On appeal from Superior Court, Law Division, Bergen County, Indictment No. 04-05-1026.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Chambers.
Defendant Alfredo Crespo appeals from the order of September 5, 2008, denying his petition for post-conviction relief. We affirm.
On April 18, 2006, defendant pled guilty to two counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts nine and seventeen), admitting to sexual contact with two minors. The plea agreement provided that the State would request a sentence of five years on count nine and a consecutive four year term on count seventeen, for an aggregate sentence of nine years. However, at sentencing on August 18, 2006, the trial court imposed the lesser sentence of four years on count nine and a consecutive three years on count seventeen, for an aggregate sentence of seven years. The trial court placed defendant on community supervision for life and imposed the requisite monetary assessments and penalties. Under the sentence, defendant was subject to the registration and reporting requirement of Megan's Law, N.J.S.A. 2C:7-1 to -23; the other counts in the indictment were dismissed. No direct appeal was filed.
Thereafter, defendant filed a pro se petition for post-conviction relief seeking to vacate his conviction and sentence, and the Office of the Public Defender then filed a brief on his behalf. The trial court denied defendant's petition for post-conviction relief without an evidentiary hearing, explaining its reasons in a fourteen page written decision. Among the issues raised before the trial court, defendant contended that he had not been properly advised of all of the penal consequences of his plea and that defense counsel failed to interview an exculpatory witness.
With respect to the contention that he was not advised of all of the penal consequences of his plea, defendant asserted that defense counsel had told him that because defendant would be deported upon completion of his sentence, he would be paroled on his first parole eligibility date which would be in twenty-eight months. This, however, did not occur. Defendant further noted that the Prosecutor's Office asked the New Jersey State Parole Board to deny defendant parole on his first eligibility date. Defendant contended that at the time he agreed to plead guilty, he had not been advised that the Prosecutor's Office would ask the New Jersey State Parole Board that he serve his maximum sentence. In making the argument that due to these circumstances he had not been advised of the penal consequences of his plea, defendant relied on State v. Kovack, 91 N.J. 476 (1982) (providing that before pleading guilty, a defendant must be advised of any period of parole ineligibility) and State v. Davis, 175 N.J. Super. 130, 148 (App. Div.), certif. denied, 85 N.J. 136 (1980) (stating that "knowledge of one's ineligibility for parole is as necessary to an understanding of a plea as is knowledge of the maximum sentence possible").
The trial court rejected these arguments noting that State v. Kovack, supra, 91 N.J. 476 only requires a defendant to be advised of a mandatory period of parole ineligibility. No period of parole ineligibility was imposed in this case. Further, defendant was fully advised of the maximum period of imprisonment he faced before giving his plea. Indeed, we note that at the time defendant pled guilty he was told he faced a potential aggregate term of nine years pursuant to the plea agreement, but at sentencing he received the lesser aggregate term of seven years. The trial court further observed that nothing in the plea agreement indicated that defendant would be released and deported upon serving twenty-eight months or that the State was precluded from taking a position before the New Jersey State Parole Board on his parole.
Defendant also contended that he was denied ineffective assistance of counsel because his attorney did not interview a witness who would have provided exculpatory testimony. The witness submitted a certification in support of defendant's post-conviction relief petition, stating that she was told by one victim that the victim had lied about the incident and in fact had invented the whole accusation. Defendant acknowledges in his certification that before pleading guilty, he had learned from friends that this victim had admitted to lying about the sexual activity. Defendant contends that he is innocent of the charges and that this testimony would have supported his defense that the father of the victims had his daughters lie about the incidents in revenge for the affair defendant had with the father's wife.
In declining to overturn the plea on this basis, the trial court observed that defendant by his own certification was aware of this favorable testimony before he pleaded guilty. His position now contradicts his own testimony under oath provided to the court prior to his plea that he was satisfied with his attorney's services, that he had time to discuss the charges and the plea agreement with his attorney, and that his attorney had answered all of his questions. The court further noted that this witness's testimony also only involved one of the victims and not the other.
Defendant now appeals, raising the following issues:
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING CONCERNING WHAT DEFENDANT WAS TOLD BY HIS TRIAL COUNSEL AS TO WHAT PAROLE DATE HE ...