On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-1003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lihotz.
Defendant Wesner Alectus appeals a January 23, 2009 order denying his petition for post-conviction relief (PCR). On December 12, 2005, pursuant to a plea agreement, defendant, a Haitian national, pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3). The State agreed to dismiss the remaining three counts of the indictment. As recommended in the plea agreement, he was sentenced to three years probation and ordered to pay the requisite fines, penalties and assessments. No appeal was taken and defendant served his sentence.
On August 29, 2008, defendant filed a PCR petition. He alleged his attorney was deficient for not filing a motion to suppress the evidence and for misinforming him at the time of his plea about the potential deportation consequences of his conviction. As a result, he contended his plea was not knowing and voluntary and should be withdrawn.*fn1 Additionally, defendant suggested he should be permitted to withdraw his plea because the testimony presented failed to provide a sufficient factual basis to sustain a conviction of the charge. The trial judge found no deficient conduct by counsel and denied the petition.
On appeal, defendant argues:
BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.
FLAWS IN THE PLEA ALLOCUTION REQUIRE THE PLEA BE VACATED.
Following our review, we affirm.
When charged with the offense that is the subject of this appeal, defendant sought representation by the Office of the Public Defender in Union County. The Uniform Defendant Intake form, containing information provided by defendant, reflected he was born in Haiti and his resident alien card expired on May 21, 2003.
At the plea hearing, the judge addressed defendant directly. Defendant stated he had no difficulty reading or understanding English, understood the charge against him, and was satisfied with his attorney's services. In answering the questions on the plea agreement form, defendant acknowledged his attorney reviewed each question with him. We note, question seventeen asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of ...