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State of New Jersey v. N.M

March 29, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
N.M., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-07-0748.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2011

Before Judges Sabatino and Ostrer.

Defendant appeals the trial court's denial of post-conviction relief ("PCR") in connection with his convictions of second-degree sexual assault, and third-degree aggravated criminal sexual contact. The convictions arose out of evidence that defendant had engaged in improper sexual acts with his adolescent daughter on several occasions.

Prior to entering his guilty plea to these offenses in 2001, defendant had given a confession to investigators. The trial court conducted a Miranda*fn1 hearing and concluded that the confession was voluntary. A plea agreement ensued.

Defendant was sentenced to two concurrent five-year prison terms, subject to community supervision for life, the requirements of Megan's Law, and a sexual offender evaluation at Avenel. The sentence was consistent with the terms of the plea agreement. Defendant has since completed the custodial portion of the sentence. There is no indication in the record before us that defendant ever filed a direct appeal of his sentence.

In 2004, defendant filed a PCR application in the Law Division. The gist of his application is that he allegedly did not understand the lifetime parole supervision consequences of his plea. Defendant alleges that he did not receive the effective assistance of counsel in advising him with respect to that plea. Defendant, whose native language is Spanish, contends that he should have been assisted by a translator when he went over the plea forms with his trial attorney.

After several adjournments, the trial court conducted an evidentiary hearing on defendant's PCR application. The sole witness at that hearing was defendant's trial attorney. The trial attorney testified that he had, in fact, reviewed with defendant the consequences of his plea. Trial counsel also testified that he spoke with defendant repeatedly in English without the use of an interpreter, and that defendant had no trouble communicating with him in those discussions. Defendant elected not to testify at the evidentiary hearing, and instead relied upon his own written narrative of events submitted in connection with the PCR application.*fn2

After considering the testimony of defendant's former attorney, the plea transcripts, and the legal arguments, the trial court dismissed defendant's PCR application. In his letter opinion dated April 9, 2008, the PCR judge credited the testimony of the trial attorney concerning the adequacy of the advice he had given to defendant about the plea, and concerning defendant's ability to comprehend that advice and the consequences of the plea without a translator. The judge concluded that defendant had therefore "not proven by a preponderance of the evidence that his attorney deviated from the reasonable [level of] professional assistance."

On appeal, defendant makes the following points in his brief:

POINT I

THE TRIAL COURT'S FINDINGS WERE INADEQUATE AND CLEARLY ERRONEOUS WITH REGARD TO THE INEFFECTIVE ...


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