On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Carchman.
In this appeal, defendant seeks, among other things, a reversal of an order denying his motion to withdraw his guilty plea based on the contention that the judge erroneously applied the principles set forth in State v. Slater, 198 N.J. 145 (2009). Defendant, a Peruvian citizen, also now argues for the first time that he should have been permitted to withdraw his guilty plea because he was not advised that his plea would trigger mandatory deportation. We find no merit in the first argument and do not reach the second, leaving it instead for defendant to pursue by way of a future petition for post-conviction relief.
In 2008, defendant was indicted and charged with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c);*fn1 and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On January 9, 2009, defendant entered a guilty plea to first-degree aggravated sexual assault in exchange for: the treatment of the conviction, at sentencing, as a second-degree offense; the recommendation of an eight-year term subject to an 85% period of parole ineligibility; and the dismissal of the remaining counts. When, during the plea hearing, defendant stated he was not a citizen, the judge advised him that "this plea will, more than likely, affect your immigration status" and "that more than likely you will be deported after you serve your prison term." In responding to the many questions posed during the judge's thorough inquiries, defendant revealed his familiarity with the charges against him, agreed that his attorney had fully discussed the case with him, and expressed his free and voluntary desire to plead guilty. The judge outlined for defendant all the rights he was waiving as a result of his guilty plea, and defendant responded that he understood and was willing to waive those rights. And, before eliciting a factual basis for the guilty plea, the judge lastly asked:
Q. And the only reason why you give up all those rights is because you're in fact guilty. Is that true?
Defendant then provided a factual basis for his guilty plea, acknowledging that he committed a sexual assault on the female victim, who was at least thirteen and less than sixteen years old.
Prior to sentencing, defendant retained new counsel and moved to withdraw his guilty plea. Defendant's motion was supported by his certification, which chiefly asserted that his prior attorney failed to obtain records suggesting the victim's lack of credibility and the questionable nature of the victim's specific allegations of a sexual assault; defendant also asserted he was innocent. The judge found defendant's allegations to be insufficient and denied the motion. Defendant was later sentenced, in accordance with the negotiated plea agreement, as a second-degree offender to an eight-year prison term subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals, presenting the following arguments for our consideration:
I. BECAUSE THE COURT AND COUNSEL MISINFORMED DEFENDANT ABOUT THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA, HE DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY, ...