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State of New Jersey v. Moses A. Brewster

February 7, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MOSES A. BREWSTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-03-327.

The opinion of the court was delivered by: Ashrafi, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 19, 2012

Before Judges Ashrafi, Hayden and Lisa.

The opinion of the court was delivered by ASHRAFI, J.A.D.

Seeking to avoid deportation some twelve years after he was convicted of drug charges, defendant Moses Brewster appeals from January 2011 orders denying his petition for post-conviction relief (PCR). He claims he was deprived of effective assistance of counsel when he pleaded guilty in 1998 because his attorney did not advise him he would be deported. On both factual and legal grounds, we reject defendant's contentions and affirm denial of his PCR petition.

I.

Defendant is not a United States citizen. He was born and raised in Jamaica and came to the United States in 1988 at the age of twenty-three. He had no criminal record before his 1997 arrest for possession of about five pounds of marijuana. A Passaic County grand jury indicted him on charges including third-degree possession of marijuana with intent to distribute in a school zone. N.J.S.A. 2C:35-7. If convicted of that charge, defendant faced a minimum mandatory term of three years imprisonment and a maximum state prison term of five years. Ibid.; N.J.S.A. 2C:43-6(a)(3).

With the advice of counsel, defendant accepted a plea offer in accordance with N.J.S.A. 2C:35-12 that would avoid the mandatory period of incarceration and instead recommend a sentence of probation with 364 days to be served in the county jail. At his plea hearing on June 1, 1998, defendant admitted he was to deliver the five pounds of marijuana to a person in New York City, for which task he expected to be paid.

The judge at the plea hearing did not question defendant about the possibility that he might be deported. The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea. Question 17 on the plea form asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant answered "yes." In open court, defendant acknowledged that he had discussed the questions and answers on the plea form with his attorney and had enough time to do so, that the answers were accurate, and that he had no questions to ask the judge about the contents of the plea form.

On September 25, 1998, the judge sentenced defendant to two years of probation with 364 days to be served in the county jail. Defendant did not file a direct appeal. He served the sentence.

In April 2010, almost twelve years after his plea and conviction, defendant was arrested by federal authorities and detained in Arizona on a complaint for deportation based on his conviction in New Jersey. He retained the services of an attorney and successfully moved in federal court to stay the deportation proceedings pending his effort to vacate the 1998 conviction. He filed his PCR petition in this State on August 18, 2010. The same judge who had taken defendant's plea and sentenced him denied the PCR petition by order and a statement of reasons dated January 7, 2011. Subsequently, by order and letter dated January 25, 2011, the judge denied defendant's motion for reconsideration.

On appeal, defendant makes the ...


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