On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0896.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Graves and Waugh.
Defendant Albert Bowser appeals from an order dated April 7, 2009, denying his petition for post-conviction relief (PCR).
In a three-count indictment, defendant was charged with felony murder, N.J.S.A. 2C:11-3(a)(3); the purposeful or knowing murder of Fred Bush (Bush), N.J.S.A. 2C:11-3(a)(1) and (2); and robbery, N.J.S.A. 2C:15-1. Following a jury trial, defendant was acquitted of felony murder and robbery, but he was convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), a lesser-included offense of purposeful or knowing murder. In addition, prior to sentencing, defendant pled guilty to fourth- degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), as charged in a separate indictment.
Defendant was sentenced on January 13, 2006. Based on his criminal history, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Defendant was sentenced to a sixteen-year prison term on the manslaughter conviction with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent eighteen-month term for the resisting arrest offense.
On appeal, we affirmed defendant's reckless manslaughter conviction. However, we remanded the matter for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), because defendant's sixteen-year prison term exceeded the former presumptive term for a second-degree extended sentence. State v. Bowser, No. A-4890-05 (App. Div. Oct. 19, 2007), certif. denied, 193 N.J. 276 (2007). At the resentencing hearing on March 13, 2008, the court imposed a fifteen-year term subject to NERA.
We need not repeat all of the facts supporting defendant's conviction because they are set forth in our prior opinion. As we previously indicated, the "[o]fficers who responded to the scene testified that they found Bush lying on his back with a 'hawk bill type knife' in his right hand." Id. at 3. We also noted that "Bush was pronounced dead at the scene, and the Essex County Medical Examiner, Dr. Nobby Mambo, testified that the cause of his death were injuries to the head. Mambo described the injuries as an 'abrasion on the back of the head, a fractured skull, and a hemorrhage over the lobes and base of the brain.'" Id. at 4. Mambo testified that "Bush was most likely struck in the face" because his dentures were broken. Ibid.
We also noted that when defendant testified he admitted punching Bush in the face:
Defendant testified in his own behalf. Admitting that he supported himself by cutting hair and dealing drugs, defendant testified that Bush did not have enough money to buy drugs from him so he, Bush, offered his cell phone instead. Defendant testified at trial that during the course of the drug deal, an argument ensued and Bush pulled out a knife and "came at" him. Acting in self-defense, defendant punched Bush once in the face, saw Bush fall to the ground, and then fled the scene.
In our prior opinion, we also observed that defense counsel had "vigorously argued the circumstances of the confrontation between Bush and defendant, reminding the jury that his client was unarmed, and that Bush had a knife." Id. at 11. We also concluded that the trial court "clearly placed the essential issue ...