On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-10-1907.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 11, 2009
Before Judges Axelrad and Lihotz.
On October l5, 1998, twenty-five-year-old defendant Paulo Neto, a citizen of Portugal, was indicted with two co-defendants on third-degree possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10a(1); and second-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(2). The charges arose from an incident in which defendant and his friends occupied a shore house in South Belmar. Police officers arrived with a code enforcement officer upon the belief the house had a municipal code violation that prevented the issuance of a certificate of occupancy. The lessee allegedly consented to the officer entering the house. As an officer approached a bedroom, the lessee closed the bedroom door and informed the officer the room contained "personal stuff." A shift commander arrived and entered the room, finding 25.3 grams of cocaine, placed in vials, on the dresser. The lessee admitted owning the cocaine. Defendant made a statement admitting he was aware of its existence.
On March 24, 1999, defendant filed a motion to suppress evidence without a warrant, which he withdrew on the return date, and entered into a negotiated agreement with the State. On April 16, 1999, defendant pled guilty to the amended charge on count two of third-degree possession of cocaine with intent to distribute and on July 9, 1999, he was sentenced, consistent with the plea agreement, to three years of non-custodial probation, with applicable fines, penalties and a driver's license suspension. The co-defendants were extended the same offer, entered guilty pleas to the amended charge, and received the same sentence. Each defendant's plea offer had been contingent upon guilty pleas by the other co-defendants or truthful testimony by the defendant at the co-defendants' trials.
Defendant executed a plea form at the time he entered the plea. He initialed the first and second pages of the form and signed the third and fourth pages. He circled "yes" in response to the questions "Do you understand what the charges mean?" and "Do you understand that by pleading guilty you are giving up certain rights," including the rights to a jury trial, to remain silent, and to confront witnesses? Question l7 on the form inquired, "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?" Defendant also answered in the affirmative.*fn1
Defendant circled "no" to the question "Do you have any questions at all concerning this plea?"
At the plea hearing, defendant affirmed that he had signed the plea form after reviewing it with his attorney "on a question by question basis." He also answered "yes" to the court's questions, though limited, concerning the voluntary character of the plea, his understanding of the plea agreement, and its penal consequences. There was no discussion regarding defendant's immigration status or question seventeen. By way of factual basis, defense counsel asked the following questions, with defendant answering "yes" to each:
"Did the three of you have a quantity of cocaine in your possession?"
"You knew it was cocaine?"
"It was your purpose, was it not, to take that cocaine and share it with friends during the summer months?"
The court accepted the plea as voluntarily entered and with understanding of the terms "based upon [its] evaluation of [defendant] as a witness and his words under oath," as well as factually based. At sentencing, defense counsel made no additions or corrections to the pre-sentence report and urged the court to adopt the plea recommendation. Defendant chose not to address the court himself. Defendant was advised of his right of appeal.
After receiving probation, defendant remained employed as he had since l993, got married, started a family, and successfully completed his probation. On August 11, 2007, defendant was returning to Newark Airport from Portugal and sought readmission to this country as a lawful permanent resident, having initially been admitted in 1986. Defendant instead was served with a Notice to Appear charging that he was ineligible for re-admission under the terms of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(2)(A)(i)(II). On June 5, 2008, the immigration court sent defendant a notice of hearing and removal proceedings, and on October 14, 2008, it ruled that defendant was to be ...