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State v. Hernandez

August 14, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SANDER HERNANDEZ,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 04-09-01237A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 6, 2008

Before Judges R. B. Coleman and Sabatino.

Defendant Sander Hernandez appeals his conviction of third-degree distribution of cocaine, a controlled dangerous substance ("CDS"), in violation of N.J.S.A. 2C:35-5(a)(1). The conviction was entered in September 2004 pursuant to a plea agreement that defendant had negotiated with the assistance of counsel. Defendant now claims that the conviction should be vacated because his attorney was allegedly ineffective in failing to advise him that the conviction could lead to his potential deportation from the United States. We affirm.

The background facts are not complicated. Defendant was charged in a Union County accusation with distributing cocaine on August 24, 2004 in the Township of Union. The accusation exposed defendant to a statutory maximum term of five years, a fine of up to $75,000, plus various other penalties. Defendant had also been concurrently charged with simple possession of CDS, possession of CDS in a motor vehicle, and possession of drug paraphernalia with the intent to use it.

Defendant and his attorney subsequently negotiated a plea agreement in which he agreed to plead guilty to the third-degree distribution offense in exchange for the State's dismissal of the remaining charges against him. As part of the bargained-for terms, the prosecutor agreed to recommend that the sentence imposed by the court should not exceed probation, with a maximum of 180 days in the county jail and the forfeiture of all monies seized in connection with his arrest. The plea agreement was memorialized in a standard plea form, signed by defendant, his attorney, and the assistant prosecutor.

At the times relevant to this matter, defendant was a resident alien in the United States. He is a native and a citizen of the Dominican Republic. Notably, standard question number seventeen on the plea form specifically alerted defendant to the possibility that his guilty plea might lead to his deportation:

17. 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?

The response of "N/A," signifying "Not Applicable," was circled. Defendant also authorized the circled response "No" to item twenty-four on the form, which inquired if he had "any questions concerning this plea."

Defendant and his attorney appeared before Judge Donohue on September 30, 2004 to enter the plea. No interpreter was utilized, as there is no indication in the record that defendant lacked proficiency in the English language. At the outset of that proceeding, Judge Donohue questioned defendant about his background. During that colloquy, defendant affirmatively stated to the judge, under oath, that he was then a United States citizen:

Q: Mr. Hernendez . . . . [c]ould you tell me how old you are?

A: 27 going on 28.

Q: And how far did you go ...


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