On appeal from Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 266-03-2005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
Defendant Luis Velazquez appeals from a June 6, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). Defendant claims that ineffective assistance of counsel led to his guilty plea for receiving stolen property because his attorney gave him incorrect legal advice about the likelihood of deportation. We affirm the Law Division's order denying the PCR petition.
Our record shows the following relevant facts. In 1995, defendant attempted to come to the United States by a small boat from Cuba. He was turned away and held at military bases at Guantanamo Bay and in Panama for the next two years. He applied for and, in 1997, was granted lawful entry to the United States as a permanent resident.
While living in the United States, defendant worked as a truck driver. He was also arrested several times for theft-type offenses. Our record does not include the specifics of his criminal record, but it appears from transcripts of proceedings in the Law Division that defendant was admitted to the Pretrial Intervention Program, N.J.S.A. 2C:43-12e; R. 3:28, after his arrest for an offense involving distribution of counterfeit currency, and that he was convicted of a disorderly persons offense of shoplifting on at least one other occasion.
On January 5, 2005, defendant was arrested in North Bergen and charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7, and disorderly persons possession of burglary tools, N.J.S.A. 2C:5-5. The arrest was the result of police investigation of suspicious activity near railroad tracks late at night. At about 10:30 p.m., defendant's tractor-trailer was parked backed up to a downed fence near the tracks. When the police arrived, defendant told them he was resting at that location. His cousin was hiding in the bed compartment of the tractor cab.*fn1
The door of the trailer was partially open, and the police found a number of new, boxed Panasonic electronic items there, including televisions, home theater systems, and DVD players. Inside the cab, the police found a case of new Panasonic portable DVD players. Defendant claimed he did not know the electronic merchandise was in his trailer. He told the police he thought his trailer was empty when he left its prior location. Defendant also denied knowledge of a Toyota parked near his truck, although the police found the keys to the Toyota in the ashtray inside the cab of his truck. The police then found small, unopened electronic items in the trunk of the Toyota.
The police found a two-foot bolt cutter in the truck with a piece of a bolt still in its cutting edges. In the trailer, the police also found a bill of lading, but the document was for a shipment of merchandise greater than that found in the trailer. Defendant could not explain where he obtained the merchandise and said he had no document showing its source or point of delivery. The police arrested defendant and his cousin.
At the police station, defendant gave a statement, attempting to explain his possession of the merchandise. He told the police that two strangers approached him and offered to sell him the electronic equipment for $5,000. He offered them the $1,500 he had on his person, and they accepted that amount for all the merchandise. He admitted he knew the merchandise was probably stolen.
Defendant retained an attorney to represent him on the charges. Within several weeks of the arrest and before grand jury consideration of the charges, defendant entered into a plea agreement with the Hudson County Prosecutor's Office and pleaded guilty on March 9, 2005, to third-degree receiving stolen property. In exchange, the State recommended a non-custodial sentence and also agreed to dismiss the charges against defendant's cousin.
At the plea hearing, defendant testified that no one had made any promise to him regarding his guilty plea other than the plea agreement as described on the record. He acknowledged he had discussed the standard guilty plea form and questionnaire with his attorney and understood the questions and answers that he had supplied to the court on that form. Among those answers was that defendant understood he might be deported based on his guilty plea and conviction.
To establish a factual basis for the charge of receiving stolen property, defendant admitted he knew the electronic merchandise was stolen because he bought it on the street at substantially less than its true value. The court accepted the guilty plea. On July 22, 2005, defendant was sentenced in accordance with the plea agreement to two years probation.
In October 2008, defendant was detained by federal authorities when returning to the United States from a trip out of the country. He was notified that he was subject to deportation, that is, removal from the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) because of his conviction for a crime involving moral turpitude.
The federal removal proceedings were dismissed several months later, but they were reinstituted in April 2010. Defendant filed his PCR petition on April 21, 2010, seeking to vacate his 2005 conviction. He claimed his defense attorney had represented him ineffectively by advising him he would not be deported if he pleaded guilty to the third-degree charge. He alleged that the ...