On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2059.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012
Before Judges Alvarez and Ostrer.
Defendant appeals from an order denying post-conviction relief (PCR) without an evidentiary hearing. Defendant entered a plea in Essex County in April 2005 to first-degree sexual assault, and was sentenced in August 2005 to a fifteen-year term, subject to the No Early Release Act (NERA) and Megan's Law. Pursuant to the plea agreement, the sentence was concurrent to a ten-year sentence, under a March 2005 plea in Morris County, for first-degree attempted murder against the same victim, and third-degree aggravated assault.
Defendant argued, in his pro se petition and through appointed PCR counsel, that his trial counsel was ineffective because he (1) failed to inform defendant that, as a non-citizen born in Guyana, he would be subject to deportation as a result of his plea; (2) failed to conduct an adequate investigation; and (3) pressured him to enter a plea.*fn1 Judge Thomas R. Vena denied the petition in an oral decision, which he supplemented with a written opinion. We affirm.
Defendant and the victim, B.T., had resided together between 1997 and 2001 and had one child together.*fn2 They separated and in the fall of 2002, the victim alleged she was a victim of domestic violence and twice obtained temporary restraining orders, which were ultimately dismissed. Criminal charges of terroristic threats and stalking were also filed, but downgraded in early November 2002.
Judge Vena described as follows the subsequent events that gave rise to the sexual assault charge:
On November 25, 2002, Petitioner waited for the victim to drop off their daughter and asked the victim to drive him into Newark. During the drive, Petitioner demanded the keys from the victim and drove her to his mother's house . . . in Maplewood. Upon arrival, Petitioner forced the victim to the basement; he got a kitchen knife and stabbed her on the left shin. Petitioner kicked and punched the victim in the face and throughout the body. Petitioner forced the victim to remove her clothing and forced vaginal intercourse on her. Subsequently, he struck her with a metal pipe.
Petitioner retained the victim in the basement until approximately 2 p.m. when he drove her into Elizabeth stating they were going to find the man she had slept with the night before. While in Elizabeth, the victim was able to jump out of the vehicle and call Elizabeth police. The victim was taken to Overlook Hospital where a sexual assault rape analysis kit was administered. Elizabeth police were able to recover the knife which Petitioner had thrown into a trash can but were unable to apprehend the Petitioner.
Maplewood Police obtained permission of Petitioner's mother to search the home at . . . . In the basement of the house, police found a pull-out co[u]ch with bloody sheets and comforter, a bloody towel, a pipe with hair fragments on it and one of the victim's socks. On November 30, 2002, the victim's automobile was found abandoned in East Orange. The victim advised Maplewood police that Petitioner had removed their daughter from her day care center in December of 2002 but had released her unharmed inside a town library. Warrants were issued for Petitioner on charges of First Degree Kidnapping (N.J.S.A. 2C:13-1) and First Degree Sexual Assault (N.J.S.A. 2C:14-2).
On February 8, 2003, the victim reported to the Morristown police that Petitioner made several threatening telephone calls to her place of employment and had threatened to harm her brother if he could not harm her. On June 7, 2003, the victim left her employment in Morristown and walked to her car in the municipal lot. Petitioner entered the victim's car on the passenger side and pointed a silver handgun at her. Petitioner told the victim to drive to a stolen BMW located on Route 80. Petitioner struck the victim with the barrel of the gun because he perceived she was driving to[o] fast. Victim observed that a Summit police officer was assisting a disabled vehicle and stopped the car and yelled out that Petitioner had a gun. The officer drew his gun and pointed it at the car. Petitioner pointed his gun at the officer and pulled the trigger but the gun did not discharge. Petitioner exclaimed, "why ain't these bullets firing?" Petitioner told victim to get out of the car, she opened the door and fell out onto the road. Petitioner drove off in the victim's car.
On June 8, 2003, the victim's car was found in Newark. A shell casing (.32 caliber) and a bullet (.32 caliber) were discovered inside the victim's car. [I]n September of 2003, the weapon (.32 caliber handgun), the victim's car keys and bullets (.32 caliber) were found at a location in Syracuse, New York. On September 9, 2003, the Petitioner was arrested in an apartment that he rented in Syracuse. On March 2, 2005, Petitioner pled guilty to First Degree Attempted Murder and Third Degree Aggravated Assault under Morris County Indictment No. 03-10-1170.
Defendant was charged in a June 2003 nine-count Essex County indictment with first-degree carjacking, kidnapping and aggravated sexual assault, second-degree aggravated assault, third-degree terroristic threats, and multiple weapons-related offenses. A month after his Morris County plea, defendant entered his plea before Judge Vena to the first-degree aggravated sexual assault charge. The ...