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State of New Jersey v. Fernando Soriano

September 26, 2012

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FERNANDO SORIANO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1774.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2012

Before Judges Cuff and Fuentes.

By leave granted, the State appeals from the order of the trial court granting defendant Fernando Soriano post conviction relief (PCR) and setting aside his 2003 conviction for third degree burglary, N.J.S.A. 2C:18-2(b), and fourth degree defiant trespass, N.J.S.A. 2C:18-3(c). Relying on State v. Nunez- Valdez, 200 N.J. 129 (2009), the trial court found that (1) defendant's attorney gave him incorrect legal advice concerning the immigration consequences of his conviction at the time he pleaded guilty to these offenses, and (2) defendant would not have pleaded guilty if he had been given the correct legal advice. Because the record does not support the court's findings, we reverse.

I

In October 2003, a Hudson County Grand Jury returned Indictment No. 03-10-1774 against defendant charging him with third degree burglary, N.J.S.A. 2C:18-2(b); third degree resisting arrest, N.J.S.A. 2C:29-2(a); and second degree attempted aggravated arson, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:17- 1(a). On November 18, 2003, defendant pleaded guilty, pursuant to a negotiated agreement with the State, to one count of fourth degree defiant trespass of a dwelling, N.J.S.A. 2C:18-3(b),*fn1 and, after waiving his right to grand jury presentment, to an accusation charging him with third degree burglary, N.J.S.A. 2C:18-2(b).*fn2 Defendant was represented at the time by a staff attorney from the Hudson County Office of the Public Defender.

Under the terms of the plea agreement, the State was free to argue that the court sentence defendant to a term of imprisonment not to exceed three years on the burglary and a concurrent term of eighteen months on the defiant trespass. Given defendant's lack of criminal record, defense counsel would argue for a probationary sentence conditioned upon defendant participating in an outpatient program for alcoholism. Because defendant's post conviction relief is predicated on what defense counsel allegedly said to him at the time he pleaded guilty, we recite the relevant parts of the plea hearing at length:

DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q. With regard to the amended Count 1 of Indictment 1774 of the 2003 term, Mr. Soriano, on the 24th day of May of [2003] in Union City, did you enter a basement apartment at . . . New York Avenue in Union City?

A. It was the first floor.

Q. Well, we can conform the charge to reflect that. Did you enter an apartment of another person on the first floor of that building?

A. That was the only apartment, yeah.

Q. Right, did you have the owner's permission to enter the apartment?

A. No.

THE COURT: And you knew you did not have the owner's permission when you entered that apartment, is that correct?

THE DEFENDANT: I wasn't thinking, I was really drunk, so.

THE COURT: Well, you were drunk, but you're not claiming that you did not [sic] have permission to go into that apartment?

THE DEFENDANT: No.

THE COURT: Okay. You're saying that you knew what you were doing?

[DEFENSE COUNSEL]: You knew it wasn't your apartment.

THE DEFENDANT: Yeah, I knew it wasn't.

THE COURT: And you knew you did not have permission.

THE DEFENDANT: Yeah.

THE COURT: [Prosecutor], do you have any questions?

[Prosecutor]: No questions.

THE COURT: The Court is satisfied that a sufficient factual basis has been submitted to me upon which I can accept a plea of guilty to the charge of criminal trespass. And I want you to understand, sir, that if you were convicted of that particular offense, that the Court would have the power to sentence you to a jail term of up to 18 months, to fine you up [to] $7,500, and additionally I would have to impose a criminal crimes penalty of $50 and a Street Crimes penalty of $75, and a Law Enforcement penalty of $30, you understand that?

THE DEFENDANT: Yes.

THE COURT: You may proceed [Defense Counsel].

DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q. With regard to the Accusation, Mr. Soriano, on the 31st day of October of [2003] in Union City, did you enter an apartment at . . . Palisade Avenue without the permission of the owner?

A. Yes.

Q. And while you were there, did you steal or attempt to steal something?

A. No.

Q. Did you take an item which did not belong to you?

A. Yes.

Q. A pillow from the sofa in fact, correct?

THE COURT: What was that did you say?

[DEFENSE COUNSEL]: It was a cushion, one of the cushions off of a sofa.

THE COURT: And you say you took that item, you know it did not belong to you after you had gone into that structure without permission.

THE DEFENDANT: Yeah, the officer told me, because I don't remember anything from that - -

THE COURT: The officer said what?

THE DEFENDANT: The officer told me that that's what I had on when I was walking. Yes.

THE COURT: The officer said that you had a cushion with you when you were walking, but you don't remember taking - -

THE DEFENDANT: I don't remember entering the person's house or taking the pillow. I don't remember how I got home from work, but it's on the report that ...


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