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State v. Agromayor

June 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFREDO LUIS AGROMAYOR, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 139-85.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2008

Before Judges Lisa and Lihotz.

Defendant appeals from an order denying his post-conviction relief (PCR) petition. On May 29, 1985, pursuant to a plea agreement, defendant pled guilty to possession of less than one ounce of cocaine with intent to distribute, in violation of N.J.S.A. 24:21-19(a)(1)(Repealed). Pursuant to the plea agreement, more serious charges were dismissed and the prosecutor took no position regarding sentencing. On July 17, 1985, defendant was sentenced to two years probation, which he served uneventfully. He did not appeal his conviction. Twenty-two years later, on July 13, 2007, facing deportation proceedings, defendant filed his PCR petition. He alleged his attorney was deficient for misinforming him at the time of his plea about the potential deportation consequences of his conviction, as a result of which he contended his plea was not knowing and voluntary and he should be permitted to withdraw it. After hearing oral argument on August 17, 2007, Judge Theemling found no deficient conduct by counsel and denied the petition.

On appeal, defendant argues:

THE TRIAL COURT'S DECISION SHOULD BE SET ASIDE BECAUSE REVERSIBLE ERROR WAS COMMITTED IN DENYING AGROMAYOR'S MOTION TO VACATE HIS PLEA AND JUDGMENT OF CONVICTION FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

We reject this argument and affirm.

Defendant is a citizen of Cuba. He entered this country in 1980. During the plea colloquy, there was no discussion on the record regarding defendant's alien status or any possible deportation consequences that might result from his plea and conviction. The plea forms then in use contained no question pertaining to citizenship status or possible deportation consequences. At the sentencing proceeding, however, after the court imposed sentence and advised defendant of his right to appeal, defendant's attorney sought to "make application that the plea and the sentence not be used for purposes of deportation under the Immigration and Naturalization Law." The following colloquy ensued:

[DEFENSE COUNSEL]: Thank you, your Honor.

May I make application that the plea and the sentence not be used for purposes of deportation under the Immigration and Naturalization Law?

[PROSECUTOR]: I don't know if we have standing to do that.

[DEFENSE COUNSEL]: The rules provide I can make the motion.

[PROSECUTOR]: That may be true, but there is nobody here to represent ...


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