March 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATHURIN AMBROISE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 07-01-00007-SGJ.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Wefing and Messano.
Defendant was indicted for first-degree transporting property derived from criminal activity, N.J.S.A. 2C:21-25a, and second-degree receiving stolen property, N.J.S.A. 2C:20-7. On July 7, 2008, he entered a negotiated plea of guilty to the latter charge, with the State agreeing to recommend that defendant be sentenced as if convicted of a third-degree crime to a term of three years. Defendant subsequently filed a motion to withdraw his guilty plea. The trial court denied the motion and sentenced defendant in accordance with the terms of the plea agreement. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Question 17 of the plea form executed by defendant asked, "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 answer "Yes" was circled.
When defendant entered his guilty plea, he had the following colloquy with the trial court.
Q: I understand that you are not a citizen of this country, is that correct?
A: Yes, I'm not.
Q: All right. And we discussed earlier today that by entering a guilty plea, it may have an adverse impact upon your immigration status and you understand that?
A: Yes, sir.
Q: All right. And you believe that you've had enough time to review that issue with your counsel?
A: I wish to have more time, but I think we did our best.
Q: All right. Well, you're going to have a sentencing date that's later on. We're likely giving sentencing dates in September and perhaps even would be agreeable to something a little bit later than that if everybody needed a little bit more time. So at this point, are you prepared to go forward with your guilty plea?
Following those proceedings, defendant consulted with an attorney who practiced in the field of immigration law. That attorney forwarded an opinion letter stating that if defendant was either found guilty or pled guilty to this second-degree charge, "he will almost certainly be deported and/or removed from the United States."
Defendant then filed his motion to withdraw his guilty plea. He presented several reasons to the trial court why he should be permitted to withdraw his guilty plea: his lack of knowledge of the immigration consequences of his guilty plea and its impact on whether he could be admitted to Intensive Supervision Program, and the inadequacy of the factual basis behind his plea.
In denying the motion with respect to the immigration consequences, the trial court referred to those consequences as "collateral" to the entry of a guilty plea. In its brief to us, the State repeats that characterization, citing State v. Chung, 210 N.J. Super. 427 (App. Div. 1986). Chung, however, no longer represents the law. The Supreme Court in July 2009 decided State v. Nunez-Valdez, 200 N.J. 129, 138, 143 (2009), in which it stressed the necessity of a defendant having a full understanding of the potential immigration consequences of a guilty plea. The trial court did not have the benefit of the Court's analysis at the time of defendant's motion, for it was decided some months after the trial court decided that motion. Defendant's appeal, however, was pending before us at the time of the Court's decision, and he is entitled to pipeline retroactivity.
We note in addition that the Supreme Court decided State v. Slater, 198 N.J. 145 (2009), in which it articulated the standards to be employed by a trial court in considering a motion to withdraw a guilty plea, after this trial court denied defendant's motion. The trial court did not have available to it the Slater standard when it decided defendant's motion.
We reverse the trial court's order and remand the matter to the trial court for reconsideration in light of State v. NunezValdez and State v. Slater.
Reversed and remanded.
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