NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-02-0423.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian W. Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Maven.
Defendant Argelis Jaquez-Torres appeals the trial court's December 7, 2011 order dismissing his petition for post- conviction relief ("PCR") with respect to his 2010 conviction. We affirm.
On May 11, 2009, defendant pled guilty to an amended charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4), on the first amended count of a five-count indictment that had originally charged him with armed robbery (count one); unlawful possession of a weapon (count two); possession of a weapon for an unlawful purpose (count three); conspiracy (count four); and resisting arrest (count five). As part of the related plea agreement, the State agreed to recommend a maximum sentence of eighteen months, with an equivalent period of parole ineligibility, with the understanding that defense counsel would argue for a sentence of time already served. The plea agreement significantly reduced defendant's aggregate exposure under the indictment.
The record indicates that in Union City on November 15, 2007, defendant and a confederate held up the victim, demanding money. Defendant was in possession of a BB gun. Within a short time following the victim's report of the incident to the police, officers saw defendant. They gave chase, and apprehended him. The victim identified defendant at the scene. He admitted to the police that he had disposed of the BB gun in flight.
During the course of his plea colloquy, defendant specifically admitted that he had possessed the BB gun on the date in question, and that he had pointed it at another person. The court and the State found defendant's sworn admissions provided an adequate factual basis for the aggravated assault offense.
On January 22, 2010, the trial court imposed a sentence consistent with the plea agreement, consisting of an eighteen-month term without parole. The other counts of the indictment were dismissed. Defendant did not file a direct appeal of his sentence.
In or about March 2010, federal immigration authorities began proceedings to deport defendant, a native of the Dominican Republic who has been in this country as a permanent resident. The deportation measures prompted defendant to file his PCR petition with the trial court in December 2010. In his petition, defendant claimed that he had been deprived of the effective assistance of his trial counsel at the time of his plea. More specifically, defendant alleged that his plea counsel had only advised him that deportation was merely a possibility as a result of his conviction for aggravated assault, failing to tell him that such an offense triggered mandatory deportation.
After considering defendant's claims and the State's opposition, Hon. Paul M. DePascale, J.S.C., the same judge who had taken the plea and imposed sentence in this case, dismissed the PCR petition. Among other things, Judge DePascale concluded in his oral opinion that defendant had not shown a reasonable probability that, had he known more about his deportation consequences, he would have declined the State's plea offer and gone to trial. The judge noted that the State's case against defendant was "extremely strong, " and that defendant's "prospects for an acquittal under th[is] set of facts [were], at best, remote." In addition, the judge found it significant that defendant otherwise had been facing a twenty-year exposure under ...