UNITED STATES CONSTITUTION.

POINT II - DEFENDANT SHOULD BE GRANTED A NEW TRIAL BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION; IN ADDITION TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

A. Trial counsel failed to object to the state's incorrect identifica­tion of a critical scientific test, and obtain his own expert witness.

B. Trial counsel failed to request a mistrial after the state clearly withheld evidence on two separate occasion[s].

B-1. The statements [verbal] by Kenya Johns to the prosecutor prior to trial that she didn't use illegal drugs.

B-2. The telephone records of Kenya Johns.

C. Trial counsel failed to object to the in-court and out of court identification of Kenya Johns and Timothy Wright and the suggestive nature of their identification.

POINT III - THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL AS WELL AS ON POST-CONVICTION RELIEF IN VILATION [SIC] OF N.J. CONST. ART. I PAR. 10 AS WELL AS UNITED STATES CONSTITUTION AMENDMENT 6.

A. DIRECT APPEAL COUNSEL.

B. POST-CONVICTION COUNSEL.

This application, too, was denied on November 9, 2006. This appeal followed on January 18, 2007. Defendant argues that we should remand the matter for a fresh evidentiary hearing on his claims of ineffective assistance of counsel.

On August 7, 2007, Deborah Menzel, Supervisor of Court Reporters, certified with respect to the June 26, 2006, and November 9, 2006, hearings that transcriptions could not be made because the proceedings were not listed on "CourtSmart" and no tapes had been turned in to the Transcript Unit. Accordingly, we remanded the matter to the PCR judge on August 27, 2007, for reconstruction of the record pursuant to Rule 2:5-3(f) within sixty days of our order. The PCR judge did not comply with our deadline, reconstructing the record on March 10, 2008. When he did so, he proceeded ex parte after receiving copies of the notes made by both attorneys. He briefly discussed the evidence on which defendant's conviction was based and then addressed the PCR application as follows:

For [defendant] to suggest as the gravamen of the . . . ineffectiveness of counsel, because of the attempt undoubtedly through [defendant] to his attorney to establish that [the surviving victim] had a criminal record, a drug related, that she was on drugs and could not make an identification, frankly affects ones common sense.

As the [c]ourt indicated from its notes at the hearing in the presence of . . . the defendant, the [c]ourt would not allow the criminal record of the victim, but did allow the attorney to question whether or not she was under the influence of drugs at the time of the crime.

The fact that it was not pursued fur­ther by counsel and did not retain an expert, is certainly not grounds under those compelling uncontroverted facts in the case to cause a new trial with this defendant.

The [c]ourt recollects clearly, not­with­standing the passage of years, the identification and the chilling testimony of [the surviving victim]. And if she were under the influence of drugs at that time, just using common sense, she was clearly able to make identifications of the salient facts of the case.

Under the Strickland standard, the [c]ourt rejected [defendant]'s petition . . . . [Defendant] testified that [the surviv­ing victim] did not know him prior to the incident and, therefore, . . . she was drug related and couldn't identify him is ridicu­lous. She clearly knew him prior to the incident. And there's no expert that the [c]ourt could imagine who could render a favorable opinion in support . . . of the defendant's position with regard to the identification of [the surviving victim].

The counsel for the hearing stated that an expert was retained to examine the medi­cal records of [the surviving victim], and the expert could not render a favorable opinion. As far as the [c]ourt is con­cerned, that should be dispositive of the decision. That is the end of the reconstruction. Thank you.

The procedure employed by the judge to reconstruct the record did not comply with Rule 2:5-3(f), which provides:

If no verbatim record was made of the proceedings before the court . . . from which the appeal is taken, the appellant shall, within 14 days of the filing of the notice of appeal, serve on the respondent a statement of the evidence and proceedings prepared from the best available source, including the appellant's recollection. The respondent may, within 14 days after such service, serve upon the appellant any objec­tions or proposed amendments thereto. The appellant shall thereupon forthwith file the statement and any objections or proposed amendments with the court . . . from which the appeal is taken for settlement and within 14 days after the filing of the same the court . . . shall settle the statement of the proceedings and file it with the clerk thereof, who shall promptly provide the parties with a copy. If a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court of agency from which the appeal was taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript.

We have explained that "it becomes the duty of the trial court as a matter of due process entitlement of the parties to reconstruct the record in a manner that, considering the actual circumstances, provides reasonable assurances of accuracy and completeness." State v. Izaguirre, 272 N.J. Super. 51, 57 (App. Div.) (citation omitted) (emphasis added), certif. denied, 137 N.J. 167 (1994). In Izaguirre, we found:

The procedure so thoughtfully crafted and implemented by Judge Wecker was manifestly designed to achieve that goal. The exten­sive