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State v. Rush

October 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STANLEY RUSH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-03-1001.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 30, 2009

Before Judges Parrillo and Lihotz.

Defendant Stanley Rush appeals from the denial of his petition for post-conviction relief (PCR) without benefit of an evidentiary hearing. On appeal, he raises the following points for our consideration:

POINT I THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN RULING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN POST-CONVICTION RELIEF.

(A) THE COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED WAS CONTRARY TO THE CRITERIA CONTROLLING R. 3:22-12 AND THE "EXCUSABLE NEGLECT" DOCTRINE.

POINT II TRIAL COUNSEL'S FAILURE TO INFORM THE DEFENDANT ABOUT THE MANDATORY 5 YEAR PERIOD OF PAROLE SUPERVISION AFTER HIS RELEASE FROM JAIL SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

(A) APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON APPEAL.

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant, along with two others, was charged with numerous acts of juvenile delinquency in connection with the shooting- death of a car-jacking victim. Following a waiver hearing, the State's motion to transfer jurisdiction to the Law Division for adult prosecution, N.J.S.A. 2A:4A-26, was granted following a waiver hearing. A multi-count indictment issued charging ...


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