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State v. McIntyre

December 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERMAINE MCINTYRE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-08-01040.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2008

Before Judges Cuff and Fisher.

In this appeal, defendant seeks our reversal of the denial of his petition for post-conviction relief, claiming his attorney was ineffective in advising him on the deportation consequences of a guilty plea. In light of the trial judge's findings of fact, we conclude that, in recommending that defendant consult with an immigration attorney, defense counsel met the level of competency required by the Strickland/Fritz*fn1 and, therefore, affirm.

Defendant is presently twenty-five years old. His family emigrated to this country from England when he was three years old. On August 29, 2002, when he was nineteen years old, defendant was indicted and charged with first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and second-degree conspiracy to commit the aforementioned offenses, N.J.S.A. 2C:5-2. The indictment alleged that, on May 27, 2002, defendant and a co-defendant placed an individual in fear of immediate bodily injury while stealing property from him. This was not defendant's first encounter with the criminal justice system.

Prior to entering into a guilty plea to second-degree robbery, defendant executed a plea form. Defendant's answer to Question 17 revealed he well knew he was not a citizen and that he "may be deported" as a result of pleading guilty.*fn2 During the plea hearing, the judge discussed with defendant the fact that his guilty plea would require a three-year period of mandatory parole supervision following his release from prison, which prompted an additional discussion between the judge and defendant:

[THE PROSECUTOR]: Do you understand that if you violate during [the period of mandatory parole supervision], you could go back, assuming, as [defense counsel] has made me aware that you're not deported, you could go back to prison for any period of that three years? It's a special part of the Act?

[DEFENDANT]: Yes.

[THE PROSECUTOR]: Do you understand that?

[DEFENDANT]: Yes.

THE COURT: Something I neglected to ask Mr. McIntyre, in light of what I just heard, are you a United States citizen?

[DEFENDANT]: No.

THE COURT: You've been made aware that pleading guilty to this offense can ...


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