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State v. Bekhit

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CHRISTINA BEKHIT, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 00-04-147.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 26, 2007

Before Judges Wefing and R. B. Coleman.

The State appeals, pursuant to leave granted, from a trial court order granting defendant's petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

When she was sixteen, defendant was charged as a juvenile with aggravated assault, N.J.S.A. 2C:12-1b(1); terroristic threats, N.J.S.A. 2C:12-3; and possession of a knife with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d. The State filed a motion to transfer the proceedings to the Superior Court, Law Division, to permit defendant to be prosecuted as an adult. On April 27, 2000, she appeared with her attorney before the trial court and voluntarily waived jurisdiction in the Superior Court, Chancery Division, Family Part. The trial court and her attorney questioned her about her understanding of such a waiver. During the course of this colloquy, there was a reference to a plea agreement that had already been negotiated under which defendant would be sentenced to three years in prison for aggravated assault, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, and the remaining charges would be dismissed. The Family Part judge signed the waiver order.

That same day, defendant and her attorney appeared in the Law Division for entry of her plea. During those proceedings, defendant's father attempted to interject himself. The following colloquy occurred:

[DEFENSE COUNSEL]: Judge, there seems to be a little disagreement between parent and child as to just what should happen, okay. I have explained this because this has gone on actually for about, since last July and this is probably about the 8th court appearance.

THE COURT: Sit down, sir. [DEFENSE COUNSEL]: I have explained to Mr. Bekhit who understandably as a father of a young woman is not thrilled about this whole thing, okay, because of what she faces.

THE COURT: Right. [DEFENSE COUNSEL]: But he has been to court each and every time and he has heard what Judge Daley has said, what the prosecutor has said, what I have said, and we have discussed the plea that was made about four, five months ago by the prosecutor to us. We have discussed it a number of times after the hearings and on the phone.

THE COURT: You have discussed this with Mr. Bekhit and with Ms. Bekhit, Christina Bekhit, on numerous occasions?

[DEFENSE COUNSEL]: Right, yeah, after hearings we discussed this and, like I said, there is no doubt he is unhappy about this.

THE COURT: Let me ask you this question.

[DEFENSE COUNSEL]: Sure.

THE COURT: It sounds to me like Mr. Bekhit speads with an accent. I mean, I probably speak with an accent, too, to his ears, but does Mr. Bekhit speak English fluently as far as you know?

[DEFENSE COUNSEL]: Well, let me put it this way; okay, he understands me, what I have said, and I think I spent a great deal of time with everyone in explaining things and I think I have made it clear.

THE COURT: Does he understand English as far as you can tell?

[DEFENSE COUNSEL]: He certainly does.

Defendant's father having been told to be seated, the plea proceedings continued without further discussion of his views. The trial court accepted the plea bargain and sentenced defendant in accordance with its terms.

After completing her sentence, defendant received a detainer from the Immigration and Naturalization Service. Although defendant had lived in the United States from the time she was two years old, she had been born in Egypt and came to this country when her parents immigrated here. She had not become a United States citizen by the time of her arrest, and her conviction led to the loss of her green card and exposed her to the risk of deportation.

Defendant then filed her PCR petition, contending that her attorney was ineffective for not advising her that she could face deportation. She alleged she would not have voluntarily waived jurisdiction in the Family Part and would not have entered the plea agreement in the Law Division if she had been aware of that risk.

The trial court conducted a plenary hearing, at which defendant, her father, and the attorney who had initially represented her all testified. Defendant testified that neither her attorney nor the trial court discussed her immigration status with her. She also testified that she had never discussed that question with her parents and did not, at the time, understand "what being a citizen of the United States meant." With respect to that testimony, we note that defendant had not graduated from high school when she incurred these charges and executed the waiver and plea agreement.

Defendant's father testified that he had informed defendant's attorney that his daughter was not a citizen and was in the United States on a green card. He said that the attorney responded that he would review defendant's school records to learn what they revealed on the issue. He also testified that the attorney never informed him of the risk of deportation his daughter would face if she were tried and convicted as an adult.

The attorney, on the other hand, testified that he was never told that defendant was not a citizen. He had noted that the police report prepared after the incident referred to defendant as a citizen. He testified that in conjunction with the preparation of the plea forms he had asked defendant whether she was a citizen and she answered that she was. It was on that basis that, in response to the question on the LR28 "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" he circled "N/A." He did not discuss the topic further with her.

The trial court did not specifically resolve the factual differences in the testimony. In its oral opinion, it noted the principle that deportation is considered a collateral consequence of a guilty plea, and that an attorney is not deemed ineffective for purposes of PCR for not advising the client of the risk of deportation. State v. Chung, 210 N.J. Super. 427, 441 (App. Div. 1986). The trial court then noted the critical nature of the decision to waive the jurisdiction of the Family Part and concluded that defendant did not make a voluntary, informed decision when she elected not to contest the question of waiver because she was unaware of the risk of deportation that would follow from a conviction as an adult. The trial court directed that defendant's guilty plea be vacated and the matter remanded to the Family Part to again address the question of waiver. It noted that defendant had, in the interim, successfully addressed her problems of substance abuse, had successfully completed high school and was employed and attending college.

We granted the State's motion for leave to appeal from the trial court's order. On appeal, the State contends that PCR should not have been granted. In support of its position, the State argues that the parties did not address the issue of whether defendant made a knowing and voluntary waiver to Superior Court and that we should remand the matter to permit it to supplement the record. Defendant, however, clearly argued that question to the trial court in her summation, and the prosecution made no objection. If the State was of the view that the question of knowing and voluntary waiver was not before the court, it should have raised that objection at that time. It did not do so, however, and we decline to give the State a second opportunity.

We are troubled, however, by the trial court's failure to make specific findings as to the nature of the conversations that took place between and among defendant, her trial attorney, and her father. Further, there was reference before the trial court to defense counsel reviewing defendant's school records and the apparent fact that those records list defendant as having been born in Egypt. Those records have not been provided to us on appeal, and we are unable to determine whether the question of defendant's immigration status should have been readily apparent to an attorney reviewing those records on behalf of his client.

We thus remand this matter to the trial court for further proceedings. We leave it to the sound discretion of that court whether to take further testimony or argument on the questions we have noted. We do not retain jurisdiction.

Remanded.

20071123

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