December 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YAVUZ KARA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-4597.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Yavuz Kara appeals from a November 27, 2006 order of the trial court denying defendant's motion for post-conviction relief seeking to vacate his guilty plea. We affirm.
On January 25, 2002, defendant pled guilty to third degree endangering the welfare of a child*fn1, N.J.S.A. 2C:24-4a, and third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, for molesting his step-daughter. He was sentenced to three years probation. Defendant was deported to Turkey in July 2004.
In 2006, defendant filed an application to withdraw his plea claiming that he did not understand the potential immigration consequences of his guilty plea, although he admittedly circled "yes" on the plea form in answer to the question: "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?"
After a plenary hearing at which defendant and his former attorney, Anthony Alfano, testified, Judge Ravin denied the motion.*fn2 In a comprehensive written opinion issued on November 27, 2006, he found that defendant was not a credible witness. In particular, defendant's testimony that he did not understand the immigration consequences of his plea was not believable. On the other hand, Judge Ravin concluded that defendant's former trial counsel was credible in testifying that "he had several conversations with the defendant regarding his immigration status both before and after the plea of guilty was entered" and "that he informed the defendant that there was no guarantee that he would not be deported." Defendant admitted that his trial attorney "discussed the immigration consequences of his plea prior to entering that plea" and also referred defendant to an immigration lawyer. Relying on State v. Chung, 210 N.J. Super. 427 (App. Div. 1986), Judge Ravin concluded that defendant was not given erroneous information concerning the immigration consequences of his guilty plea and hence there was no basis on which to vacate the guilty plea.
Defendant raises the following argument on this appeal:
POINT I: THE TRIAL COURT BELOW COMMITTED REVERSIBLE ERROR (DEF. A-5 TO DEF. A-10) IN DECLINING TO VACATE THE DEFENDANT-APPELLANT'S GUILTY PLEA AS THE DEFENDANT-APPELLANT WAS EFFECTIVELY DENIED HIS CONSTITUTIONALLY PROTECTED RIGHT TO COUNSEL, HAVING BEEN PROVIDED WITH MISINFORMATION AS TO THE CONSEQUENCES OF HIS GUILTY PLEA.
A. The Defendant Was Provided With Erroneous Information Regarding The Possible Consequences Of Pleading Guilty.
B. The Trial Court Failed To Adduce Sufficient Evidence To Support Its Finding Of The Fact That The Defendant-Appellant Was Not Credible.
1. Inconsistency Between Factual Basis During Plea Colloquy And Defendant's Testimony on October 26, 2006.
2. Inconsistency Regarding When Defendant And Mr. Alfano First Discussed The Immigration Consequences.
3. Testimony Of Anthony Alfano, Esq.
C. The Erroneous Information Provided To The Defendant-Appellant From His Counsel Directly Affected The Plea.
Having reviewed the record provided to us on this appeal, we conclude that except to the extent discussed below, defendant's contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Ravin's cogent opinion. We add the following comments.
We will not disturb the trial judge's factual findings, so long as they are supported by substantial evidence, and we give particular deference to the judge's ability to observe the witnesses and evaluate their credibility. State v. Locurto, 157 N.J. 463, 474 (1999). The record amply supports Judge Ravin's factual conclusions that defendant understood the potential immigration consequences of his guilty plea and that defendant's counsel did not misinform him on that issue. Defendant indicated in writing on the plea form that he knew he could be deported as a result of his guilty plea. His trial attorney also told defendant there was a possibility he could be deported and referred him to immigration counsel.
Given the judge's findings of fact, which are supported by the record, we find no abuse of discretion in his determination that defendant should not be permitted to withdraw his plea. See State v. Simon, 161 N.J. 416, 443-44 (1999); State v. Smullen, 118 N.J. 408, 416 (1990). There is no basis to conclude that defendant received ineffective assistance of counsel and there is no basis on which to allow him to withdraw his guilty plea. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427,434-36 (App. Div. 1986).